The Guidelines for Safeguarding Professional Confidentiality will come into effect on June 1. This guideline describes the rules that apply to the Public Prosecution Service (OM) and law enforcement when they come into contact with data that falls under the professional confidentiality of a confidant, such as doctors and lawyers.
For the OM, professional confidentiality is a fundamental legal principle. The confidentiality protects the confidential communication between the citizen and the confidant, such as their lawyer. The OM may not access confidential communications with confidants and may not use them in a criminal investigation. Only in exceptional cases is access and use possible, for example, if the confidant themselves is suspected of a serious crime. For that, the investigating judge must first give permission.
During the criminal investigation, the OM can seize or obtain large amounts of data through the use of (special) investigative powers. This includes data on a smartphone, but also a digital business administration. There may be a reasonable suspicion that among those data is material that falls under the confidentiality of a professional confidant, such as emails and messages between the confidant and the client. Because that communication must remain confidential, a filtering must be performed so that that data does not become available to the law enforcement officers conducting the criminal investigation.
For a long time, it was unclear how that filtering should take place practically and what the roles and responsibilities of the OM, the investigating judge, the lawyer, and law enforcement are. The Supreme Court ruled on March 12, 2024, that the law in this area was not clear enough, which also left unclear how the procedures could be properly executed. The Supreme Court has therefore provided clarity on the procedures to be followed in its ruling of March 12, 2024.
Why these Guidelines?
The OM has incorporated the ruling of the Supreme Court into guidelines that describe how to handle confidential material from professional confidants. Of course, the OM prefers not to obtain data that falls under the confidentiality, but often that cannot be avoided. The guidelines stipulate that in cases where it can reasonably be suspected that data from confidants are present in the data being investigated, a filtering of this data must be carried out. This filtering must be performed by an investigating judge, unless the OM can (automatically) perform the filtering without accessing the confidential material itself. The law enforcement officers conducting the criminal investigation may not, in any way, gain access to the data that may fall under the confidentiality. The data that falls under the confidentiality must be destroyed so that they cannot be used in the criminal investigation.
The OM and law enforcement must standardly follow this procedure, unless there is an emergency in which filtering cannot be awaited. This concerns situations where the investigation cannot be postponed because otherwise the life, safety, or health of people is seriously endangered. Think of serious crimes such as kidnapping or missing persons. These are indeed exceptional situations.
Guus Schram, member of the College of Prosecutors General: “The protection of confidentiality is a shared responsibility of all parties working in the criminal justice chain. The OM, the judiciary, law enforcement, and the Dutch Bar Association (NOvA) have had constructive discussions over the past year and a half to make agreements on how to deal with confidentiality. These parties have also provided their views in the context of drafting these guidelines. The College is pleased that there is a guideline that provides clarity about the operation of the OM. The guideline respects both the interests of confidentiality and the societal interest of effective investigation and prosecution. The chain consultation will continue to take place in the future to safeguard confidentiality now and in the future.