A Dutch proposal on privileged data shows why access, separation and logging matter long before a seizure.
A founder opens a shared mailbox and searches for advice received during a difficult acquisition. The message is there, but so are supplier invoices, staff questions, draft contracts and a long thread forwarded to several colleagues. One attachment sits in the finance system. Another was saved to a personal laptop.
Nothing looked disorderly while the work was moving quickly. Under scrutiny, the same records tell a different story. The company may know that some communications are sensitive, yet struggle to identify where they travelled, who opened them and which version is complete.
That ordinary scene gives practical weight to the Council for the Judiciary’s advice of 9 September 2026. The Council supports modernising how suspected privileged information is filtered from large digital datasets in criminal investigations. Its support comes with a firm condition: faster handling still needs clear access controls, reliable logging, careful search methods and judicial protection.
The proposed shift
Under the proposal, the initial selection of data that may contain privileged material would move from the investigating judge to the Public Prosecution Service. The investigating judge would retain specified roles when inspection or further filtering requires judicial involvement.
The proposal is part of the legislative development of the new Code of Criminal Procedure. The planned commencement date is 1 April 2029, and supplementary legislation is still being developed. The proposed rules concern criminal procedure. They do not create a new general compliance duty for ordinary Dutch businesses.
The governance signal is useful now. Digital investigations no longer involve a few labelled folders. They can involve mailboxes, phones, cloud drives, accounting systems, backups and exported data. The Council reports that, in major fraud cases involving many privilege holders, releasing collected data to investigators can take five or six years. That is a practice observation from complex cases. It shows the scale of the filtering problem.
The proposed solution is not simply to move the work from one desk to another. The Council wants the process to show who had access, which search terms were used, what was inspected, how the forensic tool performed and whether the log itself can be trusted. Speed without that trail would weaken the protection the procedure is meant to preserve.
Confidential is not the same as privileged
Small businesses often use the word confidential broadly. A price agreement, payroll export, medical note, board paper and lawyer’s advice may all deserve restricted access. They do not all have the same legal status.
Professional privilege depends on the professional role, the communication and its context. Communications involving lawyers, civil-law notaries and doctors can fall within recognised privilege. Copying an accountant, tax adviser or other adviser into an email does not create blanket protection. Nor does placing a document in a folder called legal.
That distinction matters because companies frequently mix categories. A lawyer’s advice may be forwarded inside a commercial discussion. A tax question may sit beside routine bookkeeping instructions. Board reasoning may appear in chat messages, while the signed decision is stored elsewhere. The company then has sensitivity without separation.
I read this as a governance weakness before I read it as a criminal-procedure issue. When records are mixed, the business depends on outsiders reconstructing distinctions that its own systems failed to preserve. That takes time, costs money and draws management away from customers, staff and cash.
A filter is only as good as its trail
Rechtspraak’s working method treats search terms, access arrangements, confidentiality officers and documentation as central parts of digital filtering. The 2026 advice goes further into the technical risk. Material hidden in one forensic application may become visible again when processed through another.
The lesson reaches beyond investigations. A digital lock without an access history offers limited assurance. A deletion that survives in exports or backups is not a complete deletion. Permissions that disappear during a system migration can undo years of careful separation.
The Supreme Court added another practical dimension in its judgment of 12 March 2024. It held that a complaint court must assess whether privilege was sufficiently protected during filtering under the investigating judge’s direction. In that case, the filtering process used an extensive list of search terms with defence input. The Court also considered it relevant that the complainant retained a complete administration and could identify concrete examples of concern.
For an owner-manager, that point is valuable. A general statement that sensitive material may have been mishandled is weaker than identifying particular contacts, document groups, dates and systems. The company’s own records remain important even when an authority holds a copy.
What good boundaries look like
The sensible business response is not to declare everything privileged. That would confuse legal status with internal preference. A better starting point is to understand where sensitive records actually live and who is responsible for them.
Take the founder searching the acquisition mailbox. A useful review would follow one important decision from beginning to end: the first proposal, adviser correspondence, draft versions, approval, signed agreement and accounting treatment. Can the business retrieve that sequence? Can it explain who had access? Does the same material exist in chat tools, private devices or old backups?
This is also where governance meets cost. Weak record boundaries rarely appear as a separate line in the monthly accounts. Their price arrives later through forensic work, legal review, delayed decisions and management hours. By then, the original saving from informal storage has usually vanished.
The Council’s advice concerns the state’s handling of privileged information, but it leaves directors with a quieter question. If company data had to be separated tomorrow, would its meaning survive the journey?
Good governance does not require a perfect archive. It requires enough order to distinguish ordinary business records from genuinely sensitive communications, enough restraint to limit unnecessary access, and enough history to explain what happened. Confidentiality starts with trust. When records come under pressure, trust needs structure.
If you want to test whether your sensitive records have clear boundaries, contact me for a practical governance review.
The data, sourcing, and analysis behind this article were conducted by Paolo Maria Pavan. AI was not used to identify sources, build the factual basis, or produce the analytical judgment contained here. AI was used only as a drafting aid. The final English text was personally reviewed, edited, and approved by Paolo Maria Pavan before publication.
References
- Rechtspraak voorstander om aanpak rondom filteren verschoningsgerechtigde informatie te moderniseren | Rechtspraak
- Raad voor de rechtspraak - Second Supplementary Act and the proposed shift in filtering responsibility
- Rechtspraak - Present judicial filtering practice for digital privileged material
- Hoge Raad via Rechtspraak - Supreme Court framework for judicial scrutiny after digital filtering
- Rijksoverheid - Legislative status and timing of the new Code of Criminal Procedure
- Rechtspraak - Technical guidance on filtering digital privileged material
