VG Potsdam - 1 L 134/20

VG Potsdam - 1 L 134/20
Court:	VG Potsdam (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(e) GDPR § 5 (1) Bbgdsg § 3 BDSG
Decided:	22.07.2020
Published:
Parties:
National Case Number/Name:	1 L 134/20
European Case Law Identifier:	ECLI:DE:VGPOTSD:2020:0722.1L134.20.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Landesarbeitsgerichts Berlin-Brandenburg (in German)
Initial Contributor:	n/a

Regional Administrative Court finds that audit report and board meeting minutes must be submitted in full where necessary for performance of supervisory function by authority

English Summary

Facts

A regional supervisory authority requested access to an association’s board meeting minutes as well as an external auditor’s report in the context of an investigation into the association’s managing director’s conduct. The association refused to submit the requested information entirely and unredacted, partially relying on privacy rights.

The supervisory authority acknowledged the potential legitimacy of redactions where merely personal data was concerned, but claimed that redactions went far beyond this, and included information on employment contracts and pay crucial to the performance of their rights and duties as supervisory authority.

The documents had also been requested by the regional audit office (Landesrechnungshof).

Dispute

Could the association refuse to submit information to their supervisory authority based on data protection laws?

Holding

The regional court found, inter alia, that the association could not rely on privacy regulations as an objection to submitting the documents requested by their supervisory authority.

The court confirmed applicability of § 2 (1) 1 BbgDSG (Brandenburgisches Datenschutzgesetz – regional privacy law Land Brandenburg), corresponding to § 3 BDSG (Bundesdatenschutzgesetz – Federal Data Protection Act) and implementing Art 6 (1) e) GDPR, as a basis for access to personal data by a supervisory authority.

It further concluded that the element of necessity, as required by the applicable provisions, was met for the specific case.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Tenor
1. order the suspensive effect of the action VG 1 K 337/20 against the defendant's decision of 31 January 2020 with regard to its operative part IV (threat of substitute performance)

Otherwise, the application is rejected.

The applicant shall bear 80 % of the costs of the proceedings and the defendant 20 %.

2. the amount in dispute is fixed at EUR 10,000.00.

Reasons
I.

1
After an initial request for transmission by e-mail dated 29 November 2018, the defendant, by order of 10 December 2019, in the exercise of its legal supervision, requested the Wasser- und Bodenverband N... to send four minutes of the meetings of the Association's Board of Directors, namely the meetings of 13 July, 22 August, 16 September and 19 October 2018, and to send the 'expert opinion of the auditor, which is relevant to the allegations against [the Managing Director of the Association,] Mr D.. on behalf of the Association". In support of his statement of reasons, he referred to the right to information under Section 74 (1) of the Wasserverbandsgesetz (WVG). In a meeting on 6 December 2019, auditors of the Regional Court of Audit had requested the respondent, as a supervisory authority, to request the documents within the scope of its right to information and to submit them to the Regional Court of Audit. By letter of the applicant of 6 January 2020, the Association sent the respondent the "Minutes of the deliberations of 13 July 2018", the "Minutes of the deliberations of 22 August 2018" and the "Statement of the auditor on the extended question". In all documents, blackening or deletions (deletions) of (individual) names and also other parts of the text had been carried out. With regard to the requested minutes of 18 September 2018, it was stated that a meeting on this day was "not remembered" by the undersigned applicant and that it was therefore impossible to send them. With regard to the meeting of 19 October 2018, it was added that no formal minutes of this meeting had been produced.

2
Then, by order of 31 January 2020, the defendant ordered the Wasser- und Bodenverband N... - in point I - that the defendant

3
- the minutes of the board meeting of 13 July 2018,

4
- the minutes of the board meeting of 22 August 2018,

5
- the minutes of the board meeting of 18 September 2018 and

6
- the auditor's report dated 30 August 2018 ("Statement on extended questions within the framework of the audit of the Wasser- und Bodenverband N... and the M... “)

7
to be issued by the supervisory authority by 10 February 2020. Under item II, the immediate execution of the order under item I was ordered. Item III contained the decision on costs. With regard to item IV, a threat was made to substitute performance in the event that the association did not comply with the order. In support of paragraph I, it was stated, inter alia, that the association had only partially complied with the request for information. Minutes and other documents were to be handed over complete, unvarnished and with all annexes. The data protection law did not apply vis-à-vis the supervisory authority. The minutes of 13 July 2018 had not yet been sent at all, as the document that had been submitted as such was not the minutes. The minutes of 22 August 2018 were to be sent without blackening. Only four of a total of at least 23 pages of the report referred to had been sent. The order of immediate execution was necessary because knowledge of the documents was the basis for the exercise of supervision. The public interest in any supervisory measures that may currently be necessary and the elimination of unlawful conditions outweighed the interest of the Association in not issuing the (complete) documents. The threat of substitute performance was based on § 76 of the WVG in conjunction with §§ 28, 32 of the Brandenburg Administrative Enforcement Law (VwVGBbg). Under Paragraph 76(1) of the WVG, if a supervisory instruction is not complied with, the supervisory authority may carry out the necessary work itself or have it carried out by another party at the expense of the association.

8
On 14 February 2020, the applicant applied for interim relief under Section 80(5) of the Administrative Court Rules (VwGO). He had rightly made all personal data of the managing director of the Wasser- und Bodenverband N..., in the documents sent to the defendant, illegible. Mr. D... had objected to the disclosure of his personal data to the defendant first orally and then in writing by 5 February 2020. The association had thus fulfilled the defendant's claim under § 74 Para. 1 WVG by submitting the documents. The defendant was not entitled to a claim for the handing over of documents that had not been partially (namely relating to Mr D...) rendered illegible. The data protection law also applied to the supervisory authority. According to § 3 of the Federal Data Protection Act (BDSG) as well as § 5 para. 1 of the Brandenburg Data Protection Act (BbgDSG), the processing of personal data by a public body was only permissible if it was necessary for the fulfilment of the tasks within its competence. This is not evident in the present case. Moreover, the defendant had not heard the association as required before issuing the order and had not exercised its discretion under Section 74 (1) of the WVG. Finally, as regards the threatened substitute performance, the defendant had not been allowed to threaten it for reasons of principle and in this respect there was also a lack of information on the expected costs.

9
By letter of 20 February 2020, the applicant sent to the defendant the minutes of the Board meeting of 13 July 2018, which in his view are now correct; previously, a false document had been forwarded by the Registry. The requested further minutes of 18 September 2018 had not been prepared due to "disagreements in the Board of Managing Directors at the time and the unrest in the office" and could therefore not be submitted. In addition, a version of the designated expert opinion of the auditor dated 30 August 2018 - again with the personal data of the Association's managing director missing - was made available.

10
The applicant claims that the Court should rule accordingly,

11
Restore or order the suspensive effect of the action VG 1 K 337/20 against the defendant's decision of 31 January 2020

12
The defendant claims that the Court should

13
to reject the motion,

14
and states in support of its application that the latter is already inadmissible as regards the documents submitted in part before and after the urgent application was lodged by the applicant (inter alia, by letter of 20 February 2020) for lack of any legal interest in bringing proceedings. Insofar as the applicant had only blackened the name of the managing director in the documents thus published, this was ultimately harmless, since it was in each case recognisable that this name alone had been blackened. However, further data, in particular in the expert opinion, had been blackened, namely obviously the data of various employment contracts and various amounts paid. The minutes and the expert opinion were therefore to be published unedited. In the version of the minutes of 22 August 2019 handed over, extensive blackening was found, so that the defendant's right to information was not completely fulfilled. The supervisory authority was not required to give reasons why it required the submission of certain documents and information. It only had to concern matters of the association. For the rest, reference was also made to the request by the Regional Court of Audit for justification. This was not contrary to data protection law. The data processing was carried out in the context of the exercise of official authority. It was not necessary to give separate reasons why the supervisory authority had to receive the names of the managing director and of members of the board of management in the documents without blackening them within the scope of its right to information. The State Commissioner for Data Protection and the Right to Inspection of Files, according to a statement obtained, shares the opinion of the defendant. As far as the order for immediate execution is concerned, it is clear that it is not possible to wait for years to see whether the supervisory authority needs to intervene actively. If an association were to draw up an expert opinion on the conduct of its managing director, it was obvious that the supervisory authority would have to examine whether it had to intervene. The complainant's failure to state the expected costs of the substitute performance was merely a target provision. At the time the ruling was issued, these costs could not have been foreseen in concrete terms either. A simple taking of the documents on the occasion of a board meeting would probably not cause any costs.

II.

15
Pursuant to § 80 para. 5 sentence 1 alternative. 1 and 2 VwGO, the application is partially admissible. Insofar as it is admissible, it is well-founded to the extent evident from the operative part, i.e. with regard to the threat of substitute performance, and otherwise unfounded.

16
1) The application is already inadmissible for lack of an interest in bringing proceedings in so far as the applicant seeks the restoration of the suspensory effect of its action against the contested order of 31 January 2020 also with regard to the elements which it has already voluntarily complied with. The applicant is

17
- by sending the minutes of the meeting of 22 August 2018, which have been partially redacted, as an annex to his letter of 6 January 2020, and

18
- with the transmission of the - again partially blackened - further documents (minutes of 13 July 2018 and expert opinion of 30 August 2018 amounting to 23 pages with annexes)

19
by its agent to the defendant, after having made the urgent application, has already complied in part with the order by letter of 20 February 2020. Nevertheless, he did not limit his request to restoring the suspensive effect of the action to the extent that he had not yet complied with the order of 31 January 2020 (publication of unblackened versions), but he comprehensively requested the restoration of the suspensive effect with regard to item I of the order. In this respect, he has sought legal protection which he obviously does not consider necessary himself. In this respect, he has no need for legal protection.

20
2) The application, insofar as it is admissible, is not admissible with regard to the old law in accordance with § 80 para. 5 sentence 1. 1 VwGO on the order of the suspensive effect of the action against the threat of substitute performance in section IV of the order. In other respects, namely in so far as, pursuant to § 80.5 sentence 1 alternative sentence 1 of the VwGO, the court is not entitled to order the partial application to have suspensive effect. 2 VwGO, the application is unfounded in so far as it is directed at restoring the suspensive effect of the action against the obligation contained in No. I of the order to submit the designated documents in unvarnished form.

21
a) The defendant has substantiated its particular interest in the immediate enforcement of the decision of 31 January 2020 in a form that satisfies the requirements of Article 80 (3) sentence 1 VwGO. The statement of reasons must be recognisably independent of the statement of reasons for the administrative act; in doing so, the essential factual and legal reasons from the point of view of the authority must be stated which, beyond general considerations, result in a special public interest in enforcement in the specific individual case. This includes in particular that it may not - as a rule - limit itself merely to a repetition of the reasons on which the administrative act is based, to a mere reproduction of the text of § 80.2 sentence 1 no. 4 of the German Rules of the Administrative Courts (VwGO) or to merely formulaic, abstract and ultimately empty phrases. By contrast, § 80.3 sentence 1 VwGO does not require that the reasons given for the particular interest in enforcement are also convincing in material terms, that is, that they also justify the measure taken in terms of content. The grounds at issue here are not of a merely formulaic nature in this sense. The defendant justified the immediate enforcement, among other things, by stating that knowledge of the association's affairs was the starting point for all further supervisory measures and that such measures currently necessary to eliminate possibly unlawful conditions would possibly lead to a sufficient interest in immediate enforcement. This (still) satisfies the aforementioned standards.

22
(b) In proceedings for interim relief under Paragraph 80(5), first sentence, of the VwGO, the court shall weigh up its own interests on the basis of a summary review of the factual and legal situation of the main case at the time of the court's decision. If the contested administrative act proves to be manifestly unlawful, the suspensive effect must be ordered because there can be no public interest in the execution of manifestly unlawful administrative acts. On the other hand, the application for interim relief must be rejected if the contested administrative act appears to be manifestly lawful. If, on summary review, neither the manifest legality of the contested administrative act nor its manifest unlawfulness can be established, the court shall make its decision by weighing the public interest in immediate execution against the private interest in the suspensive effect of the appeal. In cases of a statutory immediate enforcement order pursuant to § 80.1 sentence 1 nos. 1 to 3 VwGO, it must be noted that the legislature has ordered a fundamental priority of the enforcement interest and that special circumstances are therefore required to justify a decision deviating from this. Thus, if the legislature - as here with regard to the threat of enforcement under § 16 of the Administrative Enforcement Act for the Land of Brandenburg - has decided in favour of immediate enforcement, the court, in addition to examining the prospects of success in the main proceedings, is in principle only required to consider the individual case with regard to such circumstances as are presented by the parties involved and which may justify the assumption that in the specific case in question a deviation from the basic legislative decision is necessary by way of exception.

23
According to the above principles, such an overriding interest in suspension on the part of the applicant can be established here solely in relation to the threat of substitute performance. Apart from this, namely in its item I, the order of 31 January 2020 proves to be neither obviously nor in all probability unlawful after the summary examination required in the review in the proceedings for interim relief. The interest in suspension does not outweigh - with reference to item I of the order - the interest in the restitution order being enforced, not even for special circumstances of the individual case.

24
(aa) The order to surrender documents is formally lawful In particular, there is no lack of the hearing required under § 28 of the Administrative Procedure Act (VwVfG) in conjunction with § 1(1), first sentence, of the Administrative Procedure Act for the Land of Brandenburg (VwVfGBbg).

25
The association had ample opportunity to comment not only on the publication of the unvarnished documents, but it had already been aware since the defendant's e-mail of 29 November 2018 that the supervisory authority's claim for information would be asserted in a legal form, namely, if necessary, by way of legal action. Prior to the issuance of the order of 31 January 2020, the defendant, in a letter dated 10 December 2019, had already decided to request the association to surrender, among other things, the documents in dispute here. In doing so, it also gave the defendant the opportunity to comment on the claim for information thus asserted. In response to this request, the applicant actually submitted its comments by e-mail dated 19 December 2019 in the context of a request for an extension of the deadline, and already referred there to the Basic Data Protection Regulation and the view that "individuals" had "prohibited" the disclosure of personal data. The scope of the right to information and the question of whether the defendant was entitled to demand the release in its entirety were also addressed. The respondent's letter of 2 January 2020, in which a brief statement was made on the right to information and data protection aspects, was answered only by the Association's letter of 6 January 2020, in which individual documents were sent partially blacked out; no fundamental statement on the respondent's request for the transmission of data was made. In consideration of this correspondence, and thus only after the Association had been informed several times about the asserted claim to information and after its comments had been taken into account, the respondent issued the disputed order of 31 January 2020. Thus the respondent has not complied with the obligations under § 28.1 of the Basic Law. 1 VwVfG; he has informed the association about the assertion of his right to information and the background to this (the request for submission of the Regional Court of Audit), has given him sufficient opportunity to comment (also in consultation with a lawyer) and has also sufficiently clarified the obligation to hand over the documents, which in his view still exists, through the correspondence that was conducted. That in this respect an order was ultimately to be issued had already been announced with the reference to the possible judicial assertion of the matter.

26
bb) The order of 31 January 2020 is also materially lawful.

27
The legal basis of the decision on point I is Section 74(1) sentences 1 and 2 of the WVG. Accordingly, the supervisory authority may inform itself about the affairs of the Association (sentence 1). Pursuant to sentence 2, the supervisory authority may exercise this right of information - inter alia - by requesting files and other documents. The request for the minutes and the expert opinion in question here is casually covered by the request for files and other documents.

28
In so far as the applicant challenges the legality of the order by arguing that the defendant did not exercise its discretion and that there was a lack of discretionary considerations in the order, this does not go further. It is true that the extent to which the supervisory authority makes use of its right to information is at its dutiful discretion. However, if there is an objective reason, the exercise of the right to information is always free of discretionary errors,

29
thus already with regard to the parallel provision of the then Water Association Ordinance Rapsch, WVVO, 1989, § 121 marginal no. 2; see also König in Reinhardt/Hasche, WVG, 2011, § 74 marginal no. 5.

30
In the present case, the defendant has, in support of the order under point I, referred inter alia to its previous written request of 10 December 2019 addressed to the applicant. There the accusations against the managing director D.. to which the auditor's report referred. This referred to an easily sufficient factual reason for the exercise of the right to information, which, incidentally, was exercised in its mildest form in the present case, namely only by requesting the transmission of minutes (of meetings in which the supervisory authority had the right to participate) and an expert opinion obtained by the association anyway, not by giving up the preparation of written reports or by means of on-site inspections or audits at the association's headquarters. The respondent is not required to provide the applicant with any further reasons for its decision to request documents from the applicant

31
The legality of the order of 31 January 2020 is not precluded by the data protection aspects invoked by the applicant.



32
According to the relevant state data protection law for the participants according to § 2 para. 1 sentence 1 BbgDSG, the processing of personal data by public authorities is permissible if it is necessary to fulfil the task which is the responsibility of the responsible person or in the exercise of official authority which has been transferred to the responsible person, § 5 para. 1 BbgDSG (parallel: § 3 BDSG). According to § 5 para. 2 sentence 1 BbgDSG, personal data may be processed for the purpose of exercising, among other things, supervisory and control powers, whereby according to sentence 2 the processing is again only permissible if it is necessary for the exercise of these powers.

33
These conditions are met here, in particular the processing of the personal data in question here in the form of the transmission of the unvarnished documents is necessary for the fulfilment of the supervisory task assigned to the defendant. These supervisory tasks obviously also include the supervision of the activities of the managing director of the Wasser- und Bodenverband N.. . If there is any question of possible conduct in breach of duty in his person, the supervisory authority must promptly exercise its right to be informed about his activities for the Association. No further discussion is required to show that the minutes requested here and the expert opinion drawn up precisely with regard to the activities of the managing director are part of the core of the subject matter on which the supervisory authority must be able to inform itself in order to satisfy its right - and duty - to supervise the association and the activities of the managing director of this association. The statements of the applicant, who believes that the necessity of data processing is not evident, are not comprehensible.

34
Nor does anything else follow from the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, etc. (Basic Data Protection Regulation - DSGVO). According to Section 6 (1) (e) of the DSGVO, data processing is lawful if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. This means that there are no significant differences to the described prerequisites for processing in accordance with the provisions of state data protection law, which were created pursuant to Section 1 (1) sentence 1 of the Federal Data Protection Act (BbgDSG) to implement the Basic Data Protection Regulation.

35
cc) Insofar as the applicant party wishes to further submit that minutes of the board meeting on 18 September 2018 were not produced, this cannot lead to the unlawfulness of the order for restitution, if only because this was not substantiated by the applicant.

36
c) In contrast, the suspensive effect of the action against the threat of a substitute performance in number IV of the notice of 31 January 2020 pursuant to section 80 subsection (5) sentence 1 Old Law is excluded. 1 i. VwGO in conjunction with para. 2 no. 3 VwGO. The threat of substitute performance in the event that the Association does not fulfil the obligations ordered in No. I by 10 February 2020 is obviously unlawful.

37
The defendant has based the threat of substitute performance on § 76 WVG in conjunction with §§ 28, 32 VwVGBbg. Pursuant to § 76 WVG, the supervisory authority may indeed order the necessary measures in place of the association and carry them out itself or have them carried out by someone else at the latter's expense if the association does not comply with an instruction issued by the supervisory authority on the basis of its supervisory authority within a set period of time. However, this provision is obviously not intended for the present case of ordering the surrender of documents of the Association, but refers, for example, to measures necessary after the conclusion of a supervisory procedure. With regard to the enforcement of the right to information under § 74.1 WVG, the defendant was not able to make clear to the end of the case by his statement in reply to the application in what way the order for the surrender of documents issued should be enforceable at all by way of substitute performance. The enforcement of the right to information is rather based solely on general administrative enforcement law.

38
According to § 32 BbgVwVG, if the obligation to perform an act which can be performed by another person (justifiable act) is not fulfilled, the enforcement authority may, at the expense of the debtor, commission another person to perform the act or perform the act itself.

39
It may be questioned whether the publication of documents by the association or its head in dispute here constitutes a justifiable act that can be carried out by a person other than the association itself (or one of its employees). This is because the "surrender" in a narrower sense can only be carried out by the association (or its employees) itself. Even if one would assume a justifiable act in favour of the respondent, the selection of substitute performance as a (threatened) means of coercion does not appear to be proportionate in any case, cf. § 29.2 and 29.3 of the BbgVwVG. The substitute performance already does not automatically constitute a suitable means of enforcing the order under item I of the order of 31 January 2020, since representatives of the respondent or other persons commissioned by the respondent have no knowledge of where the documents can be found. In any event, a comprehensive search of the Association's documents would also result in a drastic impairment of its sphere, including the presumed disclosure (and thus in the legal sense: processing) of extensive personal data. It therefore does not appear to be the mildest means in relation to the application of a penalty payment, for example, § 29.2 BbgVwVG. For the same reason, the substitute performance would also be unreasonable (disproportionate in the sense of the law), § 29 (3) BbgVwVG.

40
3) The decision on costs is based on § 155 (1) sentence 1 old. 2 VwGO. The quotation is based on the applicant's failure to surrender the four (unvarnished) documents referred to in point I of the order in dispute and on the fact that it won with regard to point IV of the order. The determination of the amount in dispute follows from §§ 53 para. 2 no. 2, 52 para. 1 of the Court Costs Act. The court determined the value of the subject matter in dispute at EUR 5,000.00 for each of the four documents to be handed over under the order. The resulting value of EUR 20,000.00 was halved in view of the provisional nature of the sought decision in the interim relief, item 1.5 of the Catalogue of Disputed Values for Administrative Jurisdiction. The threat of substitute performance associated with the basic ruling was not taken into account in the calculation of the amount in dispute pursuant to para. 1.7.2 sentence 1 of the Catalogue of Arbitration Values in Litigation.



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