RvS - 202002066/1/A3

RvS - 202002066/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15(3) GDPR
Decided:	03.03.2021
Published:	03.03.2021
Parties:	The municipality of Venlo
National Case Number/Name:	202002066/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2021:452
Appeal from:	RBLIM (not published) AWB - 19 _ 754
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Rechtspraak.nl (in Dutch)
Initial Contributor:	Giel Ritzen

The Council of State held that the obligation to provide a copy of the personal data pursuant to Article 15(3) GDPR does not mean that an administrative body is obliged to provide a copy of the documents in which those personal data are contained.

English Summary

Facts

Controller is the municipality of Venlo. Data subject worked for the municipality as administrative assistant until March 2017, on a temporary basis via an employment agency. During this period, the data subject made several reports of suspected wrongdoing, one of which was investigated externally by Ernst and Young, on request of the municipality executive. The data subject was reprimanded two times in 2016, for certain remarks they had made. As of 1 April 2017, the hiring of data subject was prematurely terminated.

On 10 July 2018, data subject made two requests. One access request pursuant to Article 15 GDPR, and one for the disclosure of documents under the Government Information (Public Access) Act (hereafter: Wob-request). On 3 September 2018, the data subject filed another access request. In the Wob-request, the data subject asked to provide him with copies of, or to allow him to inspect, documents that directly or indirectly refer to reports he made of suspected wrongdoing, to the whistleblower process that followed two of these reports, to the two warnings he received and to the termination of his contract of employment as of 1 April 2017. In both access requests, data subject asked to provide him with copies of all documents containing personal data relating to him, or to provide him with an overview listing all documents containing his personal data and to allow him to inspect these documents.

By decision of 9 October 2018, controller dismissed both access requests, but granted the Wob-request. After data subject objected to the rejection, and this objection was dismissed, the data subject brought the action before court. In their judgment of 13 February 2020, the District Court considered that an access request pursuant to Article 15 GDPR does not provide a claim to a copy of the document in which personal data are contained, insofar as the purpose of this right can be fully satisfied in another way. Moreover, it held that this provision does not give the data subject the right to receive a copy of the documents which contain his personal data, or the right to inspect these documents.

The data subject appealed to this judgement.

Holding

The Council of State considered that Article 15(3) GDPR is not intended to ensure access to administrative documents. It stated that this this interpretation follows the CJEU’s logic as expressed in paragraph 46 of their judgment of the of 17 July 2014, Y.S. The Council stated that “although this judgment deals with the right of access in Article 12 of the Privacy Directive (95/46/EC), which has been replaced by the GDPR, the purpose of the Privacy Directive corresponds to the purpose of the GDPR, namely to ensure the protection of the applicant's right to privacy with respect to the processing of data relating to him”.

The Council therefore concluded that “the obligation to provide a 'copy of the personal data' pursuant to Article 15(3) GDPR does therefore not mean that an administrative body is obliged to provide a copy of the documents in which those personal data are contained”, although it may decide to do so.

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English Machine Translation of the Decision

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

                                
                            
        



    Body
    Council of State
    Date of judgment
    03-03-2021

    Date of publication
    
03-03-2021

    Case number
    
202020206/1/A3

    
            Formal Relationships
            
First instance: ECLI:NL:RBLIM:2020:1150, (Partial) destruction and self-discontinued
            
    Jurisdictions
    
Administrative law
    
    Special characteristics
    
Appeal
    
    Content indication
    
By decision of 9 October 2018, the Board granted [appellant]'s request dated 10 July 2018 for disclosure of documents on the basis of the Government Information (Public Access) Act and made documents public. In that same decision, the Board rejected requests from [appellant] dated 10 July 2018 and 3 September 2018, based on Article 15 of the General Data Protection Regulation. Until March 2017, [appellant] worked at the municipality of Venlo as an administrative assistant. He worked on a temporary basis through [employment agency]. During this period, [appellant] made several reports of suspected abuses. The Board had one of these reports investigated externally by Ernst & Young (hereinafter: EY). On May 19, 2016 and July 28, 2016, [appellant] received warnings because of statements he made. As of April 1, 2017, the municipality prematurely terminated the hiring of [appellant].

    Locations
    
Rechtspraak.nl
JBP 2021/38
    
        
        
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    202020206/1/A3.
    Judgment date: March 3, 2021
    DEPARTMENT
    ADMINISTRATIVE JURISDICTION
    Decision on the appeal of:
    [appellant], living in [place of residence], municipality of Venlo,
    against the judgment of the Limburg District Court of 13 February 2020 in case no. 19/754 in the proceedings between:
    [appellant]
    and
    the Municipal Executive of Venlo.
    Process sequence
    By decision of 9 October 2018, the Board granted [appellant]'s request dated 10 July 2018 for disclosure of documents under the Government Information (Public Access) Act (hereinafter: Wob) and made documents public. In the same decision, the Board rejected requests from [appellant] dated 10 July 2018 and 3 September 2018, based on Article 15 of the General Data Protection Regulation ((EU) 2016/679, hereinafter: AVG).
    By decision of 29 January 2019, the Board declared the objection lodged by [appellant] unfounded and decided that no penalty should be owed to [appellant].
    By decision of 13 February 2020, the District Court declared the appeal lodged by [appellant] well-founded, annulled that decision in so far as the municipal executive has decided that no penalty payment is owed to [appellant] and determined that the municipal executive owes a penalty of € 427.00. This statement is attached.
    The appellant appealed against this decision.
    [Appellant] has submitted a further document.
    The Division heard the case on September 28, 2020, at which [appellant] appeared, assisted by J. Jansen, attorney at law in Venlo.
    Considerations
    Introduction
    1.       [appellant] worked until March 2017 at the municipality of Venlo as an administrative assistant. He worked on a temporary basis through [employment agency]. During this period, [appellant] made several reports of suspected abuses. The Commission had one of these reports investigated externally by Ernst & Young (hereinafter: EY). On May 19, 2016 and July 28, 2016, [appellant] received warnings because of statements he made. As of April 1, 2017, the municipality prematurely terminated the hiring of [appellant].
    Scope of the requests covered by this ruling
    2.       The requests of 10 July 2018 and 3 September 2018 referred to in this judgment were based on the Wob and Article 15 of the GDPR.
    2.1. In the part of the requests based on the Wob, [appellant] asked the Board to provide him with copies of or to allow access to documents that refer directly or indirectly to reports he has made of a suspicion of a wrongdoing, to the whistleblower procedure following two of these reports, to the two warnings he received and to the termination of his hiring contract as of 1 April 2017. [appellant] has explicitly stated that the request also relates to documents that are with the Commission Integrity. The request relates to the period from 6 July 2015.
    2.2. In the part of the requests based on Article 15 of the GDPR, [appellant] asked the Board to provide him with copies of all documents containing personal data relating to him, or to provide him with an overview containing all documents. stating his personal data and giving him access to these documents.
    2.3. Contrary to what [appellant] argues, the court rightly considered that [appellant] did not request an overview of his personal data processed by the Board.
    The decision of January 29, 2019
    3.       In the decision of 29 January 2019, the Board stated all processed personal data of [applicant] as far as the GDPR requests are concerned. The Board has also explained for what purposes it has processed these personal data and has stated that no other personal data has been processed. The decision states that the personal data referred to have been processed in particular for the handling and answering of requests, notices of objection, appeals, complaints, e-mails and payment requests from [applicant]. In response to the Wob request, the Board made a number of documents public, referred to public documents and to information that the Board had already provided to [appellant]. The Board also took the position that certain information requested by [appellant] has not been included in documents. According to the Commission, this is partly because the Integrity Committee did not meet from 6 July 2015 until the time at which [appellant] submitted his request.
    Judgment court
    4.       The court has considered that the right of access in Article 15 of the GDPR refers to access by a data subject of data about his/her person that are being processed, with the aim of being able to take cognizance of these personal data and to be able to check these personal data for correctness. and its lawful processing. Article 15 of the GDPR does not entitle you to a copy of the document containing personal data, insofar as the purpose of this right can be fully fulfilled in another way. By providing the processed personal data of [appellant] and the explanation thereof, the Board has fulfilled the purpose of Article 15 of the GDPR. [Applicant] cannot therefore derive any right from Article 15 of the GDPR to a copy of the documents containing his personal data, nor is he entitled to inspect those documents or an overview of these documents. The court also considered that the Board has sufficiently investigated whether it has documents in its possession that fall within the scope of the Wob request and that [appellant] has not demonstrated that the Board has withheld documents.
    Appeal
    5.       The Division states first and foremost that with regard to [appellant]'s request for disclosure on the basis of the Wob of documents relating to the two warnings and the termination of the hiring contract, this request is the same as the request that was discussed in the decision of the Division of 1 April 2020, ECLI:NL:RVS:2020:944, so that this has already been irrevocably decided.
    6.       [appellant] argues that the interpretation given by the court to Article 15 of the GDPR is incorrect. According to [appellant], Article 15(3) of the GDPR gives the right to a copy of all documents containing his personal data, or in any case the right to inspect those documents or an overview of all documents. To clarify this argument, [appellant] refers to the judgment of the Division of 20 April 2011, ECLI:NL:RVS:2011:BQ1871, and the judgment of the Court of Justice of 20 December 2017, ECLI:EU:C:2017 :994.
    6.1. Article 15(3) of the GDPR reads: 'The controller shall provide the data subject with a copy of the personal data being processed. If the data subject requests additional copies, the controller may charge a reasonable fee based on the administrative costs. Where the data subject submits his request electronically, and does not request another arrangement, the information shall be provided in a commonly used electronic form.'
    6.2. As the Division has previously considered (ruling of 28 October 2020, ECLI:NL:RVS:2020:2559), it is apparent from the explanation of the GDPR and from other accompanying EU documents to the drafting of the AVG, not what 'copy of personal data' means. ' must be understood. Article 15 of the GDPR belongs to Chapter III of the GDPR, entitled "The rights of the data subject". Recital 11 in the preamble states that effective protection of personal data across the Union requires the strengthening of data subjects' rights. Within those rights of data subjects, according to recital 63 in the preamble, the data subject must have the right to access the personal data collected about him and be able to exercise that right easily and at reasonable intervals. The purpose of Article 15 of the GDPR is that the data subject can inform himself about the processing and check its lawfulness, according to the Division.
    6.3. Article 15(3) of the GDPR is not intended to ensure access to administrative documents. The Division finds support for this conclusion in paragraph 46 of the judgment of the Court of Justice of 17 July 2014, Y.S., ECLI:EU:C:2014:2081. Although this judgment concerns the right of access to Article 12 of the Privacy Directive (95/46/EC), which directive has been replaced by the GDPR, the purpose of the Privacy Directive, as the court has rightly considered, corresponds to the purpose of the GDPR, namely to ensure the protection of the applicant's right to privacy with regard to the processing of data concerning him. [Applicant] can submit a Wob request for access to documents on administrative matters, which he has done.
    The obligation to provide a 'copy of the personal data' under Article 15(3) of the GDPR does not therefore mean that an administrative body is obliged to provide a copy of the documents containing those personal data. An administrative body may do this, but it may also choose another form in which the copy of the personal data is provided, provided that the chosen method of provision meets the purpose of Article 15(3) of the GDPR.
    6.4. The court has rightly considered that by providing the processed personal data of [applicant] and the explanation given thereto, the Board has fulfilled the purpose of Article 15, paragraph 3, of the GDPR, now that [appellant] is aware of this. informed of the processing and has been given the opportunity to check the correctness of the personal data processed with regard to him as well as the lawfulness of such processing. The court rightly considered that in this case the Board was therefore not obliged to provide a copy of the underlying documents, nor to allow inspection of all those documents or to provide an overview of all documents.
    The judgment of the Court of Justice of 20 December 2017 invoked by [appellant] does not provide grounds for a different opinion. It cannot be inferred from that judgment that there is a right to obtain a copy of the documents containing personal data. The same applies to the decision of the Division of 20 April 2011 invoked by [appellant].
    The argument fails.
    7.       [appellant] argues that the court erroneously considered that he had not made it plausible that the Board withheld documents that fall within the scope of the Wob request. According to the [appellant], the court failed to recognize that the Board had conducted too little investigation. [appellant] states that a Cabinet-P document is missing that he saw when he was still working for the municipality of Venlo. It can also be deduced from the file documents that e-mails were exchanged between the municipality of Venlo and EY. The college erroneously did not make these e-mails public. Finally, it appears from the file documents that EY has an investigation archive. He also wrongly did not receive this research archive, according to [appellant].
    7.1. As the Division has previously considered (including in the judgment of 10 February 2016, ECLI:NL:RVS:2016:292), if an administrative body states that after investigation it has become apparent that a certain document is not or no longer under its control and such a statement does not appear credible, in principle to the person requesting information to demonstrate that, contrary to the results of the investigation by the administrative authority, that document is nevertheless held by the administrative authority.
    7.2. [appellant] acknowledges that the research archive, which he believes is missing, does not belong to the Board. There is no basis for the opinion that this investigation archive, which relates to the independent investigation conducted by EY, should have been held by the Commission. This means that the Board cannot be obliged under the Wob to make the research archive public.
    7.3. It is not sufficiently clear from the file documents which investigation the Commission has conducted to find out whether the so-called Cabinet-P document and the e-mails exchanged between the municipality of Venlo and EY exist and are in the possession of the Commission. The Commission has also not submitted a written explanation in which it has clarified this. The Division was unable to question the Board about this at the hearing. Under these circumstances, it must be assumed that the Commission has conducted insufficient investigations.
    The argument succeeds.
    Conclusion
    8.       The appeal is well founded. It is not necessary to discuss what further [appellant] has argued. The appealed decision must be annulled, insofar as the District Court has failed to annul the decision of January 29, 2019, insofar as the Board has declared the objection made by [appellant] unfounded against the decision of October 9, 2018, insofar as this is stated in the Wob. request has been decided. Doing what the court should do, the Division will annul this part of the decision of January 29, 2019, because it is contrary to Articles 3:2 and 7:12 of the General Administrative Law Act (hereinafter: Awb).
    This means that the Board must again decide on the objection made by [appellant]. The municipal executive must investigate whether the Cabinet-P document and the e-mails between the municipality of Venlo and EY exist and are in their possession. If this is the case, it must assess whether these documents fall within the scope of the Wob request and, if so, whether these documents must be made public.
    Pursuant to Article 7:10(1) of the Awb, the Board must announce the new decision within six weeks. The Division will not attach a penalty payment to compliance with this term. The Department assumes that the Board will adhere to that term. However, with a view to an efficient settlement of the dispute, the Division sees reason to determine, pursuant to Article 8:113, second paragraph, of the Awb that an appeal against the new decision can only be lodged with it.
    9.       The Board must be ordered to reimburse the costs of the proceedings in a manner to be stated below.
    Decision
    The Administrative Jurisdiction Division of the Council of State:
    I.        declares the appeal well founded;
    II. annuls the decision of the District Court of Limburg of 13 February 2020 in case no. 19/754, insofar as the District Court has failed to annul the decision of 29 January 2019, insofar as the Board contains the objection made by [appellant] against the decision. October 2018 as unfounded;
    III. annuls the decision of the Municipal Executive of Venlo of 29 January 2019, reference 1402107, insofar as the Municipal Executive has declared the objection made by [appellant] against the decision of 9 October 2018 unfounded;
    IV. determines that the new decision to be taken may only be appealed to the Division;
    V.      orders the Municipal Executive of Venlo to reimburse legal costs incurred by [appellant] in connection with the handling of the appeal to an amount of €1,123.92 (in words: eleven hundred and twenty-three euros and ninety-two cents), of which €1,068 .00 is attributable to legal assistance provided professionally by a third party and of which € 55.92 is attributable to the travel expenses incurred by [appellant];
    VI. ordered that the Municipal Executive of Venlo reimburse [appellant] the court fee paid by him in the amount of € 265.00 (in words: two hundred and sixty-five euros) for the handling of the appeal.
    Adopted by mr. J.A.W. Scholten-Hinloopen, chairman, and mr. J.J. van Eck and mr. B. Meijer, members, in the presence of mr. E.R. Fernandez, clerk.
    The chairman is unable to sign the decision.
    The clerk is unable to sign the decision.
    Pronounced in public on March 3, 2021
    753.