RvS - 202006960/1/A3

RvS - 202006960/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 12(6) GDPR artikel 3:13 BW artikel 3:15 BW
Decided:	24.08.2022
Published:	24.08.2022
Parties:
National Case Number/Name:	202006960/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2022:2403
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	RvS (in Dutch)
Initial Contributor:	Jette

The Dutch Council of State held that a data subject abused his procedural rights, as he randomly submitted access requests at different municipalities, ignored any communication from them and directly lodged appeals against them for not complying with his request in a timely manner.

English Summary

Facts

The data subject submitted an access request with the municipality of Westerveld (controller). The controller responded that a name and postal address were insufficient to verify his identity and it needed additional information from the data subject. The data subject then wrote the controller that it would file an appeal against the controller for not responding to his request in good time if it did not respond soon. The controller responded that it already did, and re-sent its previous letter. The data subject therefore submitted an appeal with the court for not responding in good time.

The Court considered that by not identifying himself, the data subject was partly responsible for the fact that no decision was made. It noted that the data subject did not argue that the controller's request for additional information was unlawful. The Court held that the data subject's appeal constituted an abuse of procedural rights and deemed the appeal non-admissible.

The data subject appealed the court's decision at the Council of State. The Council of State heard the case together with three similar appeals from the data subject, namely 202004183/1/A3, 202006929/1/A3 and 202006950/1/A3 (see comments). Both parties were present at the hearing.

During the hearing, the data subject argued that he had not abused his procedural rights. Contrary to the court's consideration, he did argue that the controller's request for additional information was unlawful. The data subject stated that the fact that he did not respond to the controller's unlawful request did not make his appeal an abuse of his procedural rights.

Holding

The Council stated that abuse of procedural rights is only present if a right or power was used so blatantly without reasonable purpose or for a purpose different from that for which they were granted, that the use of those rights or powers shows bad faith. A more or less excessive reliance on government offered facilities does not in itself constitute an abuse of rights. However, the frequency with which a given right or power is used combined with other circumstances, may contribute to the conclusion that an abuse of rights has taken place. In this regard, the Council noted that the data subject lodged thirteen appeals for requests submitted to different municipalities.

The Council noted that the controller rightfully considered a name and PO box insufficient to establish his identity. The controller was therefore entitled to ask the data subject for further information pursuant to Article 12(6) GDPR. The data subject did not disputed this either. The Council followed that the data subject did not respond to invitations from any of the municipalities to make contact. Nor did he choose to wait for the decisions on his requests. He immediately loged appeals after his notices of default, followed by requests for periodic penalty payments.

Considering the data subject's procedural conduct, the Council believed that the data subject was only out to collect penalty payments. The Council also took into account that at the data subject only expressed concerns about the question whether the periodic penalty payments awarded would be paid at the hearing, but not about whether he would still receive his personal data.

Therefore, the Council held that in the present case there were compelling grounds to establish that the data subject abused his right to appeal against the failure to decide in due time on his requests, as referred to in article 3:13 and read in conjunction with article 3:15 of the Civil Code. The appeal at the Council is unfounded and the Court's judgement should be upheld.

Comment

Before the appeal at the court, the controller dismissed the request because the data subject neglected to provide additional information to identify himself. However the controller did not make the decision available to the court in time so it was not included in the assessment of the case. The Council of State did include the controller's decision.

The Council considered that a request by an administrative body (the controller) to supplement a request must be made before the end of the decision period. Otherwise the administrative body could not disregard the application pursuant to Article 4:5(1) Awb. Therefore the controller should have taken a substantive decision on the request. The Council annulled the controller's decision and decided the case itself. As the data subject refused to identify himself, the Council held that it was impossible to comply with his request. The Council therefore rejected the data subject's request and ruled that its judgement shall replace the annulled decision.

The other three decisions have also been published on the website of the Council of State with case numbers 202004183/1 (Haarlem), 202006929/1 (Appingedam) and 202006950/1 (Vlieland).

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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.

202006960/1/A3. Judgment date: August 24, 2022

DIVISION OF ADMINISTRATIVE JURISDICTION

Decision on the appeal of:

[appellant], living in [place of residence],

against the judgment of the District Court of the Northern Netherlands of 16 November 2020 in case no. 20/2445 in the proceedings between:

[appellant]

and

the council of mayor and aldermen of Westerveld.

Process sequence

In a letter dated 29 April 2020, [appellant] requested the municipal executive to inform him whether the municipality processes his personal data and, if so, to allow him to inspect it.

By letter dated August 7, 2020, [appellant] filed an appeal against the Board's failure to take a decision on his request in time.

By decision of September 17, 2020, the Board withdrew the request.

By decision of November 16, 2020, the court declared the appeal of [appellant] inadmissible. This statement is attached.

The appellant appealed against this decision.

The college has issued a written statement.

The Division summoned [appellant] to appear at the hearing pursuant to Section 8:59 of the General Administrative Law Act (hereinafter: Awb).

[Appellant] has submitted a further document.

A single chamber of the Division dealt with the case at the hearing on September 8, 2021, at which [appellant] and the Board, represented by mr. S. Kensenhuis and E. Vens, appeared. The case was heard at the same time as cases 202004183/1/A3, 202006929/1/A3 and 202006950/1/A3.

After closing the investigation at the hearing, the single chamber reopened the investigation in the case and referred the case to a multiple chamber of the Division.

[Appellant] and the Board have waived the possibility of a second hearing. The investigation was then closed again.

Considerations

Introduction

1.       [appellant] submitted the following request to the Board: "I request you to clarify whether personal data concerning me are being processed at your organization and, if that is the case, to obtain access to those personal data (by means of the providing a copy of the data) and other information."

The College has regarded the request as a request for access under Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (the General Data Protection Regulation; hereinafter: GDPR).

In letters dated 5 May 2020 and 6 May 2020, the Board informed [appellant] that it cannot conduct an investigation on the basis of the personal data provided, consisting only of his name and a postal address. The Board has requested [appellant] to complete an application form and hand it in in person so that his identity can be checked. According to the commission, identification is necessary because it can only provide data to the person whose data has been requested.

In a letter dated 16 June 2020, [appellant] wrote the following to the Board: "With this letter, I request you to make a decision on my letter of 29 April 2020. Since I am of the opinion that a decision was not made in time, I request that you to work diligently in this regard.”

In a letter dated 6 August 2020, the Board informed [appellant] that it had already responded to his request earlier and sent the relevant letter again.

[Buyer] subsequently lodged an appeal with the court against the failure to take a decision in time on his request about the processing of his personal data.

Attacked verdict

2.       The court declared the appeal inadmissible. To that end, it considered that the Commission should have set a term for supplementing the application pursuant to Article 4:5 of the Awb, but that it did not do so. According to the court, the failure to set a time limit was not to the detriment of [appellant]. This gave him more time to identify himself. The appellant has not argued that the Board should not have asked for identification. By failing to identify himself, [appellant] is one of the reasons why a decision has not been taken on his application. In the opinion of the court, filing an appeal against the failure to decide on the application in time constitutes an abuse of procedural law.

Appeal

Call not fulfilled?

3.       At the hearing, the Board disputed that the person who appeared at the hearing is actually [appellant]. For that reason, the person [appellant] did not heed the summons to appear in person at the hearing.

3.1. In a letter dated 14 July 2021, the Division summoned [appellant] to appear at the hearing in person or by proxy under Article 8:59 of the Awb. The letter states that he is obliged to comply with the summons and, in the event that he does not comply, that the Division can draw the conclusions it sees fit from it. There is no identification requirement for appearing at a hearing of the Division, not even if someone has been summoned to do so. Prior to the hearing, [appellant] reported to the reception desk and stated that he was [appellant]. The Board has not put forward any circumstances why the identity of the [appellant] who appeared at the hearing should be doubted. Under these circumstances, the Division sees no reason to rule that [appellant] did not heed the summons.

The argument fails.

Litigation interest

4.       The Board disputes the interest of [appellant] in the appeal, because a decision has been taken on his request for inspection.

4.1. [Appellant] states that with these proceedings he still wishes to obtain the personal data concerning him and periodic penalty payments due to failure to make a timely decision. With this procedure, he can still obtain it. The Division therefore finds that [appellant] has an interest in a substantive assessment of his appeal.

The argument fails.

Abuse of law?

5.       The question at issue is whether the District Court was right to declare [appellant]'s appeal inadmissible because of abuse of procedural law.

5.1. [Appellant] argues that the court erred in concluding that he abused procedural law. Contrary to what the court has considered, he has indeed argued that the request of the Board to supplement information was unlawful. Failure to respond to an unlawful request cannot lead to the conclusion that he has abused (procedural) law by lodging an appeal. According to [appellant], he was therefore entitled to lodge an appeal for failure to make a decision on time, after receipt of the notice of default, after the decision on the request had not been made.

5.2. As the Division ruled in the decision of 19 November 2014, ECLI:NL:RVS:2014:4135, pursuant to Article 13, read in conjunction with Article 15, of Book 3 of the Dutch Civil Code (hereinafter: Dutch Civil Code) the power to appeal to the administrative court may not be invoked in so far as this power is abused. These articles oppose the substantive handling of an appeal brought before an administrative court that involves abuse of rights and provide a legal basis for declaring such an appeal inadmissible. To this end, weighty grounds are required, which are present, among other things, if rights or powers are so evidently used without a reasonable purpose or for a purpose other than that for which they were given, that the use of those rights or powers shows bad faith.

5.3. As follows from the judgment of the Division of 27 January 2016, ECLI:NL:RVS:2016:157, a more or less excessive use of facilities provided by the government does not in itself in itself constitute an abuse of rights. After all, every recourse to these facilities entails costs for the government and to that extent disadvantages the government. However, the number of times that a certain right or power is used, in combination with other circumstances, can contribute to the conclusion that abuse of rights has taken place.

5.4. It is established that [appellant] submitted the request referred to under 1 to various municipalities. For example, the present case was dealt with at a hearing at which the GDPR requests that he submitted to the municipalities of Haarlem, Appingedam (now: Eemsdelta) and Vlieland were also discussed. [Appellant] says he does not know how many requests he has made in total across the country, but he thinks there are between ten and twenty. When asked, [appellant] explained at the hearing that he did not select the municipalities for specific reasons. He said he "if not know" whether he lived or worked in the municipalities that were contacted. He made the selection at random. At the hearing, the Division announced that up to that point, [appellant] had submitted AVG requests to at least thirteen different municipalities, about which he had lodged appeals with the Division. The Division is officially aware that more requests have been made than the number stated by [appellant]. The Division therefore does not consider this case in isolation.

5.5. The court rightly considered it important that [appellant] did not respond to the requests of the boards to identify himself. On appeal, he put forward as a formal argument that the request for identification was unlawful because the letter of 6 May 2020 did not set a period within which the identification had to be made. Whether or not a time limit has been set incorrectly is only relevant if the Board decides not to process the application. The colleges only had a name and a PO box address of [appellant]. They were allowed to deem this insufficient to establish his identity. They therefore had reasons to doubt the identity of [appellant]. They were therefore allowed to ask [applicant] on the basis of Article 12, sixth paragraph, of the GDPR for further information in order to identify themselves (compare the decision of the Division of 9 December 2020, ECLI:NL:RVS:2020:2927). The appellant has not disputed this either. He has not responded to invitations from the colleges to make contact. He also did not choose to await decisions on his requests, but to the surprise of the colleges, after his formal notices, he immediately instituted legal remedies, followed by requests for periodic penalty payments. In view of the procedural conduct of [appellant], the Division has been strengthened in its belief that when lodging appeals against the failure to take timely decisions on his requests for inspection, it is only for him to collect periodic penalty payments. The Division takes into account that at the hearing it only expressed its concerns about the question of whether the penalty payments that had been awarded would actually be paid, but not whether he would still be provided with his personal data.

5.6. In view of the foregoing, all viewed in conjunction, the Division is of the opinion that there are serious grounds as referred to in 5.2 in this case. [appellant] has misused his power to appeal because of a failure to make a timely decision on his requests, followed by requests for periodic penalty payments, as referred to in Section 3:13, read in conjunction with Section 3:15 of the Dutch Civil Code.

5.7. The court rightly dismissed the appeal of the [appellant] because of abuse of procedural law. [Appellant's] argument fails.

This also means that the court was not required to determine the penalty payment requested by [appellant] as referred to in Article 8:55c of the Awb.

Conclusion on appeal

6.       The appeal is unfounded. The attacked decision needs to be confirmed.

Further decision

7.       By decision of September 17, 2020, the Board still decided on [appellant's] request and set the application aside. The reason for this is that, according to the Board, [appellant] did not use the opportunity to have his identity established and to supplement his personal data. The Board did not immediately make the decision available to the court, so the court did not include this decision in its assessment. In the written explanation of March 4, 2021, the Board submitted the decision of September 17, 2020 to the Division. The Division will refer to the decision on the basis of Article 6:20, read in conjunction with Article 6:24, of the Awb.

An appeal has arisen by operation of law.

8.       [appellant] argues against the decision of 17 September 2020 that the Board should not have disregarded his request, but should have taken a substantive decision. After the expiry of the decision period, the Board was no longer authorized to disallow the request. According to him, the Board also forfeited a penalty for failing to make a decision in time.

8.1. The Division considers that a request from an administrative body for a supplement to an application must be made before the decision period has expired. If the administrative authority does not request a supplement until after this period has expired, it is no longer authorized to disallow the application pursuant to Article 4:5(1) of the Awb (see the decision of the Central Appeals Board of 28 May 2019, ECLI:NL:CRVB:2019:1885). [Appellant] rightly argues that in this case a substantive decision on the application was required.

The argument succeeds.

9.       The appeal is well founded. The decision of 17 September 2020 must be quashed. The Division sees reason to take care of the case itself. Since [appellant] has not wished to identify himself, it is not possible to grant his request and to inform him whether his personal data are being processed and to give him access to it. The Department will reject the application. It will also determine that this ruling replaces the annulled decision.

Process costs

10.     The Board does not have to reimburse legal costs.

Decision

The Administrative Jurisdiction Division of the Council of State:

I.        confirms the attacked statement;

II. declares the appeal against the decision of the Municipal Executive of Westerveld dated 17 September 2020, reference 273262, well-founded;

III. annuls the decision of 17 September 2020;

IV. rejects [appellant]'s request to inform him whether the municipality processes his personal data and, if so, to allow him to inspect it;

V.       determines that this ruling will replace the annulled decision.

Adopted by mr. E.J. Daalder, chairman, and mr. C.C.W. Lange and Mr. C.H. Sieburgh, members, in the presence of Mr. L.E.E. King, clerk.

w.g. Daalder chairman

The Registrar is prevented from signing the judgment

Pronounced in public on August 24, 2022

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