VG Berlin - VG 3L 1028.19

VG Berlin - 3L 1028.19
Court:	VG Berlin (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17(1)(a) GDPR Article 17(1)(d) GDPR
Decided:	28.02.2020
Published:
Parties:	Anonymous
National Case Number/Name:	3L 1028.19
European Case Law Identifier:	ECLI:DE:VGBE:2020:0228.3L1028.19.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Berlin-Brandenburg Court Decisions (in German)
Initial Contributor:	n/a

The Berlin Administrative Court denied the request of a student to delete his old school record after changing school. The school regulation in Berlin justifies the storage of the school record. The court did not see a loss of purpose according to Article 17(1)(a) GDPR.

English Summary

Facts

The plaintiff visited a school in Berlin where a record with notes from teachers about his behavior was created. The school record contains his insulting statements to classmates and teachers and notes because of disrupted teaching. The student changes the school recently.

Dispute

Were the requirements of Article 17 GDPR fulfilled and would the defendant require to delete the school record?

Holding

Article 17 (1) (a) GDPR grants a right to delete personal data, if the purpose for which the personal data was collected no longer exists and further storage is no longer necessary. The court did not see such a loss of purpose in this case. The VG held the applicable school regulation against the student and his parents. It stipulates that a change of school does not justify a loss of purpose. According to the school regulation the processing of personal data relating to pupils and legal guardians is necessary for the school to perform its tasks. This applies in particular to students' breaches of duty in order to be able to take the appropriate pedagogical measures and compare them with their effects in the past. The concerned school record shall be kept during the mandatory school period according to the school regulation. Since the student is still obliged to go to school, it can be assumed that the documents collected will continue to serve their purpose.

Furthermore, the applicants have not made it credible that the personal data within the meaning of Article 17 (1) (d) GDPR were processed illegally.

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English Machine Translation of the Decision

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

DECISION
tenor 
The applications for interim relief are rejected. 
The applicants are ordered to pay the costs. 
The value of the subject of the proceedings is set at EUR 2,500. 
reasons 
I. 
1 
Applicants to 1) and 3) are parents of thirteen-year-old E ..., the applicant to 2). They desire the "cleanup" of his student file. 
2nd 
The applicant for 2) attended the S ... Gymnasium in Berlin -... from the 2018/2019 school year. After issuing a written reference and ordering the provisional exclusion from teaching after an incident of violence, the applicant to 2) no longer participated in the class there from November 2018 and did not pass the probationary year. From the school year 2019/2020, he attended the eighth grade of the W ... in Berlin-S ... (hereinafter: school). As a result, as shown in the student file, there were numerous discussions and an extensive correspondence between the applicants and the school and with other bodies, such as the Senate Department for Education, Youth and Family (hereinafter: School Supervision), as well as convening a school aid conference and the decree an oral blame. In the student file there are also notes from teachers about the behavior of applicant 2), among other things because of insulting statements to classmates and teachers and because of disruption to teaching. 
3rd 
On December 4, 2019, applicants 1) and 3) applied to the school to “remove all discriminatory entries about us parents and our son” from the student file. 
4th 
On December 23, 2019, the applicants requested an injunction. The pupil questionnaire part III contains evaluative and discriminatory statements about the family. The file was obviously created retrospectively for submission to the court. It was not properly managed, especially not in chronological order. Pages were missing, existed multiple times or were wrongly labeled as "double" or partially unpaginated in between. The origin and authorship of various documents, including handwritten records on the behavior of applicant 2), are partially unclear. The minutes of the class conference of October 10, 2018 and the school aid conference of December 12, 2019 were not dated or signed and therefore "invalid". At least one page is missing from each of the two opposition notices dated September 10, 2019. Such a formally incorrect student file could not fulfill the task assigned to it; rather, a tendentious picture emerges of a difficult student and difficult parents. Since the file was "hopelessly spoiled", a new file had to be created in which only the absolutely necessary documents were to be included, and repackaging had to be carried out so that the cleanup would not become apparent. Only the correspondence between the school and the parents, which is relevant for the school relationship, should be included. The correspondence with and between third parties is not recorded, since the corresponding data may only be saved and processed by the respective authorities. Various letters written by the parents had to be removed, since they showed the difficult relationship with the school, but they were not relevant to the school relationship of the applicant to 2). Since the relationship to the school was irreparably broken, a new school was currently being sought, whereby the student file represented a considerable obstacle and prevented an unencumbered restart. Applicant 2) is now attending a private school. However, there is a significant risk that the new school will not sign the school contract if it receives the file in its current version. 
5 
Applicants request 
6 
Order the defendant by way of an interim order to recreate for the applicant 2) the third part of the student file (student sheet and correspondence) relating to the S ... gymnasium and the W ... school and only the following, in the current student file with the page numbers 1, 3, 6, 9, 10, 11, 12, 14, 15, 45, 46, 63, 70, 72, 74 paginated pages without adding the pagination now on it in chronological order, furthermore also enclose the complete notice of objection dated September 10, 2019 against the written reference and against the suspension in chronological order and repaginate this file, 
7 
alternatively, 
Order the defendant, by means of an interim order, to remove the following pages from the third part of the applicant's student file 2), which concerns the S ... Gymnasium and the W ... Schule, available to the court: 2, 4, 5, 7, 8, 13, 16-30, 32-44, 47-62, 64-69, 71, 73, 75-112, as well as the unpaginated pages between pages 83-84, 106-107, 108-109, 109 -110. 
8th 
The respondent requests that 
9 
to reject the applications. 
10th 
He argues that the student file was not subsequently created for submission to the court or was manipulated in any other way. The student form only contains the intended content, especially since it consists to a large extent of correspondence written by the applicants themselves. The fact that the file may not have been kept with the utmost care, for example, the chronology was not always maintained, or documents were duplicated or only available in duplicate, did not mean that the relevant sheets had to be removed. The correspondence with the legal guardians and with the school supervision as well as medical statements are to be kept completely, since they concern the school development of the pupil. There is a willingness to remove the handwritten note in the file with a urinating rhino. Apparently, the admission to the private school was made even without knowledge of the content of the student file. In principle, student files would only be sent to the new school after admission. 
II. 
11 
The applications are unsuccessful. 
12th 
Most of them are permissible. In particular, the jointly custodial applicants 1) and 3) can assert their parents' rights in their own name as well as the rights of their minor son, the applicant to 2), in accordance with sections 1626 (1), 1629 (1) sentence 1 and sentence 2 ms. 1 BGB as its legal representative. 
13 
To the extent permitted, the applications are unfounded. 
14 
Pursuant to section 123 (1) sentence 2 of the VwGO, the court can issue an interim order to regulate a provisional situation in relation to a legal relationship at issue if this regulation appears to avert essential disadvantages or for other reasons. Pursuant to Section 123 (3) VwGO in conjunction with Section 920 (2) of the ZPO, the actual requirements of the claim asserted (claim for an order) and the reasons for the urgent need for the judicial decision (reason for the order) must be demonstrated. If the applicants - as here - request the anticipation of the main decision, the issuing of an interim order presupposes that otherwise severe and unreasonable disadvantages threaten, which cannot be eliminated by the decision in the main, and that the applicants with their request in one The main proceedings will most likely be successful (cf. Oberverwaltungsgericht Berlin-Brandenburg, decision of August 11, 2006 - OVG 8 S 50.06 -, juris marginal no. 16 mwN). 
15 
Based on these principles, the applicants have not made a claim to an order credible to an extent justifying the anticipation of the main matter. You are probably not entitled to a provisional "cleanup" and reorganization of the student file. 
16 
The legal basis for the coveted right to rectification is provided solely by Article 17 (1) (a) or (d) of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons when processing personal data, on the free movement of data and the repeal of Directive 95/46 / EC (General Data Protection Regulation - GDPR -) (OJ L 119 p. 1). 
17th 
The material scope of application of the GDPR according to Art. 2 Para. 1 GDPR is open. Thereafter, the regulation applies to the fully or partially automated processing of personal data as well as to the non-automated processing of personal data that are stored or are to be stored in a file system. The student file contains personal data within the meaning of Art. 4 No. 1 GDPR. These relate in particular to applicants to 2), but also to applicants to 1) and 3) and thus to identified natural persons. This data is not processed automatically, in any case it is collected, stored and adapted (see the definition in Art. 4 No. 2 GDPR). A file only in paper form represents a file system, namely a structured collection of personal data that is accessible according to certain criteria (Art. 4 No. 6 GDPR, see the personnel file of the State Labor Court of Saxony-Anhalt, judgment of November 23, 2018 - LAG 5 Sa 7/17 -, juris Rn. 63 f.). 
18th 
The keeping of the student file also falls within the scope of Union law within the meaning of Article 2 (1) (a) GDPR. This provision only excludes from the scope of the GDPR those activities that do not fall within the competence of the Union, regardless of whether they serve to implement Union law (see Zerdick, in: Ehmann / Selmayr, General Data Protection Regulation, 2nd edition 2018, Art. 2 marginal 5). However, the European Union has at least one support, coordination or supplementary function in the area of education in accordance with Article 6 (e) of the Treaty on the Functioning of the European Union (see also Articles 165 (4) and 166 (4)) TFEU in conjunction with Art. 288 (5) TFEU and the competence to issue legal acts in this area in the form of recommendations). 
19th 
According to Art. 17 Para. 1 lit. a) and d) GDPR, the data subject has the right to request the data controller to delete personal data concerning them immediately, and the data controller is obliged to delete personal data immediately, provided that One of the following reasons applies: The personal data are no longer necessary for the purposes for which they were collected or otherwise processed (letter a)) or the personal data were processed unlawfully (letter d)). 
20th 
It can be based on whether a right to erasure already arises from the exception rule in Art. 17 para. 3 b) old. 2 or 3 GDPR fails, according to which the claim does not exist if the data processing is carried out to perform a task that is in the public interest or in the exercise of official authority that has been transferred to the person responsible. 
21 
In any case, the applicants have not made it credible that the material requirements of the basis for the claim are met. 
22 
Applicants to 1) to 3) are data subjects within the meaning of Art. 4 No. 1 GDPR and the school is responsible within the meaning of Art. 4 No. 7 GDPR, namely an authority, institution or other body that alone or decides together with others about the purposes and means of processing personal data. 
23 
However, a deletion is not apparent. 
24th 
The applicants did not initially show that the personal data were no longer necessary for the purposes for which they were collected or otherwise processed (Art. 17 (1) (a) GDPR). This presupposes that a certain data collection or processing was originally lawful, but the legality requirements due to the achievement of the purpose no longer existed (cf. Kamann / Braun, in: Ehmann / Selmayr, General Data Protection Regulation, 2nd edition 2018, Art. 17 para. 20 f.). 
25th 
When this is to be assumed in the case of the student file is regulated in detail on the basis of Section 66 of the School Act for the State of Berlin of January 26, 2004 (GVBl. P. 26) - SchulG -, last changed on April 9, 2019 (GVBl. P. 255) Ordinance on the Processing of Personal Data in Schools of October 13, 1994 (GVBl. P. 435) - SchuldatenV -, last changed on September 15, 2010 (GVBl. P. 446). The SchuldatenV shows that changing schools does not justify a loss of purpose. Thus, in accordance with section 10 (3) sentence 1 SchuldatenV, in the event of a change to another general education school (including recognized private schools, see section 10 (5) SchuldatenV), the (complete) student form will be sent to the new school. This is the only way that the student file can fulfill its purpose of making it possible to understand the development of the student's personality and behavior across his school career, as well as the cooperation with legal guardians over a longer period of time. The student form is also kept in accordance with § 11 Paragraph 1 Clause 1 No. 1 SchuldatenV in any case until the end of the compulsory schooling. Only after this period, which is based on the principle of data requirement, is the student file to be destroyed (see Krzyweck / Duveneck, The School Law in Berlin, introduction of the School Data Regulation, as of July 2016, paragraph 15). Before this, it can be assumed that the documents collected there will continue to serve their purpose of documenting the school development of the student and the cooperation between school and home. According to Section 11, Paragraph 2, Sentence 2 of the School Data Regulation, documents relating to the regulatory measures taken are generally no longer required after three school years have passed if no further regulatory measures have been taken afterwards. However, these requirements are not met here, since no three school years have passed since the written reference and the suspension by the S ... Gymnasium on October 11, 2018. 
26 
Furthermore, the applicants have not made it credible that the personal data within the meaning of Article 17 (1) (d) GDPR was processed illegally. In any case, data processing is unlawful if there is neither the consent of the data subject nor any other legal basis for the processing (see Art. 6 Para. 1 GDPR). This legal basis can also come from national law. Insofar as the processing of personal data concerned is essential for the realization of the right to informational self-determination under Article 2 (1) in conjunction with Article 1 (1) GG, it must be based on a parliamentary law in German law (cf. Herbst, in : Kühling / Buchner, GDPR BDSG, 2nd edition 2018, Art. 5 GDPR marginal 8). Even if the data is “only” incorrect, the requirements of Article 17 (1) (d) GDPR can be met, since the processing of incorrect data is not regularly covered by the relevant legal basis (see Art. 17 GDPR marg . 29). It can be based on whether a broad understanding of the "illegality" is also indicated in such a way that a violation of other requirements and obligations arising from the GDPR or national law is sufficient (so Kamann / Braun, in: Ehmann / Selmayr, General Data Protection Regulation, 2nd ed. 2018 Art. 17 para. 27 with reference to the ECJ, judgment of May 13, 2014– C-131/12, Google Spain and Google -, juris para. 71– 72, 75, 92). 
27 
Because the data processing carried out in the student file was lawful both with a narrow and with a broad understanding. It finds its legal basis in section 64 (1) sentence 1 of the School Act. According to this, schools may process personal data of pupils and their legal guardians, insofar as this is necessary to fulfill the school-related tasks assigned to them by law. The school-internal documentation of the school and personal development of the respective pupil as well as the cooperation between school and parental home serves to realize the school's educational mandate. The relevant educational goals include, for example, the development of active social action (see Section 3 (2) No. 1 School Act) and non-violent conflict resolution (see Section 3 (2) No. 6 School Act). The school and the legal guardians should work closely together (see Section 4 (1) of the School Act). As far as the storage of personal data of students about breaches of duty and their pedagogical and legal consequences is concerned, the storage is necessary for the fulfillment of tasks of the school, since the selection of a future educational measure always depends on the assessment of the behavior of the student in comparable past Situations is dependent (cf. VG Hannover, judgment of July 8, 2004 - 6 A 386/04 -, juris Rn. 22 ff.). The processing of personal data at school is detailed in the SchuldatenV, which was enacted on the basis of Section 66 of the School Act, the requirements of which are met here. 
28 
Pursuant to Section 2 (1) SchuldatenV, the student form should contribute to a better understanding of the student's personality and at the same time serve as a basis for cooperation between the school and the home. The regulation of § 2 Para. 2 No. 14 SchuldatenV stipulates that the student form contains notes on contacts with the legal guardians and institutions that look after the student. Pursuant to Section 2 Paragraph 4 Clauses 1 and 2 SchuldatenV, the student file also collects "documents created about the student at school", in particular about transcripts of certificates, documents about the behavior of the student including any educational and regulatory measures as well as the correspondence relating to the student . These documents can be found in student form part III of applicant 2). 
29 
The opinion of the headmistress currently attached to the beginning of the file remains with the respondent's assurance only in the file for the duration of the judicial proceedings. Certificates (sheets 1 and 2 of the student sheet part III) are part of the student sheet in accordance with section 2 (4) sentence 1 SchuldatenV. Even if the certificate from February 1, 2019 was corrected to the objection of the applicants to 1) and 3) (p. 42/43 of the student form part III) in such a way that the work and social behavior was not assessed, the certificate can be used as The purpose of the complete description of the facts remains in the file, especially since the actual assessment of work and social behavior has apparently been removed from the file and only the reference to the fact that an assessment has been made is still in the certificate. 
30th 
The correspondence between the legal guardians and the school can remain completely in the student file. Contrary to what the applicants believe, there is no limit to the regulation in Section 4 (4) sentence 2 of the SchuldatenV to the effect that only the correspondence relating to fundamental questions relating to the school relationship should be kept. Rather, it follows from the sense and purpose of the student's file, in addition to documenting the development of the student, to document the collaboration between the school and parents' home over school (see § 2 Paragraph 1 Sentence 1 School Data Regulation) that the complete correspondence is part of the student's file . This affects sheets 4, 7-11.15, 41-43, 47-50, 56-60, 62, 67-72, 74-75, 77-78, 85, 90, 97, 99, 101-102, 105 of the student form Part III. 
31 
In addition, the regulation of Section 2 Paragraph 4 Sentence 2 SchülerV, according to which the “correspondence concerning the pupil” is collected in the pupil questionnaire, covers all correspondence about the pupil, including correspondence with third parties (see also Krzyweck / Duveneck, Das Schulrecht in Berlin, introduction of SchuldatenVO margin no.3). This also includes the correspondence conducted by applicants 1) and 3) regarding applicant 2) and the correspondence between the school and the school supervisory authority (pp. 16-19, 21, 23-24, 27, 29-32, 34-39, 41, 73, 76, 79-83, 98, 100 of the student form Part III), the district office S ... of Berlin 
- Jugendamt - (Bl. 20, 92/95, 103-104 of Schülerbogens III), the district office S ... of Berlin - Gesundheitsamt - (Bl. 22, 25, 84, 86, 112 of Schülerbogens Part III), the Police chiefs of Berlin (pp. 64-65 of the student sheet part III), the school psychological and inclusion pedagogical counseling and support center - SIBUZ - (sheets 91 and 94 of the student sheet part III) and the child and adolescent psychiatric service (sheets 93 and 96 of the student form part III) and between youth. or the Health Department and School Supervision (pages 26, 28, 33, 40 of the student form Part III). The letters each relate to the applicant's 2) school affairs and there are no reasons why they should not be included. 
32 
Documents relating to the behavior of the student, including educational and regulatory measures and the correspondence associated with them, are also part of the student file in accordance with Section 2 (4) sentence 1 SchuldatenV. This includes the minutes of the class conference of October 10, 2018 and the subsequent written reference of October 11, 2018 and the orderly measures taken to suspend and implement a parallel class of November 23, 2018 and the correspondence associated with it and the contradictions raised and notices of objection (pages 5-15, 51-54 of the student form part III). It is not evident that one of the pages of the two opposition notices paginated from page 1 to 4 is missing, as the applicants claim. Among the documents on educational measures to be collected in the student file is the blame of September 30, 2019 and the “objection” raised against it, as well as the official complaint (supervisory board complaint) (pp. 63 and 66, 67-71 of the student form part III). The handwritten notes on the behavior of the applicant to 2) on August 29 and 30, 2019 (p. 55 of the student form part III) are also a document on the behavior of the student in this sense. With his signature, the class teacher Mr. B ... assumed responsibility for the content of these records. The same applies to the compilation arranged by the class teacher from August 29, 2019 to November 27, 2019 (pages 106-107 of the student form Part III) and to the e-mail from the biology teacher Ms. S ... regarding the applicant's behavior 2) on December 12, 2019 (sheet 110 of the student sheet part III) and the opinion of the school social worker Ms. Z ... on the behavior of the applicant to 2) at school on December 13, 2019 (sheet 111 of the student sheet part III) . 
33 
The headmaster's opinion on the official complaint against the school social worker Ms. Z ... (sheet 87 of the student sheet part III) and the minutes of the school aid conference of December 12, 2019 (sheet 108-109 of the student sheet part III) fall under the generic term of "Documents created about the student" in the sense of Section 2 (4) sentence 1 SchuldatenV. From the wording "in particular" it follows that the subsequent list of possible documents to be included in the student file is not exhaustive. 
34 
With regard to the handwritten note of classmates, including the drawing of a urinating rhinoceros (p. 61 of the student form part III), the respondent has undertaken to remove them. The urgent request related to this, which has nevertheless been maintained, has become inadmissible. 
35 
Insofar as it is noted on sheet 44 of the student sheet part III that the applicants for 1) and 3) viewed the student files on January 17 and 18, 2019 and that certain pages were removed from student sheets I and II, this corresponds the regulation of § 9 paragraph 2 sentence 3 SchuldatenV. Applicants must be admitted that the note is factually related to student sheets I and II. However, it does not seem inappropriate to include the note on the basis of the chronology in the student sheet part III, especially since the student sheets I to III are kept together. In order to fully document the processes of inspecting the student file, the application for applicants 1) and 3) for cleaning up could also be kept (p. 102 of the student file part III). 
36 
Furthermore, the applicants have not demonstrated that the student file contains factual information that would be factually incorrect. "Objectively correct" (cf. Art. 5 Para. 1 Letter d) GDPR) is an objective criterion that can only be used for factual information and not for value judgments, according to which the information stored about the person concerned corresponds to reality (cf. Herbst , in: Kühling / Buchner, GDPR BDSG, 2nd edition 2018, Art. 5 GDPR marginal no. 60). Even with regard to the oral criticism of September 30, 2019, which was initially challenged, the applicants did not argue that the underlying facts did not apply, but merely that they were not sufficiently cleared up. 
37 
There are no other relevant violations. Purely formal violations of the principles of good record keeping do not mean that the storage and processing of the data contained therein is illegal. Against this background, the applicants' argument that the documents are not arranged in chronological order, that individual sheets are duplicated or only available in duplicate, or that there are pages that are not paginated between the files are irrelevant. Other possible formal inaccuracies, such as a missing signature under the minutes of the class conference on October 10, 2018 (page 5 of the student form part III) or the school aid conference on December 12, 2019 (pages 108-109) do not constitute grounds for the illegality of the data processing in this sense. 
38 
A right to erasure from the law on the protection of personal data in the Berlin administration of June 13, 2018 - BlnDSG - [GVBl. 2018, 418]) does not exist. Admittedly, the rules of Section 66 SchulG in conjunction with the SchuldatenV itself do not provide for the right to erasure due to the area exception of Section 2 (8) sentence 1 BlnDSG and are not conclusive in this respect (see Section 2 (8) sentence 2 BlnDSG). However, the BlnDSG does not contain any general right to erasure within the scope of the GDPR. Because the BlnDSG in its new version, as evidenced by the justification of the law, only serves to supplement, clarify and possibly limit the GDPR and not to repeat the provisions contained therein (see House of Representatives of Berlin, printed matter 18/1033 of 9 May 2018, p. 68) . The right to erasure from § 25 BlnDSG only concerns the case of documents from public archives that are not relevant here. The regulation of § 44 BlnDSG is only applicable to matters that are not relevant here the scope of Directive (EU) 2016/680 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons in the processing of personal data by the responsible Authorities for the purpose of preventing, investigating, detecting or prosecuting criminal offenses or the execution of sentences, as well as the free movement of data and repeal of Council Framework Decision 2008/977 / JHA (OJ L 119, p. 89). 
39 
The Federal Data Protection Act of June 30, 2017 (Federal Law Gazette I p. 2097) - BDSG -, last amended on November 20, 2019 (Federal Law Gazette I p. 1626) does not apply because it does not involve the processing of personal data by public Agency of the federal government or a public agency of the federal states, which carries out federal law or acts as a body of justice, (cf. § 1 para. 1 BDGS). 
40 
Since no claim to deletion has already been made credible, the asserted claim to the creation of a clean and newly paginated student file is ruled out from the outset. 
41 
For the reasons mentioned above, the requirements for the auxiliary application are not met either. 
42 
The decision on costs follows from sections 154 (1) and 159 sentence 1 of the VwGO in conjunction with section 100 (1) ZPO. The determination of the amount in dispute is based on Section 52 (1) and (2) in conjunction with Section 53 (2) No. 1 of the GKG, whereby the amount in dispute must be measured at half the initial value of Section 52 (2) of the GKG in school law urgent proceedings (see OVG Berlin-Brandenburg, decision of April 18, 2013 - OVG 3 S 17.13 - mwN).