RvS - 202000944/1/A3

RvS - 202000944/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15(1) GDPR Article 15(1)(g) GDPR Article 17(3) GDPR Article 3 Archiefwet 1995 Article 5 Archiefwet 1995
Decided:	14.10.2020
Published:	14.10.2020
Parties:	Municipality of Eindhoven
National Case Number/Name:	202000944/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2020:2419
Appeal from:	Rb. Oost-Brabant (Netherlands)‎ 19/1600
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	De Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Council of State in the Netherlands (RvS) held that a complainant cannot use Article 15 GDPR to find out who reported to the municipality that he may not be entitled to receive certain benefits. The complainant could also not have his bank details erased because of the municipality's legal obligations.

English Summary

Facts

Appellant has been receiving welfare since 2011. In 2017, the municipality carried out an investigation triggered by an anonymous tip. As a result of this investigation the municipality concluded that the appellant had no right to receive the benefit and was supposed to pay it back. Appellant submitted a series of access and erasure requests to the municipality in 2018. Among other things, he wanted to have his bank details erased and he wanted to obtain access to the name of the reporter whose tip led to the investigation. The municipality refused to provide both and Court of First Instance upheld this part of the municipality's decision.

Dispute

Appellant is challenging the decision.

Holding

The Council declared the appeal invalid.

Appellant cannot access the name of the reporter because: a) the municipality says it doesn't have it and there is no reason to doubt that; b) even if they did have the name, appellant is not entitled to have access to it because it doesn't relate to him; c) the reporter is not the source of information, so Article 15(1)(g) does not apply.

Appellant also cannot have his bank details removed because of the Archive act 1995 (Archiefwet 1995): the municipality is under the legal obligation to keep the information about social benefits for 10 years.

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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.

Authority
Council of State
Date of pronouncement
14-10-2020
Date of publication
14-10-2020 
Case number
202000944/1/A3
Jurisdictions
Administrative law
Special features
Appeals
Content indication
By decision of 30 November 2018, the Municipal Executive of Eindhoven decided on a number of requests from [appellant] under the General Data Protection Regulation. Since 2011, [the appellant] has received a payment under the Participation Act. The Municipality of Eindhoven has initiated an investigation into the lawfulness of that benefit. This investigation was prompted by an anonymous report. The findings of this investigation were laid down in a report dated 14 November 2017. The report concluded that the right to a benefit should be withdrawn and that the benefit provided should be reclaimed. By decision of 30 November 2018, the Board decided to grant access to the personal data processed of [the appellant] and provided him with the report for that purpose. That report had already been provided to him following the granting of digital access to his file on 16 May 2018. The College does not claim to have any other information at its disposal.
Sites
Rechtspraak.nl 
Enriched pronunciation 
Ruling
202000944/1/A3.
Date of judgment: 14 October 2020
SECTION
ADMINISTRATIVE LAW
Judgment on the appeal of:
[appellant], living in Eindhoven,
against the judgment of the District Court of Oost-Brabant of 20 December 2019 in Case No 19/1600 in the proceedings between:
[appellant]
and
the College of Mayor and Aldermen of Eindhoven.
Process sequence
By decision of 30 November 2018, the College decided on a number of requests from [appellant] under the General Data Protection Regulation (hereafter: GPR).
By decision of 12 June 2019, the College upheld part of the [appellant's] objection.
By judgment of 20 December 2019, the court dismissed the appeal brought by [the appellant] against that judgment
- declared well-founded,
- annulled the decision of 12 June 2019 and
- instructed the College to decide again on the objection. The court's decision is attached.
The appellant appealed against that judgment.
By decision of 6 March 2020, the College again decided on the objection and declared it partially well-founded.
The College made a written presentation.
The Division heard the case on 24 August 2020, where [the appellant], assisted by L.A.M. van der Geld, attorney at law in Groningen, and the Board, represented by M.L.M. Lammerschot, appeared.
Considerations
Introduction
1.    The legal assessment framework is set out in the Annex, which forms part of this judgment.
2.    Since 2011, [appellant] has received a payment pursuant to the Participation Act. The Municipality of Eindhoven has initiated an investigation into the legitimacy of that benefit. This investigation was prompted by an anonymous report. The findings of this investigation were laid down in a report dated 14 November 2017 (hereafter: the report). The report concludes that the right to benefit must be withdrawn and the benefit provided must be reclaimed.
    By e-mail dated 1 October 2018, addressed to the Municipality's Data Protection Officer, [Appellant] requested the removal of his personal data from the Municipality's information systems.
    By e-mail dated 4 October 2018, addressed to the municipal data protection officer, he requested access to the social investigation fraud report, which he was refused.
    By e-mail of 25 October 2018, addressed to the secretariat of the Social Domain, he requested the deletion of his personal data pursuant to Article 17 of the AVG.
    By e-mail of 30 October 2018, addressed to the secretariat of the Social Domain, he requested the removal of his bank details and copies of his passport from the information systems.
    By its decision of 30 November 2018, the Board decided to grant access to the personal data processed of [the appellant] and provided him with the report for that purpose. That report had already been provided to him following the granting of digital access to his file on 16 May 2018. The College does not claim to have any other information at its disposal. The request for the deletion of his personal data processed in the context of the lawfulness investigation was rejected. According to the Municipal Executive, it is required under the Archive Act 1995 to archive such data, so that an exception under Article 17, third paragraph, of the AVG applies to the obligation to delete data. The College must be able to demonstrate the lawfulness of a decision taken. The retention periods are included in the VNG's 2017 Selection List of Municipalities and Intermunicipal Bodies (hereafter: the Selection List).
    By the decision of 12 June 2019, the [appellant's] objection was upheld, only as regards the failure to remove copies of his passport. For the rest, the objection was declared unfounded. With regard to the questions raised by the [appellant] under A to E in his notice of objection, according to the Board, the requests by e-mail have been extended to such an extent that the objection no longer relates to his original requests. Moreover, according to the College, there is no need to reply to questions concerning the content of documents to which access has been granted.
Attacked verdict
3.    The court has considered that the request for information, as formulated under A, B and C of the [appellant's] notice of objection, falls within the scope of his requests by e-mail. It concerns information as referred to in Article 15, first paragraph, under b, c and g, of the GCG. The Board wrongly failed to provide this information. Under D of the notice of objection, the [appellant] requests to disclose who the anonymous reporter is. However, the Board was not obliged to disclose this information because Article 15, first paragraph, of the AVG does not oblige it to do so. Under E, [the appellant] requests removal of his bank details and copies of his passport. With regard to his bank details, [the appellant] did not dispute the fact that the Municipal Executive has an obligation to retain those details, so that, pursuant to Article 17, third paragraph, of the AVG, the Municipal Executive did not have to remove those details. Since [the appellant] only requested access to his personal data processed by the College in the context of a lawfulness investigation, the College did not have to grant access to more data, the Court held.
Appeals
4.    [appellant] submits that the court wrongly held that the college is not obliged to disclose the name of the anonymous reporter. The court did not give reasons why that obligation does not follow from Article 15, paragraph 1, opening words, of the AVG. In this respect it also invoked part g of that provision. The Court did not recognise that he had an important interest in knowing that name. The anonymous reporter is unreliable and his statements should not give rise to an investigation against him. The court also wrongly ruled that the college was not obliged to remove the bank details he submitted to the college from the information systems. He challenges the college's assertion that it has a statutory duty to object. The Court wrongly assumed that that statement was correct and should have verified it, [the appellant] submits.
Anonymous detector
4.1.    In view of Article 15, first paragraph, of the GC, [the appellant] is entitled to obtain access only to the personal data concerning him and to the information referred to in this provision. [Appellant] has requested the Board to disclose who the anonymous reporter is. At the hearing, the Board stated that the name of the anonymous notifier is not known and the Division sees no reason to doubt this statement. Even if that name were known, the Court rightly followed the Board in its opinion that [the appellant] is not entitled to inspect that information on the basis of Article 15, paragraph 1 of the AVG, because it does not concern personal data relating to him or her. Nor is the anonymous reporter the source as referred to in Article 15, opening words and under g, of the AVG, since the anonymous reporter's personal data do not originate from him.
Bank details
4.2.    It follows from Article 17, third paragraph, of the AVG that the Municipal Executive has no obligation to delete personal data without unreasonable delay if it has a statutory obligation to process such data. It follows from Article 3 of the Archive Act 1995 that the Municipal Executive is obliged to keep the archive documents held by it in a good, orderly and accessible state. The Selection List has been drawn up pursuant to Section 5 of the Archive Act 1995. According to Annex 1 of the Selection List, that list also applies to the Municipality of Eindhoven. It follows from the Selection List that the retention period for documents in the context of the rechecking of benefits in the social domain is 10 years. It follows from Section 6.5.2 of the VNG's Guide to use of the Selection List for Municipalities and Intermunicipal Bodies 2017 that the implementation of the monitoring of the Participation Act is subject to this monitoring. Now that, as the Board states, bank details are kept for the purpose of rechecking benefits and the obligation to keep them is based on a statutory basis, the court rightly considered that the Board was not obliged to remove the bank details of [the appellant].
4.3.    The argument fails.
Other grounds
5.    Furthermore, [the appellant] requests the Division to consider all grounds put forward in the appeal proceedings as repeated and incorporated.
5.1.    The Court has addressed these grounds. In his appeal, except for what was discussed above, [the appellant] did not put forward any reasons why the refutation of those grounds and arguments in the judgment under appeal is incorrect or incomplete. What [the appellant] has put forward to that extent therefore does not constitute grounds for setting aside the judgment under appeal.
Conclusion on the appeal
6.    The appeal is unfounded.
The appeal against the decision of 6 March 2020
7.    On 6 March 2020, the College again decided on [appellant's] objection. This decision was taken in implementation of the judgment under appeal. In view of Section 6:24 of the General Administrative Law Act, read in conjunction with Section 6:19(1) of that Act, this decision is deemed to be the subject of these proceedings by operation of law.
    In its decision of 6 March 2020, the Board declared the objection well-founded, insofar as it refused to remove the copy of [appellant's] passport and did not grant access to information covered by Article 15, first paragraph, under b, c and g, of the AVG. The request of [appellant] will still be granted to that extent. However, the decision of 30 November 2019 has been maintained, insofar as bank details have been refused to be removed from information systems. The Board takes the view that it has an obligation to retain those personal data and that the retention period is ten years. The College also maintains its refusal to provide the name of the anonymous reporter. It does not follow from Article 15(1) of the AVG that the Municipal Executive must provide this information, according to the Municipal Executive.
8.    [Appellant] submits that the College wrongly failed to disclose the identity of the anonymous reporter. Contrary to the opinion of the College, that information should be made available on the basis of Article 15 of the AVG. He has an important interest in finding out his name. The anonymous reporter is unreliable and his statements should not give rise to an investigation against him. Furthermore, the College erroneously did not remove his bank details from the information systems. He disputes the college's assertion that it has a statutory obligation to object.
8.1.    As considered under 4.1, in view of Article 15, first paragraph, of the AVG, the Municipal Executive is not obliged to disclose the name of the anonymous reporter. As considered under 4.2, in this case, in view of Article 17, third paragraph, of the AVG, it was also not obliged to remove the bank details of [the appellant] from the information systems. In view of this, there is no ground for the opinion that the decision of 6 March 2020 was made in violation of Articles 15 and 17 of the AVG.
    The argument fails.
8.2.    The appeal is unfounded.
Legal costs
9.    There are no grounds for an order to pay costs.
Decision
The Administrative Jurisdiction Division of the Council of State:
I. dismisses the appeal as unfounded;
II. dismisses the appeal against the decision of the Municipal Executive of Eindhoven of 6 March 2020 as unfounded.
Adopted by A.W.M. Bijloos, chairman, and A. ten Veen and H.J.M. Baldinger, members, in the presence of K.S. Man, Registrar.
The President is prevented from signing the ruling.   
The Registrar is prevented from signing the judgment.
Pronounced in public on 14 October 2020
629.