VG Berlin - 2 K 182.19

VG Berlin - 2 K 182.19
Court:	VG Berlin (Germany)
Jurisdiction:	Germany
Relevant Law:	§ 2 Freedom of Information Act for the State of Berlin (IFG Berlin) § 3(1) IFG Berlin § 6 IFG Berlin
Decided:	31.01.2020
Published:
Parties:	Anonymous
National Case Number/Name:	2 K 182.19
European Case Law Identifier:	ECLI:DE:VGBE:2020:0131.2K182.19.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Berlin-Brandenburg Court Decisions (in German)
Initial Contributor:	n/a

The Berlin Administrative Court gave a police enforcement officer the right to access the evaluation protocol of data queried about the applicant in POLIKS, the Berlin police database.

English Summary

Facts

Ιn the course of disciplinary proceedings, it had become known that information about the applicant, had been queried in the database. Among other things, the police officer had requested information about which data had been queried by which police officer and for what reason within the last two years. This request was last rejected on 15.03.2019 on the grounds of the protection of personal data and the alleged pursuit of private interests. Thereupon, the police officer filed a complaint with the Administrative Court of Berlin.

Holding

The Court considered the action to be admissible and well founded: The defendant's contested decision was unlawful and infringed the applicant's information rights.

The legal basis for this is § 3 paragraph 1 of the Gesetz zur Förderung der Informationsfreiheit im Land Berlin (Freedom of Information Act for the State of Berlin - IFG Berlin). According to this law, every person has the right to inspect the content of the files kept by a public body mentioned in § 2 IFG Berlin or to obtain information about their content. The Court ruled that the policemen, as a natural person, belongs to the group of entitled persons and that the police commissioner, as an authority of the Land of Berlin, is to be regarded as a public body obliged to provide information under § 2 IFG Berlin. In addition, the evaluation of the data protocol “in written or electronically recorded records” constitutes a file within the meaning of §3 paragraph IFG Berlin.

The Court also did not see the reason for exclusion under §6 IFG Berlin, according to which there is no right to inspect or obtain information about files if personal data are published and there are factual indications that the inspection or obtainment of information predominantly pursues private interests.

Although § 6 of the IFG Berlin gives priority to the protection of personal data over the interest in information, the Court considers that, in view of the disciplinary proceedings conducted against the applicant, which involve the requested database searches, the question of legal review of State measures also arises here. In addition, the Court found that there were also no factual indications that the interests of the persons concerned were contrary to those worthy of protection. In particular with regard to § 6 paragraph 2 No. 2 IFG Berlin, this can generally be ruled out if the file shows the involvement of a particular official in administrative proceedings by publishing his or her name, title, academic degree, profession, internal job title, business address and telephone number.

Since this was the case in the present ruling, the Court agreed with the applicant and gave him the right to obtain information on the search for data relating to his person.

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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
Facts

1

The plaintiff seeks information about the data records in databases of the Land of Berlin that were queried about his person.

2

The plaintiff works as a police officer for the defendant. In the course of disputes under employment law, he became aware that information about him was queried in the defendant's databases. In a letter dated 29 March 2015, the plaintiff requested, among other things, information on the question which police officers had queried him "in the police or EWW" within the last two years and for what reason. Thereupon, on 14 April 2015, the defendant ordered an evaluation of the protocol data.

3

In a letter dated 25 January 2018, the plaintiff again applied for access to the files of the "protocol tape search" conducted by the defendant and referred to the Freedom of Information Act Berlin. In a decision dated February 14, 2018, the defendant rejected the request for inspection of the protocol data evaluation of April 14, 2015, and referred to personal data to be protected of those persons who had conducted a query in police databases on the plaintiff during the evaluation period. In addition, there were indications that the plaintiff was pursuing predominantly private interests with his request.

4

The applicant lodged an objection to this by letter of 15 March 2018, which the defendant rejected by an objection notice of 14 May 2019. According to the Berlin Data Protection Act, this information would only have to be made available to the Berlin Commissioner for Data Protection and Freedom of Information upon request, but the data subject would not have a corresponding right of access.

5

In his action brought on 12 June 2019, the plaintiff further pursues his request and submits He does not pursue primarily private interests, but official interests. Both judicial disciplinary proceedings and further disciplinary proceedings by the authorities are being conducted against him. In these proceedings, the defendant had regularly conducted police inquiries without any factual grounds and without these inquiries having been documented in the files.

6

The applicant claims that the Court should

7

order the defendant, by annulling its decision of 14 February 2018, as amended by the decision of 14 May 2019, to provide the applicant with information on the data relating to him which have been consulted in POLIKS or the EWW over the last two years.

8

The defendant requests in writing

9

dismiss the action.

10

It refers to the contested decisions and carries out supplementary measures: Even if the plaintiff does not pursue predominantly private interests, his interest in information does not outweigh the interest in secrecy of the third parties concerned. Admittedly, the interests of the persons concerned which are worthy of protection would not normally preclude the participation of a particular official in administrative procedures, his or her name, title, academic degree, profession, internal job title, official address and telephone number, in so far as a file reveals the involvement of a particular official in administrative procedures. However, this is a case that does not correspond to this rule. For the minutes serve the sole purpose of checking the lawfulness of data processing and may only be used for this purpose by the persons named in § 62.3 of the Berlin Data Protection Act; employee checks under data protection law must therefore be restricted to this group of persons. Here, the employees carrying out the inquiries had an interest worthy of protection in ensuring that their conduct was only monitored by the bodies designated for this purpose.

11

For further details of the facts of the case and the state of the dispute, reference is made to the defendant's case file and the administrative proceedings which were the subject of the decision.

Reasons for the decision

12

With the agreement of the parties, the rapporteur shall decide on the action without an oral hearing (Article 87a(2) and (3) and Article 101(2) of the Rules of Procedure).

13

Based on the objectified recipient horizon, the claimant's claim is to be interpreted to the effect that the plaintiff of the case seeks access to the protocol data evaluation arranged by the defendant on April 14, 2015. This is already indicated by his request of January 25, 2018 in the administrative proceedings, in which he requested access to the "protocol tape query". The subsequent notice of 14 February 2018 and the statement of claim also refer to this protocol tape or protocol data evaluation several times. In particular, the plaintiff states on p. 4 of the statement of claim that he is "entitled to be informed of the protocol tape evaluation".

14

The action with this request is admissible and well founded. The challenged decision of the defendant of 14 February 2018 in the form of the notice of opposition of 14 May 2019 is unlawful and infringes the plaintiff's rights (see § 113.5 of the Rules of the Administrative Courts (VwGO)). The plaintiff has a right to access the requested information.

15

The legal basis for the applicant's request is Article 3(1), first sentence, of the Gesetz zur Förderung der Informationsfreiheit im Land Berlin - IFG Berlin. According to this law, every person has the right, in accordance with the provisions of this law, to inspect or obtain information about the content of the files kept by the public body, as he or she chooses, vis-à-vis the public bodies mentioned in § 2 IFG Berlin. These conditions are given here (see 1.). The defendant has not plausibly demonstrated the existence of grounds for exclusion (see 2.).

16

1. the plaintiff belongs to the group of persons entitled to claim as a natural person As an authority of the State of Berlin, the police commissioner, as an authority of the State of Berlin, is obliged to provide information pursuant to § 2 para. 1 IFG Berlin. The protocol data evaluation is as a written or electronically recorded other record also file in the sense of § 3 paragraph 2 IFG Berlin.

17

2. the defendant must plausibly demonstrate the existence of grounds for exclusion This is missing.

18

a) Insofar as the defendant refers to § 62 of the law for the protection of personal data in the Berlin administration - BlnDSG -, this does not result in a special legal reason for exclusion of information claims under the Freedom of Information Act. Rather, Section 62 (3) of the BlnDSG in particular only contains regulations as to the cases in which logs that were created within the framework of automated processing systems may be used by public authorities. However, the provision does not protect the officials who query the data.

19

b) Nor does Section 6 IFG Berlin preclude the claimant's right to access to information. Pursuant to § 6.1 IFG Berlin, the right to inspect files or file information does not exist insofar as personal data are published through the inspection of files or file information and there are factual indications that predominantly private interests are being pursued or that the disclosure conflicts with interests of the persons concerned which are worthy of protection and the interest in information (§ 1 IFG Berlin) does not outweigh the interest of the persons concerned in maintaining secrecy. The standard contains two variants in which the publication of personal data is excluded, on the one hand if there are actual indications that predominantly private interests are pursued (see aa)) and on the other hand if the disclosure conflicts with interests of the persons concerned which are worthy of protection (see bb)).

20

aa) With the first variant to be examined primarily (predominant pursuit of private interests), the Act contains an abstract balancing of interests, which gives priority to the protection of personal data over the interest in information and excludes the right to access to information. This first variant of the reason for exclusion presupposes that there are factual indications that predominantly private interests are being pursued (Berlin-Brandenburg Higher Administrative Court, judgment of 14 July 2016 - OVG 12 B 24.15 - juris para. 20). However, this is not the case here. For with regard to the disciplinary proceedings conducted against the plaintiff, with which the requested recorded police inquiries are connected, the control of state action is also involved (see in this respect OVG Berlin-Brandenburg, judgment of 14 July 2016 - OVG 12 B 24.15 - juris nr. 20 loc. cit.) In addition, the question of the lawfulness of police inquiries by individual police officers also concerns the lawfulness of state action, so that the request for information does not predominantly pursue private interests.

21

bb) There are also no actual indications that the disclosure would conflict with interests of the persons concerned worthy of protection and that the interest in information does not outweigh the interest of the persons concerned in maintaining secrecy. According to § 6, Subsection 2, Sentence 1, No. 2, IFG Berlin, the disclosure of personal data does not generally conflict with the interests of the persons concerned that are worthy of protection, insofar as a file reveals the involvement of a particular public official in administrative procedures, his or her name, title, academic degree, profession, internal job title, official address and telephone number.

22

The personal data contained in the protocol data evaluation are data in the sense of § 6 para. 2 sentence 1 no. 2 IFG Berlin, in particular the names and internal job titles of the police officers who have been involved in administrative procedures as officers.

23

The defendant has not rebutted the presumption that in this case the interests of the persons concerned worthy of protection do not conflict with this. Insofar as he again refers to § 62.3 BlnDSG in this context, this does not result in a restriction of the citizen's control possibilities (affected by police inquiries) via the Freedom of Information Act. Rather, pursuant to § 62.3 BlnDSG, the protocols may also be used to check the lawfulness of data processing by the data subject - i.e. the person who was the subject of the data query (see in this respect § 31 No. 1 BlnDSG) - (see on the corresponding provision in the Federal Data Protection Act Schwichtenberg, in: Kühling/Buchner, Datenschutz-Grundverordnung/BDSG, 2nd ed. 2018, § 76 BDSG, marginal no. 5). Furthermore, the defendant has also not explained in the beginning why the personal data of the persons querying the databases contained in the protocol data evaluation are so sensitive that, contrary to the presumption of the rule in § 6.2 sentence 1 no. 2 IFG Berlin, their disclosure should be opposed by interests worthy of protection.

24

The decision on costs is based on Section 154(1) of the VwGO. The decision on provisional enforceability is based on § 167 VwGO in conjunction with § 708 no. 11, § 711 sentences 1 and 2, § 709 sentence 2 ZPO.

25

DECISION
The value of the object in dispute is set at 5,000.00 euros in accordance with §§ 39 ff., 52 f. of the Court Costs Act.