VG Berlin - 2 K 98/20

VG Berlin - 2 K 98/20
Court:	VG Berlin (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 9(1) GDPR
Decided:	27.06.2022
Published:	27.10.2022
Parties:
National Case Number/Name:	2 K 98/20
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	openJur (in German)
Initial Contributor:	n/a

The Administrative Court of Berlin held that the interest of secrecy of Bundestag members about their "old-age compensation due to health problems" outweighs a journalists interest in collecting the information as it concerns special categories of personal data under Article 9(1) GDPR. However, this was not the case for deceased persons as their data does not constitute personal data according to Article 4(1) GDPR.

English Summary

Facts

The plaintiff, a journalist, sought access to information in connection with the granting of "old-age compensation due to health problems" to former members of the Bundestag. He requested an anonymised or otherwise redacted overview of cases between 2000 and 2020 from the Bundestag, broken down by year and with information regarding whether they had been decided positively and negatively, as well as the number of cases since 2006 in which compensation had been paid out without their requirements being met. In addition, he requested an affirmation regarding the correctness and completeness of the information as well as access to all relevant administrative files.

The German Bundestag rejected the plaintiff's applications on the grounds that access to information was contrary to the protection of personal data. It was highly likely that the applicant would be able to identify the persons concerned. This resulted from the fact that only a relatively small number of MPs left the German Bundestag prematurely. Since the career of individual MPs could be easily traced (e.g. by means of an internet search) the information and the files could be attributed to a narrowly defined group of persons, even if the documents were redacted.

Insofar as the MPs were deceased, the disclosure would be contrary to the post-mortem right of personality. None of the persons concerned and none of the relatives of the deceased had declared their consent. The interest of the data subjects in secrecy outweighed the interest in information of the plaintiff, because the requested information was connected to the political mandate of the individuals concerned. In addition, it concerned sensitive health data.

Holding

In three steps, the court held that the information concerning former members of the Bundestag is protected insofar as they are still alive.

The court first established that the information concerning still living former members of the Bundestag constituted personal data. In accordance with Article 4(1) GDPR, an identifiable natural person is one who can be identified directly or indirectly, in particular by means of an association with an identifier such as a name. What is required is the possibility of establishing the identity of the data subject. In the context of determining whether a natural person is identifiable, account must be taken of all the means reasonably likely to be used by the controller or by any other person to identify the natural person, directly or indirectly (Recital 26 GDPR). In this light, the court held that the requested information constitutes personal data. The possibility that the living individuals concerned will be identified is not negligible. This applies irrespective of the fact that the plaintiff is only requesting information on the number of applications that have been decided, without naming names, and that the year of the decision does not necessarily correspond to the year of leaving the Bundestag. The group of persons potentially affected is limited which makes them identifiable.

Second, the court held that the still living MPs' interest in secrecy outweighs the plaintiff's interest in information. According to Article 9(1) GDPR, the transmission of special categories of personal data, such as health data, is prohibited unless one of the conditions of Article 9(2) GDPR, such as explicit consent, is met. According to Article 4(15) GDPR, health data are personal data relating to the physical or mental health of a natural person from which information about his or her state of health emerges. Consequently, the information sought by the plaintiff concerns specially protected personal data as the data as to whether the Bundestag administration has given a positive or negative decision on an application pursuant to "old-age compensation due to health problems" contains an assessment by the Bundestag administration of the physical and/or mental state of health of the applicant. Furthermore, access to information was also precluded by § 5.2(1) of the German Freedom of Information Act. According to this provision, the applicant's interest in information does not prevail in the case of information from documents insofar as they are connected with a mandate of the third party (in this case, the Member of Parliament).

Third, the court held that there are no grounds for exclusion for the information concerning deceased persons due to two reasons. Firstly, because natural persons within the meaning of Article 4(1) GDPR are only living persons (Recital 27 GDPR) the data concerning already deceased persons does not constitute personal data under the GDPR. Secondly, contrary to the arguments of the Bundestag, the post-mortem right of personality also does not prevent the disclosure of the concerned information. The deceased are not protected by the general right of personality under Article 2(1) in conjunction with Article 1(1) of the Basic Law as only living individuals are the bearers of this fundamental right. The protection of the post-mortem right of personality, also resulting from Article 1 (1) of the Basic Law, is an altogether separate right to the general right of personality. The post-mortem right of personality protects, on the one hand, a general right to respect, as well as, on the other hand, a right of the deceased to not be degraded or humiliated. Nevertheless, this right only protects against gross distortion, but not against mere questioning. The information about whether a person applied for "old-age compensation due to health problems" during his or her lifetime and how their application was decided is not likely to violate his or her general claim to respect or moral, personal and social standing. The disclosure would neither be connected with a degrading nor would it entail a gross distortion of the image of their life. Even to the extent that case law occasionally considers the extension of the post-mortem right of personality to the absolutely protected private or intimate sphere of the deceased, this does not lead to the exclusion of access to information in the case at hand. Data on a positive or negative decision on an application under "old-age compensation due to health problems" does not touch the ultimate inviolable sphere of private life as the details of the circumstances of the application would not be disclosed by the information.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

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

tenor

The defendant is obliged, with the partial cancellation of the decision of the German Bundestag of February 19, 2021 in the form of the objection decision of the same authority of April 13, 2021,

1. To inform the plaintiff how many cases

a) of retirement benefits in accordance with

- § 22 para. 1 AbgG, insofar as the applicants are deceased, and

- Section 22 (2) AbgG,

between January 1, 2000 and March 16, 2020, broken down by year, were decided positively and negatively.

b) between January 1, 2006 and March 16, 2020, benefits were paid under Section 22 AbgG without the requirements of paragraph 1 or paragraph 2 being met?

2. To grant the plaintiff access to the files on the cases of deceased applicants mentioned under 1. Names, dates of birth, titles, academic degrees, job and function titles, addresses and telecommunications numbers are to be blacked out.

Moreover, the application is dismissed.

The defendant bears 3/5 of the costs of the procedure, the plaintiff 2/5.

The judgment is provisionally enforceable with regard to the costs.

The respective enforcement debtor can avert enforcement by providing security in the amount of 110 percent of the amount enforceable on the basis of the judgment, unless the respective enforcement creditor provides security in the amount of 110 percent of the respective enforcement amount before enforcement.
facts

The plaintiff requests access to information in connection with the granting of old-age allowances due to health damage to (former) members of the Bundestag.

The plaintiff is a journalist. In letters dated March 16, 2020 and May 22, 2020, he applied to the German Bundestag for information on the number of positive and negative applications for old-age allowances due to damage to health of members of parliament in the years 2000 to 2020 (broken down by year) and the number of cases since 2006 in which compensation was paid without the conditions being met. In addition, he applied for an affidavit to be issued regarding the correctness and completeness of the information as well as insight into the corresponding administrative processes.

On June 24, 2020, the plaintiff filed an action for failure to act.

By decision of February 19, 2021, the German Bundestag rejected the plaintiff's applications. The German Bundestag rejected the objection raised against this in an objection decision dated April 13, 2021, on the grounds that access to information conflicted with the protection of personal data. There is a substantial concrete probability that the plaintiff will be able to identify those affected. This is due to the fact that only a relatively small number of MPs are leaving the German Bundestag prematurely. Since the career of individual MPs can easily be traced, e.g. by means of internet research, the information and the files can be assigned to a narrowly defined group of people, even if the blacking out considered by the plaintiff is carried out. Insofar as the deputies have died, the post-mortem right of personality precludes the announcement. In the context of the third-party participation procedure, none of those affected and none of the relatives of the deceased gave their consent. The interest in secrecy outweighs the interest in information because it is information from documents that are related to the client relationship of the persons concerned. It is also health data. There is no right to submit an affidavit.

The plaintiff has maintained his action, including the decision of February 19, 2021 and the objection decision of April 13, 2021. He argues that post-mortem personality rights do not preclude access to information regarding the deceased. The requested information concerns the MEPs in their professional activities. With regard to living persons, the protection of personal data does not prevent access to information. The people are not identifiable. The right to information relates to abstract case numbers. According to the case law of the Chamber, such persons cannot be identified. A re-identification is not possible or only possible with a disproportionate effort. It is true that the careers of many MPs can be partially traced through public sources. However, that is irrelevant. Because it is not said that MPs did not receive compensation payments, although they held other public or private offices at the same time. The data on MEPs' CVs available on Wikipedia and other databases are not reliable sources. The data protection case law of the Court of Justice of the European Union is not transferable because it does not take into account the freedom of information guaranteed by the constitution and conventions. For the right to access the files, the anonymity is guaranteed by the blackening of the documents. The interest in information resulted from the fact that he wanted to determine what costs were incurred by the payment of old-age allowance for the Bundestag or the taxpayer and the order of magnitude of the number of cases. There are also indications that there may have been abuses in the process.

The plaintiff requests

to oblige the defendant, repealing the decision of the German Bundestag of February 19, 2021 in the form of the objection decision of the same authority of April 13, 2021,

I. to provide him with information on the following questions:

1. How many cases of old-age compensation under § 22. Para. 1 AbgG were positively decided between January 1, 2000 and March 16, 2020, broken down by years, alternatively broken down by legislative periods, alternatively based on the entire period, how many negative?

2. How many cases of old-age compensation under Section 22 (2) AbgG were positively decided between January 1, 2000 and March 16, 2020, broken down by years, alternatively broken down by legislative periods, alternatively based on the entire period, how many negative?

3. How many cases were there between January 1, 2006 and March 16, 2020 in which amounts were paid out in accordance with Section 22 AbgG without the requirements of paragraph 1 or paragraph 2 being met?

II. to swear in lieu of an oath that the answers to I.1. and I.2. are correct and complete.

III. to grant him access to the files on the cases mentioned under I., whereby names, dates of birth, titles, academic degrees, job and function titles, addresses and telecommunications numbers, alternatively data relating to the physical or mental health of a natural person, including the provision of health care, can be redacted.

The defendant requests

reject the complaint.

It contradicts the breakdown by years requested as an alternative. In addition, she submits that the application I.3. was not sufficiently specific. Otherwise, access to information is opposed to the protection of personal data of those who are still alive or the post-mortem personality rights of the deceased.

The application I.1. The potentially affected group of MPs who left between 2000 and 2020 is manageable. Also from the application I.2. affected former MPs are identifiable. The total number of people who left the Bundestag before January 1, 2021 and did not die before January 1, 2000 is 2,186. Those MPs who have not acquired an entitlement to an old-age allowance and who have reached retirement age on 31 December 1999 are to be deducted from this group of people. A total of 794 people would be considered as potential applicants. The numbers related to the individual years ranged between 53 and 297 people. These could be determined by name on the basis of the publicly accessible master data of all MPs. A further limitation is possible through individual research (curriculum vitae on Wikipedia, individual inquiries to members of parliament and their relatives and other research tools). On the one hand, this could exclude those people who were in good health in the respective year. On the other hand, a targeted search can be made for former MPs for whom there are indications of health problems or a withdrawal from a previous position and/or the public.

The interest in secrecy outweighs the interest in information because particularly protected health data is affected. In addition, the contents of the files are comparable to personnel files. Even if an assessment were to be made, this would be at the expense of the plaintiff. Because it is particularly sensitive and highly personal information of the persons concerned. The suspicion of abuse expressed was unsubstantiated.

The plaintiff has no right to submit an affidavit (Application II.). The application for inspection of the administrative processes (application III.) should also be rejected, taking into account the blackening proposed by the plaintiff. The naming of the date on which he left the Bundestag alone makes it possible to identify the person concerned. Further information contained in the files would be added, e.g. the length of membership, the number of the electoral period, certificates of earnings and comparative notifications from other authorities about activities there. Even without the disclosure of individual health-related data, the health reference would not be completely eliminated. Even the information that a Member of Parliament is receiving an old-age allowance represents health data.

In addition to the general claim to respect and the moral and personal validity value, the postmortem personality right also includes an absolutely protected core area of privacy. A person's picture of life can also be impaired by third parties gaining insight into intimate details of one's own personality. Due to their health-related and highly personal nature, they can be assigned to the absolutely protected core area of privacy. They are comparable to data entrusted to a doctor or transmitted in the context of applying for social benefits. In addition to names and addresses, the files contained data of other family members, account and tax numbers, reports on the illness, individual presentations by the applicant on the illness, previous information on the course of the illness, further correspondence related to the illness and corresponding information from those affected as well as the details of the benefits paid.

For further details of the facts and the dispute, reference is made to the court files, the files consulted in the VG 27 L 90/20 proceedings and the administrative processes.
reasons

According to § 6 paragraph 1 of the Administrative Court Code - VwGO - the rapporteur is responsible as a single judge after the chamber has assigned the legal dispute to him for decision by decision of May 5, 2021.

As far as the plaintiff alternatively a breakdown with the applications I.1. and I.2. If the requested information is requested according to legislative periods and, alternatively, without a breakdown according to years or legislative periods, there is no change in the action to be measured against the requirements of § 91 VwGO. In relation to the announced request for a breakdown by years, the subject of the dispute is the same. Because the main and auxiliary requests are aimed at access to identical information. They concern the applications decided between January 1, 2000 and March 16, 2020 according to § 22 paragraph 1, paragraph 2 of the Members of the Act - AbgG. The number of applications approved in a year or a legislative period are subsets of the applications approved in the overall period. With regard to the breakdown by legislative periods, the defendant also entered into the lawsuit without objecting to the breakdown (Section 91 (2) VwGO).

The admissible action is justified to the extent evident from the operative part.

I. The claimant is not entitled to information about the number of applications for old-age benefits that were positively or negatively decided between January 1, 2000 and March 16, 2020 in accordance with Section 22 (1) AbgG (Application I.1.) with regard to living persons to; in this respect, the decision of February 19, 2021 in the form of the objection decision of April 13, 2021 is lawful and does not violate the plaintiff's rights (Section 113 (5) sentence 1 VwGO, see 1.). As far as deceased persons are concerned, the plaintiff has the right to access information (2.).

The legal basis for the plaintiff's request is Section 1 (1) sentence 1 of the Freedom of Information Act - IFG. According to this law, everyone has a right of access to official information vis-à-vis the federal authorities. The Freedom of Information Act applies to other federal bodies and institutions in accordance with Section 1 Paragraph 1 Sentence 2 IFG, insofar as they perform administrative tasks under public law.

The requirements of this regulation are met. The plaintiff is entitled to claim as a natural person. With regard to the requested information, the German Bundestag is a body subject to an obligation to provide information within the meaning of Section 1 (1) sentence 2 IFG. The processing of applications for the granting of old-age benefits in accordance with § 22 AbgG is an activity that cannot be assigned to the specific area of parliamentary matters. Rather, the German Bundestag performs mandate-related administrative tasks that fall within the scope of the Freedom of Information Act (cf. draft of a law regulating access to federal information of December 14, 2004, Bundestag printed paper 15/4493 p. 8; Schoch, IFG , 2nd edition 2016, § 1 para. 201). The desired official information (§ 2 No. 1 IFG) is available at the Bundestag. The addition of existing information, which may involve considerable administrative effort, is no longer covered by § 1 Para. 1 Sentence 1 IFG (cf. BVerwG, judgment of November 27, 2014 - BVerwG 7 C 20/12 - BVerwGE 151, 1 para. 37).

1. Insofar as the information relates to persons who were still alive at the time of the last oral hearing, the protection of personal data precludes access to the information. According to Section 5 (1) sentence 1 IFG, access to personal data may only be granted if the applicant's interest in information outweighs the legitimate interest of the third party in excluding access to the information or if the third party has consented.

a) The requested information is personal data. This term is based on Art. 4 No. 1 of Regulation (EU) 2016/679, General Data Protection Regulation - GDPR. According to this, "personal data" is any information relating to an identified or identifiable natural person.

The plaintiff requests information as to how many applications pursuant to Section 22 (1) AbgG have been positively and negatively decided. According to this provision, a member of the German Bundestag shall receive, irrespective of the conditions provided for in Section 19, upon application, from the month in which the application is submitted, an old-age allowance, the amount of which is based on Section 20, but at least 30 per cent of the MPs’ allowance under Section 11 (1), if while he was a member of the Bundestag, through no fault of his own, he suffered damage to his health that permanently and so significantly impairs his ability to work that he can no longer exercise his mandate and, if he leaves the Bundestag, the work he was doing when he was elected to the Bundestag or any other reasonable activity (Sentence 1). If the damage to health occurred as a result of an accident, the assessment rate increases by 20 percent up to a maximum of the maximum assessment rate for old-age benefits (sentence 2).

The information as to whether a specific person has submitted an application for old-age compensation due to damage to health under this provision and how this was decided contains a statement about this person. It is linked to it because of its content (cf. ECJ, judgment of December 20, 2017 - C-434/16 [Nowak] - ECLI:EU:C:2017:994 para. 35).

The persons affected by the information are identifiable. According to Art. 4 No. 1 Clause 2 GDPR, a natural person who can be identified directly or indirectly, in particular by means of assignment to an identifier such as a name, is regarded as identifiable. It is necessary to be able to determine the identity of the data subject (Karg, in: Simitis/Hornung/Spiecker, Datenschutzrecht, 2019, Art. 4 No. 1 GDPR marginal number 62; Article 29 Data Protection Group, Opinion 4/2007 on the term " personal data" of June 20, 2007, p. 14). This is not the case where identification would be prohibited by law or impractical, e.g. B. because it would require a disproportionate amount of time, cost and manpower, so that the risk of identification is de facto negligible (cf. ECJ, judgment of 19 October 2016 - C-582/14 [Breyer] - ECLI:EU :C:2016:779 para. 46). In determining whether a natural person is identifiable, account should be taken of all means reasonably likely to be used by the controller or any other person to identify, directly or indirectly, the natural person. In determining whether means are reasonably likely to be used to identify the individual, all objective factors, such as the cost and time of identification, should be considered, taking into account the technology available and technological developments at the time of processing (Recital 26 GDPR).

The possibility that the claims I.1. affected living persons are identified by the plaintiff or a third party is not de facto negligible. This applies regardless of the fact that the plaintiff only requests information about the number of applications that have been decided without naming names and that the year of the decision does not necessarily correspond to the year in which he left the Bundestag. Because the potentially affected group of people is manageable. This applies both to the breakdown by year requested with the main application and to the breakdown by legislative period and naming of the total number requested as an alternative.

Only persons who suffer damage to their health while they are members of the Bundestag and who resign from the Bundestag for this reason can be considered as applicants for the granting of an old-age allowance in accordance with Section 22 (1) AbgG. The total number of deputies who left the Bundestag in the period from January 1, 2000 to March 16, 2020 is 140. This corresponds to an average of around 7 deputies per year and 23 deputies per legislative period. The names of the members of parliament and the date of their resignation are public knowledge (cf. https://www.bundestag.de/abatriarche/ausgescheide-abatriarche-content-874188).

Persons can be deducted from this group who, at the time of their departure, have reached the age limit specified in Section 19 AbgG (as amended) and have not given the Bundestag at least one (Section 19 AbgG in the version of December 22, 2007) or eight years (§ 19 AbgG in the version of February 21, 1996). According to the administrative practice of the Bundestag administration as explained in the oral hearing, this group of people has no right to benefits under Section 22 (1) AbgG from the outset. The age of the retired members of parliament and the length of their membership is also publicly known (https://www.bundestag.de/abnahme/).

For the remaining potential recipients of benefits under Section 22 (1) AbgG, it can be found out - if necessary in the exclusion procedure - whether the members of parliament left the Bundestag for health or other reasons (e.g. taking up another professional activity). The defendant explained in a comprehensible manner that this is easily possible because the persons concerned, as members of the Bundestag, are in the public eye at the time of their illness. In some cases, the reasons for leaving are documented in a list (cf. https://de.wikipedia.org/wiki/Liste_der_Teiler_des_Deutschen _Bundestag_(19._Electionperiod)#Ausgescheide_Abnahmen), in some cases they can be determined through individual research.

Contrary to the plaintiff's opinion, the use of public databases (e.g. Wikipedia) does not conflict with their lack of reliability. On the one hand, Art. 4 No. 1 Hs. 2 DSGVO (only) requires the possible, but not the secure identifiability; and on the other hand, the publicly accessible information can be verified or falsified by additional research. The plaintiff's further objection that Members of Parliament could hold other public or private offices in addition to receiving benefits under Section 22 (1) AbgG is not correct. Because § 22 para. 1 AbgG requires a permanent or such a significant impairment of the work capacity that the applicant can no longer exercise his mandate and, upon leaving the Bundestag, the exercised at the time of his election to the Bundestag or any other reasonable activity, which also administrative practice of the Bundestag administration.

Nothing else follows from the judgment of the Chamber of June 18, 2015 (VG 2 K 176/14 - juris). In the opinion of the court, there was not a sufficient probability that an individualized allocation would be possible when the number of house passes issued was announced (paragraph 30). The judgment does not allow any conclusions to be drawn for the prognosis to be made here on a case-by-case basis. Contrary to the opinion of the plaintiff, constitutional and conventional law considerations do not necessitate a different decision. This is because the right of third parties to secrecy of their personal data under Article 2(1) in conjunction with Article 1(1) of the Basic Law and Article 8(1) of the ECHR conflicts with the right to access information. In this tension, the legislator has given relative priority to data protection (BVerwG, judgment of March 17, 2016 - BVerwG 7 C 2/15 - BVerwGE 154, 231 para. 25).

b) The persons concerned have refused their consent to the disclosure of their data and their interest in secrecy, which is worthy of protection, outweighs the plaintiff's interest in information.

aa) This follows from § 5 paragraph 1 sentence 2 IFG. According to this, special categories of personal data within the meaning of Art. 9 Para. 1 DSGVO may only be transmitted if the third party has expressly consented. This provision prohibits the processing of health data, among other things. According to Art. 4 No. 15 GDPR, health data is personal data that relates to the physical or mental health of a natural person and from which information about their state of health can be derived. The information as to whether the Bundestag administration has approved an application pursuant to Section 22 (1) AbgG contains an assessment by the Bundestag administration of the physical and/or mental state of health of the applicant.

bb) In addition, access to information is opposed to Section 5 (2) alternative 1 IFG. According to this, the applicant's interest in information does not outweigh information from documents insofar as they are related to the service or official relationship or a mandate of the third party. The requested information is in a legally prescribed connection with the mandate of the deputy (see BVerwG, judgment of November 27, 2014 - BVerwG 7 C 20/12 - BVerwGE 151, 1 para. 22). Because they have the decision on applications for old-age compensation in accordance with Section 22 (1) AbgG and thus a manifestation of the appropriate compensation constitutionally required under Article 48 (3) sentence 1 GG (Klein, in: Dürig/Herzog/Scholz, GG, 2016, Article 48 marginal number 171; Welti, in: Austermann/Schmahl, AbgG, 2016, § 22 marginal number 3) on the subject.

The unsubstantiated suspicion of abuse raised by the plaintiff and his position as a member of the press (Article 5(1) sentence 2 GG) does not preclude the application of Section 5(1) sentence 2, paragraph 2 IFG because the plaintiff with § 1 para. 1 sentence 1 IFG exercises a right to which everyone is entitled (cf. OVG Berlin-Brandenburg, decision of April 13, 2018 - OVG 12 S 13/18 - juris marginal number 5).

2. As far as the information - which the defendant has not ruled out - relates to persons who had died at the time of the last oral hearing, there are no grounds for exclusion.

a) Personal data (§ 5 IFG) are not affected. Because natural persons within the meaning of Art. 4 No. 1 GDPR are only living persons (Recital 27 GDPR; BVerwG, judgment of February 28, 2019 - BVerwG 7 C 20/17 - BVerwGE 165, 1 marginal number 31).

b) The postmortem right of personality does not preclude the information. This follows from the principle of inviolability of human dignity according to Art. 1 Para. 1 GG. On the other hand, the deceased is not protected by the general right of personality pursuant to Article 2(1) in conjunction with Article 1(1) of the Basic Law, because only the living person is the bearer of this fundamental right. The protection of the postmortem right of personality resulting from Article 1.1 of the Basic Law is therefore not identical to the protective effects of the general right of personality. In the case of the deceased, what is protected is the general right to respect to which people are entitled by virtue of their personhood. In particular, this protection protects the deceased from being degraded or humiliated. The moral, personal and social value that the person has acquired through their own lifetime achievements and which protects against gross distortion, but not against mere questioning, also enjoys protection. If it is clear that a measure interferes with the protective area of postmortem personal rights, its illegality is clarified at the same time. The protection cannot be put into perspective in the course of a weighing of interests (cf. BVerwG, judgment of June 29, 2017 - BVerwG 7 C 24/15 - BVerwGE 159, 194 para. 53; see from the st. Rspr. also BVerwG, judgment of February 28, 2019 - BVerwG 7 C 20/17 - BVerwGE 165, 1 para. 28; resolutions of December 3, 2020 - BVerwG 6 A 3/20 - DVBl. 2021, 588 para. BVerwG 20 F 13/17 and others - juris para. 19; BVerfG, resolutions of January 24, 2018 - 1 BvR 2465/13 - NJW 2018, 770 para. 20 and of June 13, 2017 - 2 BvE 1/15 - BVerfGE 146 , 1 para. 103; VGH Mannheim, decision of November 6, 2019 - 1 S 2005/19 - juris para. 110; BGH, judgment of July 12, 2018 - III ZR 183/17 - BGHZ 219, 243 para. 53) .

The information that a person has submitted an application for old-age allowance in accordance with § 22 Para. 1 AbgG during his lifetime and how this was decided is not likely to violate his general claim to respect or moral, personal or social validity. This is because the disclosure of true facts does not involve either derogatory treatment or a gross distortion of one's life (cf. BVerwG, decision of December 3, 2020 - BVerwG 6 A 3/20 - DVBl. 2021, 588 para. 14) .

Also insofar as the case law occasionally considers the extension of the postmortem personality right to the absolutely protected private or intimate sphere of the deceased (cf. BVerfG, decision of December 19, 2007 - 1 BvR 1533/07 - NVwZ 2008, 549 para. 15; Federal Administrative Court, judgment of June 29, 2017 - BVerwG 7 C 24/15 - BVerwGE 159, 194 para. 55; decision of December 20, 2016 - BVerwG 20 F 10/15 - juris para. 28; see also Martini, JZ 2012 , 1145 ff.; Spilker, DÖV 2015, 54 ff.), this does not lead to the exclusion of access to information. Because the fact of a positive or negative decision of an application according to § 22 Abs. 1 AbgG does not affect the last inviolable area of private life (cf. BVerfG, decision of April 18, 2018 - 2 BvR 883/17 - juris marginal number 27). The details of the circumstances of the application (damage to health suffered, cause of the damage, (gross) fault on the part of the applicant, type and extent of the impairment of the ability to work, reasonableness of other activities, amount of compensation, etc.) are not disclosed by the information.

c) Section 26 sentence 1 AbgG does not preclude access to information. Accordingly, the pension provisions applicable to federal civil servants are to be applied mutatis mutandis, unless otherwise provided in the Members of the Bundestag Act. Irrespective of the scope of this reference, the defendant has neither named a duty of secrecy under supply law - which may conflict with access to information according to § 3 No. 4 IFG - nor is such a duty evident.

II. The plaintiff is entitled to the application I.2. Desired information on services according to § 22 Abs. 2 AbgG. Insofar as the claim relates to persons who had died at the time of the last oral hearing, this follows from what has been said above. Insofar as living persons are affected, the protection of personal data (§ 5 IFG) does not conflict. The possibility of identification is de facto negligible to the conviction of the court (§ 108 Para. 1 Sentence 1 VwGO). Because in contrast to the applicants for services under Section 22 (1) AbgG (Application I.1.), the group of possible applicants for Section 22 (2) AbgG is larger, can only be determined with considerable effort and is available at the time the damage to health not in the public eye. Overall, this means that identification of the individual applicants cannot reasonably be expected.

Pursuant to Section 22 (2) AbgG, a former member of the Bundestag who, regardless of age, meets the requirements for membership under Section 19, receives old-age allowance, the amount of which is based on Section 20, if he or she suffers damage to health within the meaning of Section 1. The group of possible applicants includes all former members of parliament who left the Bundestag before March 16, 2020 and did not die before January 1, 2000. In the case of applications pursuant to Section 22 (2) AbgG, persons who have reached the age limit under Section 19 AbgG (as amended) at the time of their departure and who have not been a member of the Bundestag for the relevant minimum period must also be deducted.

According to the defendant, 2,186 people left the Bundestag before January 1, 2021, without having died before January 1, 2000. The total number of potential applicants for the years 2000 to 2020 - taking into account the age limit and the minimum length of stay - is 794 people (from this the MPs who left between March 17, 2020 and December 31, 2020 and who are not covered by the application must be deducted are). Based on this period, between 53 and 297 people are eligible for benefits under Section 22 (2) AbgG each year.

This group of people can only be determined with considerable effort. The identification of the potential applicants is in principle possible according to the unsubstantiated submissions of the defendant with the publicly accessible information. However, the necessary investigations are associated with considerable effort. The defendant submitted that the investigation took a total of around eight working days (two working days for an IT employee and three working days for two clerks, who also carried out other activities on the days in question).

It has not been explained in a comprehensible manner that it is possible to further narrow down this group of people - who are abstractly eligible for benefits under Section 22 (2) AbgG - and identify the specific applicants. This is because the persons concerned are no longer (necessarily) in the public eye at the time of the application pursuant to Section 22 (2) AbgG. In contrast to the benefits under Section 22 (1) AbgG, there is no temporal or causal connection between the end of your mandate and the occurrence of the damage to health in Section 22 (2) AbgG. The assumption of the defendant that the further career of deputies who have left the Bundestag is well documented and enables a further narrowing down of the group of persons is not verifiable for the court. Individual inquiries to former Members of Parliament and their relatives are associated with additional considerable effort and uncertain chances of success. The defendant alleged publicly documented indications of health problems or a withdrawal from professional positions and/or the public, without explaining this in more detail.

III. The plaintiff is also entitled to information on how many cases there were between January 1, 2006 and March 16, 2020 in which benefits were paid out in accordance with Section 22 AbgG without the requirements of paragraph 1 or paragraph 2 being met (application I.3.). This request is sufficiently specific. After the discussion in the oral hearing, he refers to all the information contained in the files about payments made unlawfully according to § 22 AbgG (e.g. claims for reimbursement and - considered possible by the plaintiff - notes that payments are to be made despite the non-existence of the legal requirements). . The defendant has the information as to whether and in how many cases benefits were wrongly paid in the opinion of the Bundestag administration. There are no grounds for exclusion. In particular, there is a lack of identifiability because the information is limited to naming the total number of cases and does not differentiate between services under Section 22 (1) and (2) AbgG.

IV. The plaintiff is not entitled to submit an affidavit (Application II.). There is no legal basis for such a claim.

V. The plaintiff is entitled to inspect the files relating to the applications for compensation pursuant to Section 22 AbgG (Application III.) decided between January 1, 2000 and March 16, 2020, insofar as the persons concerned at the time of the last oral trial have died (see 1.). Insofar as living persons are affected, § 5 IFG precludes the claim (2.).

1. Postmortem personal rights are not violated by the inspection of files. There is no question of degrading treatment or gross distortion of the picture of life. The defendant has also not shown that the files contain information that can be assigned to the inviolable core area of privacy.

The names, addresses, account and tax numbers contained in the files as well as information on benefits paid do not relate to the inviolable core area. The information related to the disease (reports, individual presentations by those affected, references to the course of the disease, etc.) cannot be assigned to this area either on the basis of the defendant's submissions. The lecture that this is "highly sensitive" data is too sweeping. Because even health-related data cannot easily be assigned to the inviolable core area of private life (BVerwG, judgment of May 12, 2021 - BVerwG 6 C 12/19 - juris para. 72 ff.). This is what the Federal Constitutional Court has done, for example, with regard to the information contained in patient files from a doctor about anamnesis, diagnosis and therapeutic measures (BVerfG, decisions of March 8, 1972 - 2 BvR 28/71 - BVerfGE 32, 373, 379 f. and of June 6, 2006 - 2 BvR 1349/05 - juris para. 32) and the notes of a drug counselor on conversations, tests, therapeutic measures and the own written statements of the person seeking advice (BVerfG, decision of May 24, 1977 - 2 BvR 988/75 - BVerfGE 44, 353, 372 f.) decided. Even information about very personal matters, ways of thinking and behavior that allow conclusions to be drawn about the mental state and character are not necessarily to be assigned to the core relevant to human dignity (BVerfG, decision of 20 May 2003 - 1 BvR 2222/01 - FamRZ 2004, 523, 523).

Personal data of third parties does not preclude the inspection of the files, as the plaintiff has waived the disclosure of names, dates of birth, titles, academic degrees, job and function titles, addresses and telecommunications numbers. It is not stated that the files contain further personal data of third parties.

2. Insofar as the application relates to living persons, the protection of personal data precludes inspection of the files. The documents in question contain, in their entirety, personal data of the persons concerned, which according to § 5 paragraph 1 sentence 2 and paragraph 2 IFG preclude the requested file inspection. The redacting of names, dates of birth, titles, academic degrees, job and function titles, addresses and telecommunications numbers, as well as data relating to the physical or mental health of a natural person, including the provision of health care, does not mean that the person concerned can no longer be identified. Because the defendant has explained in a plausible and comprehensible manner that the files contain a large amount of information that allows conclusions to be drawn about the person concerned (e.g. day of joining or leaving the Bundestag, length of membership, number of the electoral term, certificates of earnings and settlement notifications from other authorities about activities there, etc.) and partial redactions are practically impossible to carry out.

The decision on costs is based on Section 155 (1) sentence 1 VwGO. The decision on the provisional enforceability follows from § 167 paragraph 1 sentence 1, paragraph 2 VwGO in conjunction with § 708 No. 11, § 709 sentences 1 and 2, § 711 ZPO.

DECISION

The value of the disputed item is determined in accordance with §§ 39 et seq., 52 f. of the Court Costs Act

5,000.00 euros

fixed.