Rb. Amsterdam - AMS 22/76

Rb. Amsterdam - AMS 22/76
Court:	Rb. Amsterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 9(1) GDPR Article 86 GDPR Directive 2003/4 Article 10 and 11 Dutch Government Information Act (Wob)
Decided:	18.09.2023
Published:	05.12.2023
Parties:	Dutch Minister of Social Affairs and Employment Plaintiff as the recipient
National Case Number/Name:	AMS 22/76
European Case Law Identifier:	ECLI:NL:RBAMS:2023:7115 Uitspraak delen
Appeal from:
Appeal to:	Appealed - Confirmed
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	paula_slf

The Regional Court of Amsterdam ordered the Dutch Ministry of Social Affairs and Employment to reevaluate its withholding of official information since it had not sufficiently justified the nature of the withheld personal data while ensuring compliance with Article 9 GDPR.

English Summary

Facts

The Plaintiff submitted an application for the disclosure of reports on incidents involving biological agents to the controller, the Dutch Ministry of Social Affairs and Employment. On 6 December 2021, the defendant partially upheld the claim but only disclosed some information and withheld parts of the information in the eight documents submitted. In particular certain personal data and environmental information.

The controller withheld data because the personal data concerned data relating to the health of the data subjects, which, in combination with information from other sources, made the data subjects identifiable. The reason for refusal to disclose was founded on Articles 10 and 11 of the Dutch Government Information Act (Wob), which says that information in the hands of Public authorities is generally public, except if it is contrary to overriding interest, in the sense of Article 9(1) GDPR. Health data, in particular, can constitute a particularly serious violation of fundamental rights, such as privacy rights, as Article 9(1) GDPR states.

The controller also conceded that personal data (information on biological agents) was excluded from the disclosure, in line with the European Directive on Public Access to Environmental Information 2003/4/EC. In compliance with the exception of Article 9(2)(g) GDPR. The directive guarantees public access to environmental information held by or for public authorities, both upon request and through active dissemination. This was further implemented in Article 10(4) Wob, which provides for an exemption for the publication of personal data if it concerns "environmental information on emissions into the environment”. However, according to the controller's opinion, biological agents are not emissions, and, therefore, they do not fall under the definition of "environmental information".

The Court held the hearing on the matter on 7 August 2023, and its decision followed on 18 September 2023.

Holding

The Court declared the plaintiff's claim well-founded. Specifically, the Court found that the controller had not sufficiently justified why certain information was withheld, in particular with regard to sensitive personal data and environmental information on emissions.

On the one hand, the Court noted that the controller rightfully withheld the information of Documents 1, 4 and 5 as they would constitute a breach of §10(1)(d) Wob and consequently of Article 9 GDPR. The personal data in the Documents concerned data relating to the health of the data subjects which, in combination with information from other sources, made the data subjects identifiable. On the other hand, with regard to Documents 2, 3, 7 and 8, the Court found that the controller failed to give sufficient reasons as to why the data was sensitive personal data or why the disclosure would affect the privacy of data subjects.

Additionally, the Court stated that the controller did not deliver sufficient reasons as to why no environmental information was provided. Citing Article 10(4) Wob, which provides for an exemption for the publication of personal data if it concerns "environmental information on emissions into the environment", the Court emphasised that the definition is derived from the European Directive on public access to environmental information 2003/4/EC. According to European established case-law, the term has to be defined broadly. Thus, the Court concluded that the biological agents could be defined as emissions and, consequently, be considered environmental information. Hence, the controller did not sufficiently explain whether the withheld information contained environmental information for the exemption to apply.

In conclusion, the Court annulled the contested decision and ordered the controller to rectify the situation within six weeks of this decision, taking into account the Court's findings.

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 Dutch original. Please refer to the Dutch original for more details.

Introduction
1. The defendant has partially granted the plaintiff's request to make data public on the basis of the Public Information Act (Wob) (the primary decision). With the contested decision of December 6, 2021, the defendant declared the plaintiff's objection unfounded.

2. The plaintiff has filed an appeal. The defendant responded to the appeal with a statement of defense.

3. The court heard the appeal at a hearing on August 7, 2023. Participated in this: the plaintiff's representative, the defendant's representative and the expert from the Labor Inspectorate, [expert] brought along by the defendant.

Establishment of the decision
4. With his Wob request1 request, the claimant has requested disclosure of all reports pursuant to Article 4.95 of the Working Conditions Decree about accidents or incidents in which (possibly) biological agents2 of category 33 or 44 have been released and which have contaminated employees with those biological agents. can cause.

5. Defendant has partially made nine documents public. Defendant has omitted disclosure of various information in these documents. According to the defendant, these are special personal data5 or the interest in making the data public does not outweigh the interest in respecting the privacy of those involved. The defendant has pointed out that the Wob mentions these grounds as an exception to disclosure.6 Because in the case of special personal data it concerns data about the health of those involved, the defendant has taken into account that disclosure must be handled with extra care. Even if it does not directly identify a data subject, but does involve data that, in combination with information from other sources, allows the data subject to be traced, this is, according to the defendant, a reason to withhold disclosure.

6. The defendant acknowledges that the aforementioned exceptions to disclosure in the Wob are not applicable in the case of environmental information relating to emissions.7 However, in the defendant's position, none of the notifications concerns environmental information relating to emissions8 within the meaning of the Environmental Management Act (Wm), already because, according to the defendant, biological agents do not fall under the definition of
'environmental information' within the meaning of the Wm.

7. The defendant has asked those involved for their views. One of the data subjects responded and requested that his regular personal data not be made public. According to the defendant, there is no question of explicit consent to disclosure of the data by those involved.

Assessment by the court
8. The court assesses the partial rejection of the plaintiff's Wob request.

9. The fact that the defendant has omitted disclosure of the normal personal data (such as names and dates of birth) of those involved9 is not a subject of discussion for the plaintiff. Because the defendant has only omitted disclosure of ordinary personal data in document 6, the (partial) disclosure of this document is not in dispute. Plaintiff has also not disputed that documents 1, 2, 4, 5, 6 and 7 do not contain any environmental information relating to emissions. The court therefore makes no decision on these points.

10. For the rest, the court will assess the appeal on the basis of the plaintiff's grounds for appeal.

11. The court declares the appeal well-founded. Below, the court explains how it reaches this decision and what consequences this decision has.

Special personal data?
12. According to the plaintiff, not all data that the defendant has not disclosed are special personal data. In the plaintiff's view, this is not about data about the health of those involved and not about data that can be traced back to the individual, natural person. By omitting normal personal data, the data subjects can no longer be traced, according to the claimant. The plaintiff argues that for this reason alone there would be no infringement of the privacy of those involved. According to the claimant, the context in the documents does not make the data subjects identifiable in such a way that disclosure of the information designated as special personal data should not be made public.

The legal framework
13. The premise of the Wob is that information held by the government is in principle public, unless compelling interests as referred to in Articles 10 and 11 of the Wob oppose this.10

14. Article 10, first paragraph, opening words and under d, of the Wob states that the provision of information shall not be provided insofar as this concerns special personal data as referred to in Article 9, first paragraph of the General Data Protection Regulation (GDPR). Data about health (health data), among other things, are referred to as special personal data in Article 9(1) of the GDPR. By their nature, health data can constitute a particularly serious infringement of fundamental rights, such as privacy. Therefore, this data deserves stronger protection.11

15. According to Article 4, opening words and paragraph 15 of the GDPR, health data is 'personal data relating to the physical or mental health of a natural person, including data on health services provided that provide information about his or her state of health'. According to European case law, the concept of special personal data must be interpreted broadly.12

16. Personal data within the meaning of the GDPR further concerns 'all information about an identified or identifiable natural person (the data subject)' and is identifiable as 'a natural person who can be identified directly or indirectly'.13 According to established case law, the context of the information must be taken into account to determine the identifiability of the data subject. 14
General considerations
17. The court examines for each document the question whether that document contains special personal data and whether disclosure infringes the personal privacy of the person(s) involved. Before the court gets to that, the court will consider the following in a more general sense.

18. By partially disclosing the reports requested by the plaintiff, the defendant has partially granted the plaintiff's application. Defendant has made choices in this regard. At the hearing, the defendant explained that the policy is to always make company names public when disclosing documents in response to a Wob request. The court notes that in this case the policy choice to always make company data public has been problematic in the sense that making this data public has in some cases led to the data subject being virtually identifiable, because it concerns small companies and on the basis of the company name in combination with the published data of the report it is relatively easy to determine which employee it could be.15 Insofar as identification of the data subject is not already possible on the basis of the single company data , this choice also means that the publication of other, more substantive information about the occurrence or incident has become problematic, because in those cases the combination of the other data with the company data would make the data subject identifiable in any case. This is also important in this case, because the plaintiff explained at the hearing that he is not concerned with information about where and when the incident took place, but that he would have liked to have insight into what happened. However, the court will take this fait accompli into account below in the further assessment per document. The court takes into account that it would also have been up to the plaintiff to clearly indicate in his application that he was concerned with the content of the reports and not with the number of reports or where the reports took place. The court considers that the policy choice of the defendant - which is otherwise not recorded in writing - does not affect the fact that the defendant will in all cases have to consider whether disclosure of the company name infringes on the personal privacy of those involved.16 In any case, this assessment must be made taking into account the specific context of place, time and number of people involved and the question whether the omitted data in connection with the information that has been made public leads to the identification of persons without disproportionate effort.17

The judgment of the court
19. In application of Article 8:29, fifth paragraph, of the General Administrative Law Act18, the court took note of the documents submitted confidentially by the defendant. The court has formed an opinion on the question whether the omitted information contains special personal data. In the court's opinion, the defendant was right to omit disclosure of the information in documents 1, 4 and 5. With regard to documents 7 and 8, the court is of the opinion that the defendant was partly correct in omitting disclosure. Furthermore, the court is of the opinion that the defendant should not have simply withheld all omitted information in documents 2 and 3. For documents 2, 3, 7 and 8, the defendant has not sufficiently substantiated why omitted information concerns special personal data or why disclosure would infringe the privacy of those involved. In all documents, the court is of the opinion that disclosure of the rightly omitted information infringes the personal privacy of the person(s) involved.

20. With regard to documents 1, 4 and 5, the court can, as stated above, agree with the defendant in the position that further disclosure is not possible, because the omitted information would make the person(s) involved identifiable upon disclosure. the mention of the company name and location, as well as the specific time and place, in combination with the omitted personal data, can lead to the identification of the data subject(s) without disproportionate effort.

21. With regard to documents 7 and 8, the court largely follows the defendant in the position that disclosure of the omitted information makes the person(s) involved identifiable. Disclosure would infringe on the personal privacy of the person(s) involved, so that, in the court's opinion, the defendant rightly failed to do so. In the opinion of the court, an exception to this is in document 7 of the suspected incident during the work of the person concerned. In the court's opinion, document 8 is an exception to this: the subject of the telephone conversation on December 17, 2019 on page 1, the question of when to report on page 2, and the explanation in the table on page 2. The court is is of the opinion that the defendant has not sufficiently substantiated why this data concerns special personal data or why disclosure would infringe the privacy of those involved.

22. With regard to documents 2 and 3, the court is of the opinion that the defendant has not sufficiently substantiated why the information omitted here contains special personal data and disclosure thereof would infringe the personal privacy of the person(s) involved. Particularly in view of the fact that this concerns larger organizations, and therefore also a larger circle of data subjects, the court does not automatically see that this concerns special personal data, which may or may not identify or identify the individual data subject(s). identifiable and whether disclosure of the data infringes the privacy of the data subjects.

Consent from those involved?
23. The plaintiff is furthermore of the opinion that the defendant should have explicitly asked the data subjects for permission to disclose the personal data in the requests for views. The plaintiff also argues that the failure of most people involved to respond should be seen as consent to disclosure. The objection of one of the data subjects to the publication of their normal personal data must also be regarded as consent to the disclosure of the special personal data.
23. The court does not follow the plaintiff's position. Insofar as the plaintiff relies on express consent, as included in Article 9(2)(a) of the GDPR, the court notes that this concerns the processing of personal data for a specific purpose and not the disclosure of personal data. To the extent that this article concerns disclosure of personal data, it states that explicit consent is required. In the court's opinion, failure to respond to a request for views does not constitute such explicit consent. Furthermore, the consent given by those involved must be explicit on the basis of Article 10, third paragraph, of the Wob, as established case law shows.19 The court in this case has not found that there was express consent by those involved, which is why the lack of a response, as mentioned, is insufficient. Moreover, the explicit consent of the data subjects on this ground can only cover the disclosure of ordinary personal data and not of special personal data.
25. The defendant has therefore rightly refrained from disclosing the special personal data on this ground.

Environmental information regarding emissions?
The legal framework
26. Pursuant to Article 10, paragraph 4, of the Wob, an exception to the disclosure of special personal data20 applies if there is 'environmental information that relates to emissions in the environment'.

27. Article 19.1a of the Wm includes a definition of 'environmental information'. To the extent relevant here, this article states that environmental information includes all information contained in documents about - among other things - the status of elements of the environment,21 about factors that affect or are likely to affect the elements of the environment22 and about the status of human health and safety, insofar as this is or may be affected by the condition of elements of the environment or is or may be affected via the elements by the factors.23 An 'emission' is further defined in Article 1.1 of the Wm defined as 'substances, vibrations, heat, or sound that are introduced directly or indirectly from a source into the air, water or soil'.

28. The definition of the concept of environmental information is taken from the European directive on public access to environmental information.24 According to established (European) case law, the concept of environmental information must be interpreted broadly.25

Position of the parties
29. In the grounds and the defense, the discussion between the parties focused exclusively on the question of whether the documents contained environmental information. At the hearing, the above legal framework was presented to the parties and the parties reconsidered their positions.

30. In the defendant's opinion, there is no environmental information and therefore there can be no environmental information relating to an emission. Moreover, according to the defendant, an emission requires that a change takes place in the environment and that is not the case in the reports, so that for that reason one cannot speak of "environmental information that relates to emissions in the environment." ” as referred to in Article 10, fourth paragraph, of the Wob.

31. In the plaintiff's opinion, this is indeed the case in documents 3 and 8
environmental information relating to an emission. According to the plaintiff, the information in the reports about incidents or occurrences involving biological agents falls under the Wm definition of environmental information, because it is information about human health and safety. In addition, the information concerns factors, such as waste, that can affect the condition of elements of the environment, according to the plaintiff. Because this concerns environmental information, Article 10, paragraph 4, of the Wob applies and it is not clear why the omitted information is not made public on this basis.

The judgment of the court
32. The court is of the opinion that the defendant has not provided sufficient reasons as to why there is no environmental information in the documents.

33. In the contested decision, the defendant only refers to an earlier ruling of this court on the claimant's appeal that it was not filed in time.26 This single reference is in the opinion of the court, in support of the statement that biological agents do not fall under environmental information. However, this is insufficient to justify her statement, especially now that this ruling has now lapsed with the declaration that the plaintiff's opposition to it is well-founded. The court follows the judgment of the opposition judge that it cannot simply be assumed that - as was considered in the previous ruling - the requested information of biological agents of category 3 or 4 does not fall under the definition of the Wm. that the reports for which disclosure has been requested in this case may indeed contain environmental information and that whether this is the case depends on the content of the report in question.27

34. At the hearing, the question of exactly what information should be understood as environmental information was discussed in more detail. The defendant's expert explained that there would have to be a change in the status of biodiversity in order to be able to speak of environmental information. However, this explanation is at odds with case law on this point.28 Based on this case law, to assess whether there is environmental information, it is only important whether biological agents were present at any time. It has also been held in case law that a virus (as the defendant has explained, one of the different types of biological agents within the meaning of the Working Conditions Decree) is a factor that affects or is likely to affect the elements of the environment (as referred to in Article 19.1a, first paragraph , opening words and under b of the Wm).29

35. The conclusion is that, in the court's opinion, the defendant has not sufficiently substantiated that and why there is no mention of
environmental information. Whether biological agents are involved in the specific reports about incidents and accidents and how this should or should not be regarded as environmental information requires further justification, which is currently lacking.

36. It should be noted that only environmental information relating to an emission sets aside the exception to disclosure for special personal data30. This was not addressed in the contested decision. At the hearing, the defendant's expert explained on this point that biological agents are not substances and therefore there can be no question of an emission. According to the court, this explanation is also at odds with the aforementioned case law. According to the court, the information in public sources, including sources from the Dutch Labor Inspectorate and the European Agency for Safety and Health at Work, also seems to indicate that biological agents can be a substance and that biological agents can spread when released. via, for example, the air.31 Against this background, the court cannot conclude without further explanation that biological agents cannot be a substance within the meaning of the Wm and their spread could not cause an emission as referred to in the Wm.

37. The court is therefore of the opinion that the defendant has also not sufficiently substantiated that and why there is no environmental information relating to an emission in reports 3 and 8. This ground of appeal also succeeds.

Conclusion and consequences
38. In view of the foregoing, the appeal is well-founded. This means that the plaintiff is right. The court annuls the contested decision. The court sees no reason to uphold the legal consequences of the contested decision or to provide for the case itself. The defendant must make a new decision taking into account what has been considered in this ruling. The court gives the defendant a period of six weeks for this.

39. Because the appeal is well-founded, the defendant must reimburse the plaintiff for the court fees and the plaintiff will also receive compensation for his legal costs. Defendant must pay this compensation. The court determines the legal costs on the basis of the Administrative Law Costs Decree for professional legal assistance provided by a third party at € 1,674 (1 point for submitting the notice of appeal and 1 point for appearing at the hearing, with a value per point of €837 and a weighting factor of 1).

Decision
The court:
- declares the appeal well-founded;
- annuls the decision of December 6, 2021, insofar as it concerns the aforementioned passages in documents 2, 3, 7 and 8 (with regard to which the defendant has not sufficiently substantiated why omitted information concerns special personal data or why there would be an infringement on the personal privacy of those involved in disclosure) and the passages in documents 3 and 8 (with regard to which the defendant has not sufficiently substantiated why they do not contain environmental information relating to an emission);
- instructs the defendant to make a new decision on the objection within six weeks after the date of dispatch of this ruling, taking this ruling into account;
- determines that the defendant must reimburse the plaintiff for the court fee of € 184;
- orders the defendant to pay the plaintiff €1,674 in legal costs.