Rb. Oost-Brabant - 19/1169

Rb. Oost-Brabant - 19/1169
Court:	Rb. Oost-Brabant (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(e) GDPR Article 17(3) GDPR Article 82 GDPR
Decided:	28.4.2020
Published:	26.5.2020
Parties:	Municipality of Helmond
National Case Number:	19/1169
European Case Law Identifier:	ECLI:NL:RBOBR:2020:2437
Appeal from:	n/a
Language:	Dutch
Original Source:	de Rechtspraak (in NL)

The Court of First Instance of Eastern Brabant in the Netherlands (Rb. Oost-Brabant) ruled against claimant’s request to erase his personal data from all systems of the municipality of Helmond. The Court also found that the claimant was not entitled to compensation from the municipality because his personal data was processed in accordance with the GDPR and the local administrative law.

English Summary

Facts

On 5 October 2018 the executive board refused to erase personal data of the claimant processed by the municipality of Helmond and refused to compensate damages to the claimant. On 8 March 2020 the board declared the claimant’s objection unfounded. The claimant has launched an appeal against this decision.

Dispute

The Court had to decide whether the board’s rejection of 8 March 2020 was in line with the administrative law and rule on the GDPR-based right of erasure and right to compensation requests.

Holding

The Court found that the request to erase personal data of the claimant was invalid because this processing had been carried out in line with Article 6(1)(e) of the GDPR and couldn’t have been done in a less intrusive way. Therefore, the processing was not unlawful. So, on this point, the Court has upheld the previous decision of the board.

The Court rejected the claim for compensation because his personal data was processed in accordance with the GDPR and local administrative law.

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English Machine Translation of the Decision

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

Authority
    Court of East Brabant
Date of pronunciation
    28-04-2020
Date of publication
    26-05-2020 
Case number
    19/1169
Jurisdictions
    Administrative law
Special features
    First instance - multiple
Content indication

    AVG. Processing personal data. VNG Forum
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling
EASTERN BRABANT COURT

Seat 's-Hertogenbosch

Administrative law

Case number: SHE 19/1169
judgment of the multiple chamber of 28 April 2020 in the case between
[plaintiff] , in [residence] , plaintiff

(Agent: N.G.A. Voorbach),

and
the College of Mayor and Aldermen of the Municipality of Helmond, the College

(Agents: P. Helmus and E. Steijn).
Proceedings

By decision of 5 October 2018 (the primary decision), the Municipal Executive refused to delete personal data of the claimant processed by the Municipality of Helmond and refused to award damages to the claimant.

By decision on objection of 8 March 2019 (the contested decision), the Municipal Executive declared the claimant's objection unfounded.

The claimant lodged an appeal against the contested decision.

The Board has submitted a statement of defence.

The case was heard at the hearing on 4 March 2020. The plaintiff attended the hearing, assisted by his agent. The College was represented by his agents.

Following closure of the investigation, two letters from the claimant were received with the dates 4 March 2020 and 12 April 2020.
Recitals

The claimant's request

1. In a letter dated 29 August 2018, the claimant requested the Municipal Executive, with reference to Article 17(1) of the General Data Protection Regulation (AVG), to remove all of his personal data from all systems in the municipality. In doing so, the claimant stated that the Municipal Executive had published his personal data on the VNG online forum (hereinafter referred to as the VNG Forum) and/or had forwarded them to other administrative bodies by e-mail.

In addition, with reference to article 82 of the AVG, he has requested compensation of €1,000 if it appears that the Municipal Executive has indeed put his personal data online on the VNG Forum and/or forwarded them to other administrative bodies.

The decision making by the Municipal Executive

2. In the primary decision, the Board informed the claimant that the Board did not delete his personal data because those data had been processed lawfully, as the Board had previously explained at the claimant's request by decision of 4 December 2017. The Municipal Executive also disputed that it had posted data about the claimant online, on the VNG Forum, or e-mailed his data to other administrative bodies. According to the Municipal Executive, there is no question of unlawful data processing, so that the plaintiff cannot claim damages either.

3. In the contested decision, the Municipal Executive maintained the primary decision. It is true that in 2013 the Municipality of Helmond shared personal data with the Municipality of Almere, but that processing was not unlawful. In 2013, the plaintiff had not only submitted a Wob application to the municipality of Helmond, but also to a number of other municipalities, including the municipality of Almere. In processing that request, the municipality of Almere wanted to investigate whether there might have been an abuse of rights, whether the submission of the Wob application was exclusively or mainly related to the collection of procedural cost orders and/or penalty payments. In connection with this investigation, the Municipality of Helmond confirmed to the Municipality of Almere that the plaintiff had submitted a similar Wob application to the Municipality of Helmond. This did not provide more information than was necessary for the municipality of Almere to carry out its public task. The provision of that information was therefore not unlawful, according to the Municipal Executive.

(The scope of) the appeal and the assessment
4.1

The plaintiff is of the opinion that the contested decision, contrary to Article 7:12(1) of the General Administrative Law Act (Awb), is not properly reasoned, because it would not be clear what the basis of the rejection of the application is. In the primary decision reference was made to Article 17(3) of the AVG and in the contested decision to Article 4:6 of the Awb. At the hearing, the Municipal Executive indicated, if so requested, that Article 4:6 of the General Administrative Law Act was the basis for the contested decision.
4.2

The District Court agrees with the claimant that the presentation by the Municipal Executive of the articles in the various parts of the decision could have been better. The Municipal Executive itself acknowledged this. Nevertheless, it is clear - all things considered - what the Municipal Executive wanted to decide: rejection because of a repeated request with regard to the inspection and a declaration of unfounded content with regard to the request for removal and enforcement of the rejection of 5 October 2018 of the application for damages. The District Court sees no reason to attach consequences to the (slight) lack of clarity in the representation of this division. The ground for appeal is unsuccessful.

5. The District Court finds that the plaintiffs' request under 1. does not contain a request for inspection. Plaintiffs' representative has argued that this should be read. The Court does not agree. The extent of the proceedings may not depend on the benevolence of the reader.

In case of doubt about how he should formulate his request, the plaintiff could have engaged an authorised representative, as he did from the objection phase onwards. The court will therefore only focus on the request for removal and the request for damages after this.

Request for removal
6.1

First of all, the plaintiff argued that the Municipal Executive should not have applied Article 4:6 of the General Administrative Law Act with reference to the decision of 4 December 2017 referred to under 2, because there was no question of a repeated application. The District Court established that by means of the latter decision a decision was given on a request for inspection by the claimant, which is different from requests for removal and compensation as is the case in these proceedings. The ground of appeal has an objective. The District Court will therefore annul the contested decision in respect of this part of the decision and, doing what the Municipal Executive should have done, on the basis of the objections raised, reconsider the primary decision.
6.2

The plaintiff is of the opinion that the sharing of his personal data with the Municipality of Almere was unlawful. There is no clear legal basis and the naming of the plaintiff's last name could have been omitted.
6.3

The District Court considers as follows. Pursuant to the Government Information (Public Access) Act (Wet openbaarheid van bestuur (Wob)), a request may be submitted to the Municipal Executive for the publication and provision of information about an administrative matter. The implementation of the Wob is a public-law duty of the Board (and other boards). In this case, the purpose of mentioning the name of the claimant in an e-mail sent to another municipality at the request of another municipality was to ensure proper implementation of the Wob and to prevent the Wob from being misused to collect penalty payments in the event that a decision on a request is not taken on time. This purpose is in accordance with Article 8(e) of the Wbp and Article 6(1)(e) of the AVG. The purpose of the processing was proportional to the invasion of the privacy of the claimant and could not be achieved by less intrusive means. The District Court is therefore of the opinion that in this case the processing of the personal data of the claimant is not unlawful.
6.4

It follows from this that the legal consequences of the contested decision, in so far as this relates to the decision on the request for removal, can be maintained.

Compensation
7.1

In his request referred to under 1, the plaintiff has requested compensation of € 1,000.00 on the basis of article 82 of the AVG. By means of the contested decision, the Municipal Executive has upheld this request, which was upheld in objection, and declared it unfounded. On appeal, the claimant claimed damages of € 5,000.
7.2

It follows from Article 8:4, first paragraph, opening words and under f, read in conjunction with Article 7:1, first paragraph, of the General Administrative Law Act (Awb) that no objection can be made against a decision regarding compensation for loss on account of unlawful management actions. The Municipal Executive should have declared the objection inadmissible in view of Article 7:11, first paragraph, of the General Administrative Law Act. The court annulled the contested decision in so far as it related to this.

The District Court sees reason to provide for the case itself and to declare the objection inadmissible in so far as it is directed against the rejection of the application for compensation.
7.3

On 1 April 2020, the Administrative Jurisdiction Division of the Council of State issued four judgments concerning the AVG and Wbp and related applications for damages. In these judgments - in brief - the Administrative Jurisdiction Division ruled that, in its opinion, the Administrative Jurisdiction Division of the Council of State is competent, pursuant to Section 8:88 of the General Administrative Law Act (Awb), to adjudicate an application for compensation for material or immaterial damage resulting from an act in violation of the AVG by an administrative body. The Division derives arguments for this from the AVG and the AVG Implementation Act. For full consideration, the District Court refers to these decisions.1 The District Court will further regard the appeal lodged in so far as it relates to the requested compensation as a request addressed to the District Court to order the Board to pay damages.
7.4

In consideration 6.3 of this judgment, the District Court considered that the processing was not unlawful. This means that the plaintiff cannot claim damages. The District Court therefore rejected the claim for damages.

Request for reopening and submission of preliminary questions
8.1

In his letter of 4 March 2020, the plaintiff mentioned a procedural number of a (then still future) decision of the Division. At the hearing it was discussed that the claimant would still send this information. The District Court took note of this letter and sent a copy to the Board for information.
8.2

With its letter of 12 April 2020, the claimant requested the court to reopen the investigation and to ask preliminary questions about the concept of damages in the GCG.
8.3

The court rejects the request. To this end, it is important that the claimant's request does not contain any (proposed) preliminary questions. The request is not substantiated at all. Furthermore, it is important that at the hearing the concept of damages in the AVG was discussed at length and that the plaintiff expressed his point of view on this. In terms of content, too, the District Court sees no reason to grant the request. There is no reason for compensation in this case. The court refers to its considerations in this judgment under 6 and 7.
8.4

Plaintiff's letter of 12 April 2020 will not be considered, but will be included in the file.2

Conclusion and conclusion

9. The appeal is well founded. The court will order the college to pay the plaintiff's legal costs.

Pursuant to the Decree on Administrative Law Legal Costs (Besluit proceskosten bestuursrecht) the court sets these costs at € 1,050 (1 point for filing the appeal, 1 point for appearing at the hearing with a value per point of € 525). In addition, the claimant has claimed reimbursement of travel and separation expenses. At the hearing, three cases were heard against three different administrative bodies. In two of these cases, the court ruled that the case was well-founded. The District Court therefore divided the travel expenses by two and ordered the Municipal Executive to pay an amount of € 19.02. With regard to lost expenses, the court finds that the plaintiff has not substantiated these costs. This means that, pursuant to Article 2(1)(d) of the Decree on Administrative Law Procedural Costs (Besluit proceskosten bestuursrecht) and the ruling of the Division of 21 March 2012, BV9511 , the District Court will apply the minimum rate of €7. The court will instruct the Municipal Executive to pay €7 in late fees to the plaintiff. The total procedural costs that the Board must pay to the plaintiff therefore amount to € 1,076.02. The Board will also have to repay the court fee to the claimant.
Decision

The court:

    -

    declares the appeal well-founded;
    -

    Annuls the contested decision;
    -

    provides that the legal effects of the contested decision, in so far as they relate to the part of the decision relating to an application for expulsion, are preserved;
    -

    declares the objection inadmissible in so far as it relates to the part of the decision relating to the claim for compensation and states that that decision replaces the annulled contested decision;
    -

    rejects the claim for damages;
    -

    instructs the Municipal Executive to compensate the claimant for the court fee of € 174;
    -

    orders the College to pay the applicant's legal costs up to a total of

€ 1076,02.

This statement was made by M. de Vries, chairman, and A.F. Vink and A.F. Vink.

Mr. F.A.M.C. Habraken-Hermans, members, in the presence of Mr. J.R. Leegsma, registrar. This judgment was rendered on 28 April 2020. As a result of the measures surrounding the coronavirus, this judgment was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this decision will still be pronounced in public.

registrar chairman

Copy sent to parties on:
Legal remedy

An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State against this decision within six weeks of the date on which it was sent.
ANNEX

General Data Protection Regulation (AVG)

Article 6, first paragraph, introductory wording and point (e)

Processing is only lawful if and insofar as at least one of the following conditions is met:

e. the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

Article 17

Article 17(1) of the AVG regulates the cases in which a person concerned has a right to erasure of data ('right to forgetting'). Paragraph 3 sets out the cases in which this right does not exist.

Article 82, paragraph 1

Any person who has suffered material or non-material damage as a result of a breach of this Regulation shall be entitled to receive compensation for the damage suffered from the controller or processor.

General Administrative Law Act (Awb)

Article 4:6

    If following a wholly or partly negative decision, a new application is made, the applicant is obliged to state any new facts or changed circumstances.

    If no new facts or changed circumstances are stated, the administrative authority may, without applying Article 4:5, reject the application with reference to its previous decision rejecting it. 

Article 7:1

    The person to whom the right has been granted to lodge an appeal with an administrative court must lodge an objection before lodging an appeal (...).

    (…)

Article 7:11

    If the objection is admissible, the contested decision shall be reconsidered on that basis.

    (…)

Article 8:4

1. No appeal may be lodged against a decision:

(…)

f. on compensation for damages for unlawful management actions.

(…)

Article 8:88

1. At the request of an interested party, the administrative court has the power to order an administrative body to pay compensation for damage that the interested party has suffered or will suffer as a result:

    an unlawful decision;

    any other unlawful act in preparation of an unlawful decision;

 (…).

(…)

Process-Rules for Administrative Law Courts (Non-Kei cases) 2017

Article 2.16

If documents have been received by the Administrative Court ten days or less before the hearing, the Administrative Court will decide whether these documents will be disregarded. The decision will be made known by the Administrative Court no later than in the decision.

Documents that have been submitted unsolicited after the conclusion of the investigation at the hearing will not be considered. An exception applies to documents that have given rise to the reopening of the investigation. The decision will be made known by the administrative court no later than in the decision.

Documents that are not taken into consideration will remain in the file.