RvS - 201905709/1/A3

RvS - 201905709/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15 GDPR
Decided:	28.10.2020
Published:	28.10.2020
Parties:
National Case Number/Name:	201905709/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2020:2559
Appeal from:	District Court of The Hague Cases nos. 19/1962 and 19/1961
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Dutch Minister for Legal Protection has failed to provide sufficient reasoning that the provision of documents containing information about the appelant to her former partner is in accordance with Article 15 GDPR.

English Summary

Facts

In a domestic violence and child abuse case, the Minister for Legal Protection granted the father’s request to obtain a copy of the correspondence between the mother and the Council for the Protection of Childhood. Since there were several data subjects, the Minister asked the mother, in accordance with Article 4 GDPR, whether she objected to the inspection and surrender of the data and weighed up the interests involved. The mother objected, but the Minister for Legal Protection decided however that the father had the right to inspect or obtain a copy of the files, as the information contained in the files were already largely known to the father.

The District Court of The Hague dismissed the mother’s appeal against that decision, considering that the father, having authority over the children, was entitled under Article 15(1) GDPR to inspect the files. In the opinion of the Court, it did not appear that the provision of the documents to the father would adversely affect the rights and freedoms of the mother.

Holding

The mother’s appeal to the Council of State was declared well-founded.

According to the Administrative Jurisdiction Division of the Council of State,

• Article 15(1) GDPR only gives a data subject the right to obtain information about the personal data concerning him/her, and therefore does not provide a basis for providing personal data to third parties.
• Article 15(4) and recital 63 GDPR indicate that the right to obtain a copy must be without prejudice to the rights and freedoms of others.

The files covered by the request include documents in which only personal data of the mother are included as well as documents containing both personal data of the mother and the father.

As far as his own personal data are concerned, the father can be regarded as a data subject as referred to in Article 15(1) GDPR. But with regard to the mother’s personal data, the mother is the “data subject”. The personal data of the mother cannot therefore be provided to the father on the basis of Article 15 GDPR. To that extent, the decision of the Minister for Legal Protection was taken in breach of Article 15 GDPR, and the Court wrongly failed to recognize it.

The Minister’s view that there is “no undue serious infringement”' of the mother’s rights and freedoms is too light, since Article 15(4) GDPR requires in this case that her rights and freedoms are not infringed.

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English Machine Translation of the Decision

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

Ruling
201905709/1/A3.

Date of judgment: 28 October 2020

SECTION

ADMINISTRATIVE LAW

Judgment on the appeal of:

[appellant],

appellante,

against the judgment of the Interim Injunction Judge of the District Court of The Hague (the District Court) of 26 July 2019 in cases nos. 19/1962 and 19/1961 in the interlocutory proceedings:

[appellant]

and

the Minister for Legal Protection.

Process

By decision of 24 December 2018, the Minister granted [father's] request for a copy of the Council file of the Council for the Protection of Childhood ('the Council') on [name of son], [father's] son and [appellant].

By decision of 12 March 2019, the Minister dismissed [the appellant's] objection to that request as unfounded.

By decision of 26 July 2019, the Court dismissed [the appellant's] appeal against that decision as unfounded and dismissed its application for an interim injunction. That judgment is attached.

The appellant lodged an appeal against that judgment.

The Minister made a written submission.

The [appellant] has granted the consent referred to in Section 8:29(5) of the General Administrative Law Act (hereinafter: Awb).

The Division heard the case at its hearing on 13 July 2020, where [the appellant], assisted by P.C. la Croix Kaiser, of the The Hague Bar, and the Minister, represented by N.N. Bontje, of the Hague Bar, and I.A. Galama, appeared.

Recitals

Introduction

1.    [appellante] and [father] had a relationship in 2010 and from this relationship a son was born on 26 July 2012: [name of son]. The relationship ended in 2013. Many conflicts have arisen between the two parents, among others about [son]. By e-mail dated 31 October 2018, [appellant] asked the Council for a copy of the council files of [son] and of her daughter [name daughter], born on 9 January 2014. [father] has informed the Council, by e-mail dated 8 November 2018, upon request, that it agrees to allow [appellant] access to its correspondence with the Council, provided that it may also read her e-mail messages. To this end, he asked the Council to consult the Council's file.

    The Minister qualified [father's] request as a request under Article 15 of Regulation 2016/679 of the European Parliament and of the Council of the European Union of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (the General Data Protection Regulation, hereinafter: AVG). Since there are several data subjects, the Minister asked [the appellant], in accordance with Article 4 of the AVG, whether she objected to the inspection and surrender of the data and weighed up the interests involved. [appellant] has not agreed to provide a copy of the council file. However, the Minister has decided that [father] has the right to inspect or a copy of the council file. In doing so he considered it important that the information in the file is already largely known to [father]. According to the Minister, access to information which [father] has not yet received is not so difficult for [the appellant] that it should be waived. The views of both parties on the conflicting relationship have already been described in detail in the various council investigations and procedural documents. Moreover, the Minister is not aware that [son] and [daughter] were born out of rape, so this too is no reason not to have the file reviewed or provided. The Minister declared [appellant's] objection unfounded and upheld the decision to allow inspection/issue.

Ruling attacked

2.    The Court dismissed [the appellant's] appeal as unfounded. To this end, it considered that [father], as the authoritative father of [name of son], is entitled under Article 15(1) of the AVG to inspect the e-mails and the contact journal. According to the Court, it did not appear that the Minister did not give sufficient weight to [appellant's] objections. Nor has it appeared that the Minister failed to take sufficient account of the rights protected by the treaties and the European directive invoked by [the appellant]. The Minister found no evidence of domestic violence or child abuse by [father]. The argument of [appellant] that the Minister did not examine the situation properly does not lead to a different assessment. The documents do not contain any confidential information from her or about her. In the opinion of the Court, it did not appear that the provision of the documents to [father] adversely affected the rights and freedoms of [the appellant]. In view of this, the Minister has complied correctly with [father's] request.

Appeals

3.    [appellant] cannot agree with the court's decision. She claims that the authority over [son] has been conferred on [father] in breach of international, European and Union law on the prevention of violence against women and domestic violence. In her view, the Netherlands case-law on family law fails to safeguard the rights to which she is entitled as a citizen of the European Union. The appellant points out that, as a citizen of the Union, she is entitled to adequate application of European Union law and to adequate legal protection. The mere fact that the father has authority does not give [father] sufficient necessity and therefore insufficient justification for her correspondence with the Council. Organisations such as the Council and the Minister have a legal duty to prevent discrimination and violence. By providing [father] with data about her, the Minister tolerates gender-based violence and therefore discrimination. Furthermore, according to [appellant] it cannot be the case that persons are entitled to the private data of a third party on the basis of Article 15 of the AVG if that third party does not consent to this. The appellant asks the Division to refer questions for a preliminary ruling to the Court of Justice of the European Union ('the Court').

3.1.    In so far as [the appellant] submits that the proceedings concerning custody of [son] infringed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union ('the EU Charter'), the Division considers that it is not competent to give an opinion in those proceedings, which concern only a decision to supply personal data. This argument is therefore left out of consideration.

    In so far as [the appellant] has argued that the AVG infringes the abovementioned Treaties and the EU Charter, the Division considers that that argument is insufficiently substantiated. Nor did [the appellant] specify what questions should be referred for a preliminary ruling. In the light of the judgment of the Court of Justice of 6 October 1982 in Cilfit, ECLI:EU:C:1982:335, paragraph 10, there is therefore no need to ask questions for a preliminary ruling.

3.2.    Article 15 of the AVG (right of access of the person concerned) reads:

1. The data subject has the right to obtain from the controller information as to whether or not personal data relating to him or her are being processed and, if so, to obtain access to those personal data and to the following information:
(a) the purposes of the processing;
(b) the categories of personal data concerned;
(c) the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
(d) if possible, the period for which the personal data are to be stored or, if this is not possible, the criteria for determining it;
(e) that the data subject shall have the right to obtain from the controller the rectification, erasure or restriction of the processing of personal data concerning him or her and the right to object to such processing;
(f) the right of the data subject to lodge a complaint with a supervisory authority;
(g) where the personal data are not collected from the data subject, any available information as to the source of those data;
(h) the existence of automated decision making, including the profiling referred to in Article 22(1) and (4), and, at least in those cases, useful information on the underlying logic and the importance and the likely impact of that processing on the data subject.
2. […].
3. The controller shall provide the data subject with a copy of the personal data being processed. If the data subject requests additional copies, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes his or her request electronically and does not request any other arrangement, the information shall be provided in a common electronic form.
4. The right to obtain a copy referred to in paragraph 3 shall be without prejudice to the rights and freedoms of others.

3.3.    The Division has taken note of the documents submitted under confidentiality. It concerns 63 documents. These include contact lists, which contain information on who and when the Council has been in contact and are accompanied by brief explanatory notes. Most of them concern letter correspondence and e-mails between the Council and [appellant] and between the Council and [father] about agreements and reactions to draft investigation reports.

    The Division considers that [father's] request only concerns the correspondence between [appellant] and the Board. To the extent that the secret correspondence originates from or is addressed to [father], these documents therefore fall outside the scope of the proceedings.

    The Minister explained at the meeting that the Council applies the principle that all information in the Council file may be exchanged between parents, also in view of the proper performance of its task. However, Article 15(1) of the AVG only gives a person concerned the right to obtain information about the personal data concerning him/her. The secret documents covered by the request include documents in which only personal data of [the appellant] are included. Contrary to the opinion of the Minister and the court, Article 15 of the AVG therefore does not provide a basis for providing personal data to third parties. With regard to the personal data of [appellant], [appellant] is in fact the 'person concerned'. The personal data of [the appellant] cannot therefore be provided to [father] on the basis of Article 15 of the AVG. To that extent, the decision of 12 March 2019 was taken in breach of Article 15 of the AVG. The Court wrongly failed to recognise this.

3.4.    The secret documents covered by the request include documents containing both personal data of [appellant] and personal data of [father]. As far as his own personal data are concerned, [father] can be regarded as a data subject as referred to in Article 15, first paragraph, of the AVG.

    Under Article 15(3) of the AVG, the Minister must provide [father] with a copy of the personal data processed concerning him. In asking what is to be understood by 'copy of personal data', account must be taken of the wording of the provision, its genesis, and the context and objectives pursued by the rules of which it forms part (see to that effect judgments of 20 December 2017, Acacia and D'Amato, C-397/16 and C-435/16, EU:C:2017:992, point 31, and 17 April 2018, Egenberger, C-414/16. EU:C:2018:257, point 44, and the case-law cited therein).

    The explanations on the AVG and other EU documents accompanying the drafting of the AVG do not indicate what is meant by 'copy of personal data'. The Minister has decided to provide copies of the documents containing [father's] personal data. This explanation is in line with the context of Article 15, third paragraph, and with the purpose of the chapter of which the provision forms part. Article 15 of the AVG belongs to Chapter III of the AVG, entitled "The rights of the data subject". It is clear from recital 11 in the preamble that the AVG seeks to strengthen these rights. Within those rights, according to recital 63 of the preamble, the data subject should have the right to access the personal data collected about him or her and to exercise that right easily and at reasonable intervals, so that he or she can be informed of the processing operation and check its lawfulness.

    At the same time, Article 15(4) and recital 63 in the preamble to the AVG show that the right to obtain a copy is without prejudice to the rights and freedoms of others. In view of the overall system of Article 15 of the AVG, the Section is of the opinion that the provision of a copy of a document containing personal data is therefore not always necessary.

    Providing a copy of the document in this case means that personal data of [the appellant's] father will be provided. In view of this, the Division interprets [appellant's] argument as an appeal to article 15, fourth paragraph, of the AVG.

3.5.    The Minister has lacquered the address details of [appellant] in the documents, but he has not made the documents anonymous by lacquering her name, for example. The lacquering of such personal data will not be useful either, since [father] has just requested the correspondence from and to [appellant] and he will know whose name has been lacquered. In fact, [father] is concerned with the other information relating to her. Granting the request by means of the provision of the documents means, inter alia, that an e-mail from [the appellant] with her response to a draft investigative report, including her personal account of her contacts with [father], will then be provided to [father] in its entirety as a copy. At the hearing, the Minister was unable to confirm that it would be made clear in advance to the parties involved in an investigation that such personal information provided by the parties could be forwarded on request. It is true that the decision of 12 March 2019 states that most of the information is already known to [father], for example through the final investigation reports, but in the opinion of the Division, neither the secret documents nor the file documents reveal what information [father] already has in the council file. In view of this, it is also impossible to determine which information and data are made available to [father] for the first time. The Minister's test that there is 'no undue serious infringement' of [appellant's] rights and freedoms is too light, since Article 15(4) of the AVG requires in this case that her rights and freedoms are not infringed. In the light of the above, the Minister has failed to provide sufficient reasoning that the provision of [father's] personal data by means of documents containing information about [appellant] is, in this case, in accordance with Article 15(4) of the AVG. It has also remained unclear whether the processing of the personal data, which includes the provision of information, takes place in accordance with Article 6 of the AVG.

    The court did not recognise this either.

3.6.    The argument succeeds.

Conclusion and costs of proceedings

4.    The appeal is well founded. The judgment under appeal should be set aside. In doing what the Court should do, the Division will declare [appellant's] appeal against the Minister's decision of 12 March 2019 well-founded and set aside that decision.

5.    The Minister must take a new decision on the appeal, taking into account what has been considered in this ruling. With a view to an efficient settlement of the dispute the Division sees reason to stipulate, pursuant to Section 8:113(2) of the Awb, that the new decision to be taken on the objection lodged may only be appealed against by the Division.

6.    The Minister must be ordered to pay the costs of the proceedings in a manner to be reported, with the proviso that the costs of the proceedings have not been proven to have been incurred on appeal.

    The Division will only order the Minister to reimburse the court registry for the handling of the appeal, since [the appellant] has not paid the court registry fee because of a successful appeal on the grounds of inability to pay in the appeal proceedings.

Decision

The Administrative Jurisdiction Division of the Council of State:

I. declares the appeal well-founded;

II. sets aside the judgment of the Court of The Hague in preliminary relief proceedings of 26 July 2019 in cases nos. 19/1962 and 19/1961;

III. sets aside the decision of the Minister for Legal Protection of 12 March 2019;

IV. provides that an appeal against the new decision to be taken may only be lodged with the Division;

V. orders the Minister for Legal Protection to reimburse [the appellant] the costs of the proceedings incurred by [the appellant] in connection with the hearing of the appeal up to an amount of €561.61 (in words: five hundred and sixty-one euros and sixty-one cents), of which €525.00 is attributable to legal aid granted by a third party on a professional basis;

VI. orders the Minister for Legal Protection to reimburse to [the appellant] the court fee paid by her in the amount of € 259.00 (in words: two hundred and fifty-nine euros) for the handling of the appeal.

Thus determined by C.H.M. van Altena, President, and B.P. Vermeulen and C.M. Wissels, Members, in the presence of L.E.E. Konings, Registrar.

The chairman is prevented from signing the decision.   

The Registrar is prevented from signing the ruling.

Pronounced in public on 28 October 2020