Rb. Overijssel - AK 20 1535

Rb. Overijssel - ak_20_1535
Court:	Rb. Overijssel (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 17(1)(a) GDPR Article 17(3)(b) GDPR Article 82 GDPR Article 82(1) GDPR Article 2.3 of the Youth Act The Archives Act Article 6:106 of the Dutch Civil Code
Decided:	31.05.2021
Published:	08.06.2021
Parties:	The municipal executive of Almelo municipality The Mother of the affected child (anonymized)
National Case Number/Name:	ak_20_1535
European Case Law Identifier:	ECLI:NL:RBOVE:2021:2264
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Court ruling (in Dutch)
Initial Contributor:	Kave Noori

The District Court of Overijssel ordered the Dutch municipality of Amelo to erase a 'youth assistance' file. This was the second occasion in a short time that a lower court ruled that the Dutch Youth Act does not require municipalities to keep files that are no longer needed. The court awarded the child and his mother compensation of €125 each.

Facts

On 18 September 2018, the municipality of Amelo in the Netherlands decided, on the basis of the Youth Act (Jeugdwet), that a boy should be granted youth assistance retroactively for the period from October 2017 to June 2018. The decision was taken without a formal application and without the explicit consent of the legal guardian. The intervention granted was called "Ouderschap blijft" and was to be provided by a municipal contractor. "Ouderschap blijft" is intended to help the child maintain a good relationship with his divorced parents.

GDPR-hub recently reported on a ruling from The District Court of Northern Holland, which also concerned the deletion of records under the Youth Act (Jeugdwet). In that case, the municipality of Langedijk was strongly criticized by the court on how it handled the request for deletion.

In October 2019, the mother who is the legal guardian requested, on behalf of her son, that the municipality delete the youth record and pays damages for the unlawful data collection and that the municipality informs the Dutch Child Protection Board (Rvdk) that the intervention decision was wrongly issued. The municipality fully rejected the request, claiming it was legally obligated to keep the data for at least 20 years. The municipality declared that it was obliged to provide youth assistance under Article 2.3 of the Youth Act and that deletion would violate the Archives Act (Archiefwet) and Article 17(3)(b) GDPR.

The mother objected and the municipality ruled on June 30 2020, that the objection was without merit. The mother appealed and the June 30 2020 decision became the subject of litigation in the court. The mother's legal counsel clarified during the proceedings that the request related to the deletion of the whole dossier and not only the decision of 2018.

Dispute

Should the data be deleted because the original collection was unlawful?

The mother argued that, as the child's legal guardian, she had not expressly consented to the municipality's plans to provide help and to the processing of sensitive personal data. The mother argued that the data collection was therefore unlawful from the outset and should therefore be deleted under Article 17(1)(d) GDPR.

Should the data be deleted because it was no longer needed?

The mother also argued that the data was no longer needed and should therefore be deleted under Article 17(1)(a) GDPR. The municipality, on the other hand, claimed that it was necessary to keep the data in order to comply with its legal obligations under the Youth Act (Jeugdwet).

Should the municipality pay compensation?

The mother also argued that the municipality should pay compensation under Article 82(1) GDPR for the damage caused by the unlawful processing of the child's personal data. The mother considered that €1500 would be adequate compensation for both the child and her for the non-material damage caused.

Holding

Should the data be deleted because the original collection was unlawful?

First, the court looked at how the 2018 decision came about. The court found that there was no record of a request or consent from the mother regarding the municipal intervention and that it was a retroactive decision. At the same time the court noted that the mother did not appeal or contest the decision. The court found that the mother had not timely challenged the decision and that it was no longer subject to judicial review. As the decision to intervene could not be challenged, the court also found that the request to declare the original data collection unlawful under Article 17(1)(d) GDPR was unfounded.

Should the data be deleted because it was no longer needed?

Based on available court documents and testimony during the hearing, the court concluded that the 2018 decision had not resulted in a provision of any specific youth assistance activity for the child. In addition, the court noted that the child had not been provided supervision or intervention under the Youth Act (Jeugdwet) in recent years and that the Child Protection Board (Rvdk) had withdrawn its request for supervision of the child. The legal representative of the municipality also admitted during the proceedings that the child's youth assistance file had been closed. Based on all of this, the court concluded that the municipality had not sufficiently demonstrated that it had an ongoing legal obligation to process the data. The court set aside the municipality's decision of 30 June 2020 and ordered the municipality to issue a new decision in line with the judgement.

Should the municipality pay compensation?

The court found that the child had been personally affected and had lost control of his personal information. The legal basis for the decision on compensation was Article 82 GDPR together with Article 6:106 of Civil Code of the Netherlands. The court clarified that the party seeking compensation must provide concrete information confirming the damage caused.

The court rejected the mother's claim that the municipality's continued resistance to a reasonable request for erasure was sufficient evidence to justify compensation of €1,500. Instead, the court found that the claims for damages were not sufficiently substantiated and that it was appropriate for the municipality to pay the mother and the child €125 in damages each.

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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.

                                
                            
        



    Body
    Court of Overijssel
    Date of judgment
    31-05-2021

    Date of publication
    
08-06-2021

    Case number
    
ak_20_1535

    
    Jurisdictions
    
Administrative law
    
    Special characteristics
    
First instance - single
    
    Content indication
    
Pursuant to Article 17, first paragraph, preamble and under a of the GDPR, the right to erasure of personal data in the youth care file; appeal well founded and award of damages of € 125 to the plaintiff and € 125 to the son.

    Locations
    
Rechtspraak.nl
    
        
        
            Enhanced pronunciation
        





    
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            Statement
        
        
  
    COURT OVERIJSSEL
    
    
      Seating place Zwolle
     
    
    
      Administrative law
     
    
    
      case number: ZWO 20/1535
    
    
      decision of the single chamber in the dispute between
    
      [plaintiff] at [place of residence] , claimant,
    authorized representative: mr. I. Brouwer,
    
    
      and
     
    
    the municipal executive of Almelo, defendant,
    authorized representative: mr. A.V. Abdul.
    
  
  
    Process sequence
    
    
      In the decision of 19 November 2019 (the primary decision), the respondent rejected the claim made by the claimant to destroy the youth care file of her son [name] (hereinafter: [name]). Furthermore, the defendant refused to pay compensation for the unlawful processing of personal data. Finally, the respondent did not grant the claimant's request to inform the Child Protection Board (hereinafter: RvdK) that the decision of September 18, 2018 was wrongly issued.
     
    
    
      In the decision of 30 June 2020 (the contested decision), the respondent declared the objection of the claimant against the primary decision unfounded.
     
    
    
      Plaintiff appealed against the contested decision.
     
    
    
      The hearing in court took place on April 14, 2021. Plaintiff appeared, assisted by her authorized representative. The defendant was represented by its authorized representative and N. Boers.
     
    
    
  
  
    Considerations
    
    
      1. The court assumes the following facts and circumstances.
     
    
    
      1.1.
      On October 14, 2019, the plaintiff's representative submitted a request to the defendant on the basis of Article 17(1) of the General Data Protection Regulation (hereinafter: GDPR). The request extends to:
      
      a. destroying the file relating to the Youth Act decision taken on 18 September 2018 and providing insight into its destruction;
      b. informing the claimant whether the respondent is prepared to compensate the damage resulting from the unlawful processing of personal data on the basis of Article 82 of the GDPR;
      
      c. informing the RvdK that the Youth Act decision of 18 September 2018 was wrongly issued by the defendant.
      
    
    
      1.2.
      In the primary decision, the defendant rejected the request made by the plaintiff, referring to the application of the Archives Act. Defendant has indicated that destruction of [name]'s youth care file is only possible after the statutory retention period has expired. The defendant is of the opinion that there is an exception to the right to erasure as referred to in Article 17, paragraph 3, preamble and sub b, of the GDPR. The defendant has a legal obligation under Article 2.3 of the Youth Act to use youth care. Defendant is of the opinion that on the basis of his statutory duty he was obliged to provide youth care and that on the basis of the council report and the decision of the juvenile court of June 4, 2018, he had sufficient reason to reject the decision of September 18, 2018 for the use of youth care, in the form of “Parenthood remains” with Jarabee. Pursuant to the Youth Act and the Selection List related thereto, the defendant is obliged to keep the personal data of [name] for at least 20 years.
      
    
    
      1.3.
      Plaintiff argues that there is an unlawful processing of special personal data and of a specific interest of the minor [name] in the destruction of personal data as referred to in Article 21(1) of the GDPR. Contrary to what is stated in the Youth Act decision of September 18, 2018, Plaintiff, as legal representative of [name], has not given explicit permission for the support plan, the application for a facility and the processing of (special) personal data. In the alternative, Plaintiff takes the position that Defendant should destroy [name]'s file now that the legal battle has now been settled and neither the juvenile court judge nor the RvdK has deemed a measure under the Youth Act necessary. In the alternative, the claimant is of the opinion that the respondent can make its own assessment.
      
      
        
          Legal framework
        
      
      2. Article 17(1) of the GDPR reads – insofar as relevant here – as follows:
      
      
        The data subject has the right to obtain from the controller without undue delay the erasure of personal data concerning him or her and the controller is obliged to delete personal data without undue delay where one of the following applies:
        a) the personal data are no longer necessary for the purposes for which they were collected or otherwise processed;
        b) …..
        c) the data subject objects to the processing in accordance with Article 21(1) and there are no overriding legitimate grounds for the processing;
        d) the personal data has been unlawfully processed.
       
      
      
        The right to erasure does not exist if one of the exceptions in Article 17(3) of the GDPR applies. This paragraph provides that paragraphs 1 and 2 do not apply if processing is necessary for – insofar as relevant here – the fulfillment of a legal processing obligation under Union or Member State law to which the controllers are subject, or for the fulfillment of a task carried out in the public interest or in the exercise of official authority vested in that controller.
       
      
      
        Article 21 of the GDPR provides that the data subject has the right to object at any time, on grounds relating to his particular situation, to the processing of personal data concerning him or her on the basis of Article 6(1)(e) or (f), including of profiling based on those provisions.
       
      
      
        Article 6(1)(e) and (f) of the GDPR reads as follows:
       
      
      
        The 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 conferred on the controller;
       
      
      
        f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where the interests or fundamental rights and freedoms of the data subject which require the protection of personal data outweigh those interests, in particular when the person concerned is a child.
       
      
      
        Pursuant to the provisions of the last sentence of Article 6(1) of the GDPR, the ground referred to under f does not apply to processing by public authorities in the performance of their duties.
       
      
      
        Finally, Article 82(1) of the GDPR provides that anyone who has suffered material or non-material damage as a result of an infringement of this Regulation has the right to receive compensation from the controller or processor for the damage suffered.
       
      
      
        
          Scope of erasure request
        
      
      3. The plaintiff's representative confirmed at the hearing that the request for erasure of data does not only concern the decision of September 18, 2018, but is aimed at destroying the entire youth care file of [name] as currently held by the defendant.
      
      
        
          Article 17(1), preamble and (d) of the GDPR
        
      
      4. Plaintiff argues on appeal that the defendant unlawfully obtained and processed the personal data of [name] at the time when the decision of September 18, 2018 was taken. Therefore, the personal data of [name] must now be based on Article 17(1). preamble and sub d of the GDPR are deleted.
      
      5. The court considers that in the decision of September 18, 2018, the defendant granted a provision to the parent(s) of [name] on the basis of the Youth Act. On the one hand, the court found no evidence of an application submitted by the claimant nor of the claimant's consent as legal representative of [name] for the provision made. The court also noticed that the provision was granted with retroactive effect, i.e. from October 1, 2017 to June 1, 2018. On the other hand, the court finds that the claimant did not make a deposit at the time and subsequently did not appeal against the decision of 18 September 2018 Since no legal remedies were brought against this decision at the time, the legality of the decision can no longer be called into question.
      
      6. The court is of the opinion that Plaintiff's complaint that the defendant unlawfully obtained and processed the personal data of [name] at the time is ineffective because a decision has now been made that is legally inviolable. Article 17, paragraph 1, preamble and under d, of the GDPR therefore does not give the claimant a right to erasure.
      
      
        
          Article 21 of the GDPR
        
      
      7. On appeal, the plaintiff's representative also argued that there is a specific situation within the meaning of Article 21(1) of the GDPR, on the basis of which the data subject has the possibility to object to the processing of his or her personal data. personal data. At the hearing, Plaintiff's representative stated that it is very important for [name] that his personal data be deleted.
      
      8. The court is of the opinion that the plaintiff's representative has insufficiently substantiated that there would be a specific situation as referred to in Article 21(1) of the GDPR. The appeal made on the aforementioned article is therefore unfounded.
      
      
        
          Article 17, paragraph 1, preamble and under a, and paragraph 3 of the GDPR
        
      
      9. The claimant further argues on appeal that the personal data of [name] must be deleted on the basis of Article 17, paragraph 1, preamble and under a, of the GDPR. After all, according to the claimant, these data are no longer necessary for the purposes for which they were collected or otherwise processed at the time.
      
      10. The defendant, on the other hand, takes the position that the right to erasure enshrined in Article 17(1) and under a of the GDPR does not apply in this case because one of the exceptional situations from the third paragraph of Article 17 of the GDPR occurs. According to the defendant, processing is necessary for the fulfillment of an obligation for the defendant laid down in the Youth Act.
      
      11. On the basis of the case documents and what was discussed at the hearing, the court establishes that the decision of September 18, 2018 has not resulted in concrete youth care activities for [name]. Furthermore, the court finds that the legal proceedings that have been conducted in recent years have not led to any form of supervision for [name] or any measure under the Youth Act.
      
      12. The court is of the opinion that the defendant has insufficiently substantiated why there is currently still a processing obligation based on Article 7.4.0 of the Youth Act. In this regard, the court refers, among other things, to its decision of 2 March 2020 in which the request for supervision order was withdrawn by the RvdK. Because it later transpired that youth care was not necessary, and the defendant's representative stated at the hearing that [name]'s file is currently closed, the court considers that there is no longer any legal obligation to process. Now that the processing no longer has a purpose, there is no longer a legal obligation to process.
      
      
        
          Retention period
        
      
      13. Because [name] is entitled to erasure of his personal data pursuant to Article 17, first paragraph, preamble and under a, of the GDPR, the court may decide whether or not a retention period of 20 years applies under the Youth Act. , leave out of discussion.
      
      
        
          Conclusion on right to erasure
        
      
      14. The appeal is well-founded insofar as it relates to the right to erasure.
      
      
        
          Compensation
        
      
      15. In the opinion of the court, as a result of the contested decision, which is unlawful in nature, [name] has been affected personally by loss of control over his personal data. It concerns an infringement of a personality right. This means that pursuant to Article 82 of the GDPR in conjunction with Article 6:106 of the Dutch Civil Code, the claimant is entitled to compensation to be determined in fairness.
      
      16. The basic principle is that the claimant must substantiate the damage alleged by her with concrete information. In view of the circumstances of the case and the defendant's long-standing opposition to a reasonable request to destroy the Youth Act file of [name], the plaintiff's representative argued in the supplementary appeal of 9 September 2020 that he considered it fair that both for [name] if an amount of € 1,500 is awarded for his legal representative due to immaterial damage.
      
      17. The court does not follow the plaintiff's representative in this regard because of the lack of concrete information. The court considers compensation of € 125 for the claimant and the same amount of compensation for [name] reasonable and will order the defendant to do so.
      
      18. The court also orders the defendant to pay the costs incurred by the plaintiff. The legal costs are calculated in accordance with the Administrative Costs Decree. The court sets these costs at € 1,068 (1 point for submitting the notice of appeal and 1 point for appearing at the hearing, with a value of € 534 per point and a weighting factor 1).
      
      19. Finally, the court notes in this regard that personal contributions paid for legal assistance provided or costs incurred in the civil proceedings cannot form part of a compensation for legal costs. This also applies to the travel costs incurred by the claimant for visiting her lawyer. , as well as for telephone costs incurred in the objection phase.
      
      
    
  
  
    Decision
    
    
      The court:
     
    
    - declares the appeal well-founded;
    - annul the contested decision;
    - instructs the defendant to take a new decision on the objection within six weeks, taking into account this decision;
    - orders the defendant to jointly pay the plaintiff and her son a total of €250 in damages;
    - orders the defendant to reimburse the plaintiff for the court fee paid of € 178;
    - orders the defendant to pay the plaintiff's legal costs to an amount of € 1,068.
    
    
    
      This statement was made by mr. A.J.G.M. van Montfort, judge, in the presence of
      C. Cooper, Registrar. The verdict was pronounced in public on
     
    
    
    
      The verdict will be made public on the next Thursday after this date.
     
    
    
    
    
    
          
            
              clerk
            
            
              The judge is unable to sign this ruling.
            
          
        
    
    
    
    
      A copy of this ruling has been sent to the parties at:
     
    
    
  
  
    Do you disagree with this statement?
    If you do not agree with this ruling, you can send a letter to the Administrative Jurisdiction Division of the Council of State explaining why you do not agree with it. This is called an appeal. You must submit this notice of appeal within 6 weeks of the day on which this decision was sent. You can see this date above.