OVG Saarlouis - 2 A 370/20

OVG Saarlouis - 2 A 370/20
Court:	OVG Saarlouis (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 15 GDPR
Decided:	19.04.2021
Published:
Parties:
National Case Number/Name:	2 A 370/20
European Case Law Identifier:	ECLI:DE:OVGSL:2021:0419.2A370.20.00
Appeal from:	VG Saarlouis (Germany) 3 K 1527/18
Appeal to:
Original Language(s):	German German
Original Source:	Bürgerservice Saarland (in German) Bürgerservice Saarland (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Superior Administrative Court of Saarland held that the protection of social care data entrusted to a youth welfare office generally supersedes the right to access to such data.

English Summary

Facts

The plaintiff sought access to the files of the defendant's Youth Welfare Office concerning his daughters. In December 2017, the plaintiff's ex-wife asked the plaintiff for his consent to the immediate admission of the younger daughter to a psychotherapeutic clinic. In the same month, the plaintiff gave his consent, but at the same time demanded comprehensive information about the daughter's situation and the content of the planned treatment. The mother refused this.

In March 2018, the plaintiff then applied to the defendant to be granted access to all files kept there in order to "assert legal interests". The divorced wife refused to allow the plaintiff to inspect the files, stating that the younger daughter did not wish to do so. By letter dated 26.3.2018 to the plaintiff, the defendant refused to grant access to the files.

The plaintiff lodged an objection against this refusal. The plaintiff's objection was rejected. The plaintiff claimed that the documentation contained individual details on his person as well as on his divorced wife and on their common daughters. In the plaintiff's view, there was a well-founded assumption that these data on his person were highly relevant in terms of personality and fundamental rights and data protection law. He had no knowledge, or at least no precise knowledge, of this data, nor of the nature and content of the conclusions that the defendant had drawn from it, possibly to his disadvantage and over several years. Additionally, the plaintiff wanted to receive information about the condition of his daughter, which he could not have obtained in another way, especially from his ex-wife.

Holding

The Court held that the protection of social data collected and "entrusted" to the youth welfare office in the context of child and youth welfare procedures generally supersedes the general provisions on the inspection of files and the protection or disclosure of social data. It is compatible with the requirements of the GDPR, because it contains additional requirements that strengthen the protection of the data of those affected. In principle, it therefore also takes precedence over freedom of information law claim standards.

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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.

Right of a father to inspect files of the youth welfare office

Editorial
(1) Just as the admissibility proceedings, which are limited to the examination of reasons pursuant to § 124.2 of the Code of Administrative Procedure (VwGO), or a complaint of insufficient clarification of the facts raised within the framework of the admissibility proceedings do not constitute a suitable means to replace or "catch up" on applications for evidence that were not made at first instance, the same applies mutatis mutandis to the failure to initiate so-called in-camera proceedings pursuant to § 99.2 of the Code of Administrative Procedure (VwGO). In-camera proceedings pursuant to § 99 (2) VwGO before the specialised panel of the Higher Administrative Court which, according to the applicable procedural law, is solely responsible for reviewing the lawfulness of the refusal to produce files.(para.30 )

2 The subject of the so-called in camera proceedings is solely the blocking declaration made with reference to § 99 (1) sentence 2 VwGO or its justification by this standard. This also applies to actions for disclosure, specifically by granting access to files, but does not change the fact that this assessment must also be answered by the specialised panel (§ 189 VwGO) according to the standards of the substantive or other legal requirements for disclosure by granting access rights, for example according to the freedom of information law or, in this case, the increased requirements for a protection of social data according to § 65.1 sentence 1 SGB VIII (juris: SGB 8).(marginal no.33)

The protection of social data collected in the context of child and youth welfare procedures and "entrusted" to the youth welfare office, which is enshrined in § 65.1 sentence 1 SGB VIII (juris: SGB 8), has a very far-reaching effect which generally supersedes the general provisions on the inspection of files and the protection or disclosure of social data, for example from § 25 SGB X (juris: SGB 10) (marginal no. 38).

The provision in section 65 of Book VIII of the Social Code (juris: Book 8 of the Social Code) is also compatible with the requirements of the European Data Protection Regulation (GDPR; juris: EUV 2016/679) because it contains additional requirements that strengthen the protection of the data of the persons concerned and therefore, in principle, also takes precedence over freedom of information law standards of entitlement (marginal no.38).

(5) It is not subject to any overriding concerns if an opposition authority, when determining the benefit of the official act for the opponent in cases in which an ideal interest of the opponent in the success of the request cannot be economically measured, is guided by the requirements of Section 52 (2) GKG (juris:GKG 2004) for administrative court proceedings.(para.40)

Proceedings
preceding Administrative Court of the Saarland, 30 October 2020, 3 K 1527/18, Judgment
Tenor
The plaintiff's application for leave to appeal against the judgment of the Saarland Administrative Court of 30 October 2020 - 3 K 1527/18 - is dismissed.

The costs of the admission proceedings, which are free of court costs, shall be borne by the plaintiff.

The amount in dispute for the admission proceedings is set at € 5,000.

Reasons
I.

Paragraph 1
The plaintiff seeks access to the files of the defendant's Youth Welfare Office concerning his daughters, who were born on ... 1988 and ... 2000 respectively. Both come from a marriage divorced in September 2006. At that time, custody was awarded to both parents jointly. The plaintiff had previously declared to the Family Court that he had agreed on a care arrangement with the mother.

Paragraph2
In December 2011, the plaintiff's former wife drew the defendant's attention to problems with the care of their joint children. The latter informed him in June 2013 that his daughters no longer wished to have contact with him. Subsequent attempts by the defendant to persuade the mother to talk to the plaintiff together were unsuccessful.

Paragraph3
In December 2017, the mother then asked the plaintiff for his consent to the inpatient admission of the younger daughter to a psychotherapeutic clinic. In the same month, the plaintiff gave this consent, but at the same time demanded comprehensive information about the daughter's situation and the content of the planned treatment. The mother refused this. In March 2018, the plaintiff then applied to the defendant to be granted access to all files kept there in order to "assert legal interests". The divorced wife refused to allow the plaintiff to inspect the files, stating that the younger daughter did not wish to do so.

Paragraph 4
By letter dated 26.3.2018 to the plaintiff, the defendant refused to grant access to the files. In the justification, reference was made to special protection of legitimate expectations in personal and educational assistance. Social data could therefore only be disclosed with the consent of the person who had entrusted him with the data. The plaintiff's daughter, who was currently undergoing outpatient therapeutic treatment, had great reservations about the disclosure of her data. Furthermore, an inspection of the files would endanger the psychological well-being of the child. Furthermore, in view of the fact that she would turn 18 in August 2018, she would have to be heard in person.

By letter of 27 April 2018, received by the respondent's Youth Welfare Office by fax on 30 April 2018, the plaintiff lodged an objection against the refusal to grant access to the file, essentially arguing that the complete refusal to grant access to the file was unlawful. The required balancing of the interests of the parents and the child had not taken place. In making the decision, the defendant had unilaterally taken into account the legal position of the daughter, but not his interests as the parent in whose care the child was not. The fact that his daughter was soon to reach the age of 18 could not lead to the complete exclusion of a parent with custody from basic information. Otherwise, custody rights would come to nothing. The constitutionally protected position of a parent with custody was also to be taken into account. Such a weighing had not taken place. Furthermore, although the defendant had alleged that his daughter's psychological well-being was at risk, he had not explained this in detail. Conceptually alone, a threshold of particular extent had to be exceeded. In addition, other factors which had a not inconsiderable effect on the psychological well-being of the daughter had not been taken into account at all. Because of the daughter's care in her mother's household, the mother was obliged to inform him promptly of all important events and to take all important decisions in this connection in agreement with him. However, this did not take place. For the most part, his questions were not answered by the mother on the grounds that the daughter did not want this. For this reason, he had no information about her current state of health, about the success of the inpatient therapy, the steps that had been taken since her discharge towards mental recovery, the doctors and therapists treating her on site, the reasons for the break-off of contact in 2013 and the reasons for the onset of depression. Finally, he did not know what had been alleged about him to the defendant by the daughter or the mother, how the defendant had evaluated any allegations and what conclusions he had drawn from them. Due to the almost complete isolation as the father with custody and the refusal to allow him to inspect the files, there was a serious danger that the protection of the daughter's social data would be overestimated to his detriment. The refusal to allow access to the files was disproportionate and unlawful. After all, only social data that his daughter had entrusted to the employee of a public youth welfare organisation was protected. All other contents of the file were available to him for inspection.

Paragraph 6
The plaintiff's objection was rejected in August 2018.1 In the reasoning, it was stated, among other things, that section 25, paragraph 1, sentence 1 of the Social Code, Book X (SGB X) was not initially applicable as the basis for the asserted claim to inspect the files kept at the youth welfare office and concerning his family. The youth welfare proceedings had been concluded. It could be left open whether the plaintiff had a legitimate interest in retrospective inspection of the files. The granting of inspection was in any case precluded by the obligation of secrecy under §§ 25.3 SGB X, 65.1 sentence 1 no. 1 SGB VIII. In this respect, there was also no room for the exercise of discretion. Since the social data of the former wife and the joint children were "entrusted" to the youth welfare agency, they were subject to special protection. The main reason for this "rigorous" prohibition of the disclosure of social data in this area, also in view of the rights of access to files or freedom of information and the General Data Protection Regulation, was the state's interest in the effective provision of assistance, i.e. ultimately the guarantee of the best interests of the child. The benefit of the official action was set at €5,000 in the operative part of the objection notice. In a separate decision, the costs of the proceedings were set at €128.06 on this basis.

In support of the action filed in October 2018, the plaintiff submitted, inter alia, that on 15 December 2017 he had orally requested an employee of the defendant to grant him access to all files kept at the District Youth Welfare Office in the youth welfare matter. There were several bases for his claim. Pursuant to § 25.1 sentence 1 of the Social Code Book X, the authority had to allow the parties involved to inspect the files insofar as their knowledge was necessary for the assertion or defence of their legal interests. Since the respondent was no longer conducting administrative proceedings, the decision on granting access to the files was at his discretion. Of course, the files of the Youth Welfare Office contained individual details on his person as well as on his divorced wife and on their common daughters. In view of the defendant's repeated insinuations, there was a well-founded assumption that these data on his person were highly relevant and explosive in terms of personality and fundamental rights and data protection law. He had no knowledge, or at least no precise knowledge, of this data, nor of the nature and content of the conclusions that the defendant had drawn from it, possibly to his disadvantage and over several years. Moreover, until his daughters had reached the age of majority, he had had the right, as father with joint custody with their mother, against the background of §§ 1626, 1627 of the Civil Code, to be informed at least about essential questions of their development and to have a say in their development. With regard to his younger daughter and her psychiatric illness, a depression, all attempts to obtain sufficient information from other sources had failed. He had been denied co-decision-making all the more. Against this background, access to the file was the only way to obtain information about the personal data stored by the defendant about himself and his daughters and - insofar as they were related to his person - also about the data concerning his divorced wife. Knowledge of this data was necessary for possible further legal measures against the defendant and for the defence of his rights and interests vis-à-vis his daughters and his divorced wife. Relevant here were, for example, objections under civil law, claims under state liability law, steps under service supervision law or, in the most extreme case, the filing of criminal charges. The first sentence of section 1 of the SIFG and the first sentence of section 1(1) of the IFG establish a right of access to official information which is unconditional and not dependent on the existence of a legal or legitimate interest. According to Article 15(1) of the GDPR, the data subject had the right to request confirmation from the data controller as to whether personal data concerning him or her were being processed. If this is the case, there is a right of access. According to Article 288(2) of the Treaty on the Functioning of the European Union (TFEU) and Section 35(2) of the German Social Code, the General Data Protection Regulation was not superseded by the data protection provisions of the Social Code. A right to refuse information pursuant to § 83 SGB X n.F. obviously did not exist according to the wording. There was no exclusion under § 65 of Book VIII of the Social Code with regard to all three of the above-mentioned bases for claims. Not all data that an employee of public youth welfare services learns about are "entrusted" to him or her in this sense, but only those that were communicated to him or her in reliance on his or her special duty to protect in the expectation that they would not be made accessible to third parties. It was wrong to extend the ban on information to such an extent that it covered the entire files of the authorities. The wording, meaning and purpose and the claimant's constitutional legal positions argued against this. Insofar as no social data of third parties was concerned which had been entrusted to an employee of the defendant, there was therefore a right to information about the contents of the files. Accordingly, the general refusal of any access to files was incompatible with this and unlawful. Insofar as according to § 65.1 sentence 1 no. 5 of Book VIII of the Social Code a disclosure of social data was also permissible under the conditions under which a person named in § 203.1 or 4 of the Criminal Code would be authorised to do so, the parental right superseded the duty of confidentiality if it was necessary for the parents to gain knowledge of information that their child had entrusted to a person under § 203.1 of the Criminal Code. Against this background, the present case concerned the psychiatric illness of his daughter, about which he had not been informed of the name and address of the doctor or psychologist treating her within the meaning of section 203, paragraph 1, nos. 1 or 2 of the Criminal Code until she reached the age of majority and beyond, let alone the reasons for this illness and the ways to its therapy. A rigorous handling of the provision of section 65 of Book VIII of the Social Code in the sense of a "total ban" violated higher-ranking law. The provision was to be interpreted and applied in accordance with the provisions of the Basic Law and the European Charter of Fundamental Rights. It was constitutionally impossible for § 65 of Book VIII of the Social Code to put the youth welfare administration in a position to keep secret statements that could seriously and permanently undermine a person's claim to respect, particularly within his or her family, and that could escape judicial review because of the secrecy. Even to the extent that in the present case it should follow from § 65 of Book VIII of the Social Code that, for example, the statements that his daughter had entrusted to the defendant should also enjoy protection from him as the father with custody until 13 August 2018, a complete denial of access to the file was disproportionate and thus unlawful. To the extent that the District Law Committee had set the benefit of the official act at €5,000, it had not provided any justification apart from citing the legal grounds and, moreover, had not shown that this rough estimate was based on a constant practice of the authorities, which therefore complied with the general principle of equality under Article 3.1 of the Basic Law and Article 12.1 of the Constitution. The direct material benefit of the inspection of files was small for him. In the present proceedings, it was rather a question of the immaterial value of the inspection of files for the preparation of possible other proceedings and legal remedies. An immaterial value should not play a role in the assessment of the benefit. Therefore, the benefit of the official act had to be reduced to an appropriate amount.
After the court had enquired with the defendant regarding concerns expressed in the defendant's statement of 13 November 2018 about an anticipation of the main action by granting access to the files of the Youth Welfare Office sent to the court, the defendant requested the return of these administrative documents in a statement of 14 May 2019 in order to make any information concerning third parties unidentifiable. The file was then returned to the defendant and subsequently partially blocked by the Ministry of Social Affairs, Health, Women and Family Affairs on 16 October 2019. After receipt of the Jugendamt file, now shortened in accordance with this blocking notice, the plaintiff was given the opportunity to inspect it in December 2019.

Paragraph9
Subsequently, the plaintiff, who had originally requested that the defendant be obliged to grant him access to the files in the youth welfare matter, if necessary by redacting third party social data, and to reduce the benefit of the official action of €1,000.00 as determined in the notice of opposition, was asked by the Administrative Court to state whether he made a declaration terminating the proceedings.

Paragraph10
The plaintiff expressed the view that a statement of claim had not been made due to the blocking notice. He had the impression that he was still denied access to the documents that were actually relevant. He still considered it possible, if not probable, that statements had been made about his person in the course of 14 years, especially since March 2011, which did not correspond to the truth, or that the facts had been distorted. He could not rule out that the underlying facts had not been investigated and assessed dutifully and that wrong conclusions had been drawn to his disadvantage. He had to fear that his parental rights had been violated in the long term and over many years. In addition, there were possibly past and present violations of his general right of personality, including his right to informational self-determination. In so far as he had been able to obtain access to the files, he declared that there was no need to adjudicate on the merits of the case and applied for a declaration by the court that the defendant's refusal to grant access to the files was unlawful.

Paragraph 11
The applicant last requested

Paragraph 12
1. the defendant is ordered to grant the plaintiff full access to the files held by him in the youth welfare matter (...), annulling the decision of 28 March 2018 in the form of the notice of opposition of 28 August 2018,

Paragraph 13
2. in the alternative, to oblige the defendant to make available for inspection the documents containing non-confidential data in the strict sense,

Paragraph 14
3. declare that the defendant's total refusal of access to the file was unlawful,

Paragraph 15
4. that the benefit of the official act as set out in the notice of opposition of 28.8.2018 be reduced to €1,000. On this basis, the defendant shall reassess the costs of the opposition proceedings against the applicant.

Paragraph16
At the hearing, the defendant agreed with the claimant's statement of partial satisfaction and otherwise requested,

paragraph 17
dismiss the action.

Paragraph 18
The defendant defended the determination of the object value for the opposition proceedings. If the state of the facts and the dispute did not offer sufficient indications for this, a value of €5,000 was to be assumed in accordance with §52.2 GKG. On the basis of this standard value, the amount of the fee was determined in accordance with the Guidelines on the Determination of Fees in Opposition Proceedings of 30 January 2002. In doing so, he had assumed a low administrative burden. Moreover, objections against the amount of the opposition fees had to be asserted by way of an objection against the costs assessment notice. The applicant had failed to do so.
In October 2020, the Administrative Court discontinued the proceedings to the extent of the concurrent declarations of settlement and dismissed the rest of the action. In its reasoning, it stated that the claim pursued with the most recent application was likely to be an amendment to the original claim in the form of an extension of the claim. There were already doubts as to whether this amendment was admissible. Moreover, the refusal to submit the complete file to the court, to which the plaintiff's further request for inspection referred, was based on one of the grounds of § 99.1 sentence 2 VwGO. The parties could only proceed against this pursuant to § 99.2 of the VwGO. In this respect, there was no interest in legal protection for an action for production or for the provision of information. However, the court was allowed to dismiss the action on substantive grounds even if the existence of the prerequisites for a substantive judgment was doubtful, if the dismissal of the action as unfounded was easier than an examination of the prerequisites for a substantive judgment. That was the case here. The merits of the action for compulsory further inspection of files were to be denied without further ado. The plaintiff was not entitled to the requested inspection of files. In the present case, the files of the Youth Welfare Office had only been sent to the court in part pursuant to § 99.1 of the Code of Administrative Procedure (VwGO) and a complete transmission of the files had been refused. According to this provision, public authorities were in principle obliged to produce files in administrative disputes even if the provision of information was itself the subject-matter of the dispute. In this case, the obligation to produce files was not limited from the outset only to those files which had only arisen at the authority on the occasion of the current dispute, but also included, in principle, the files which the specialised authority had refused to inspect with reference to any reasons standardised in the respective specialised law. The scope of application of § 25 SGB X always ends, even without the authority's decision becoming final, when legal proceedings are pending. From then on, the inspection of files was regulated by procedural law. Section 99(1) sentence 2 of the VwGO represented a special procedural law rule compared to claims for information regulated by specialised legislation. § 99.2 sentence 1 of the Code of Administrative Procedure (VwGO) assigns the initiative to open the interlocutory proceedings reviewing the refusal to produce the file or the refusal to provide information to the parties. The special panel responsible under § 189 of the VwGO then decides whether the refusal to produce the file by the supreme supervisory authority is lawful or not. The interlocutory proceedings were not initiated ex officio, but only upon application. If no application was made, the court in the main action was bound by the refusal of the supreme supervisory authority. The applicant, who had been informed of the receipt of the files and the proceedings pursuant to § 99.2 VwGO by court order of 3 May 2019 at the latest, had not made any request to that effect in the oral proceedings before the Board and had thus not challenged the lawfulness of the refusal to refer. Without a decision of the specialised panel, it had to be assumed that the submission of the files had been rightly refused. The same applied to the alternative claim under 2), which was therefore also unfounded.
Insofar as the plaintiff sought a declaration of the unlawfulness of the total refusal of access to the file with his application to 3), this application was already inadmissible. The plaintiff had not been able to demonstrate any circumstances from which he had a legitimate interest in the requested declaration within the meaning of § 113.1 sentence 4 VwGO. In particular, he could not invoke a risk of repetition. The plaintiff had not presented any circumstances that made it appear likely that he could be affected again by a similar refusal of access to documents under essentially unchanged circumstances. At the hearing, he himself had pointed out that his two daughters were now of age. A merely abstract possibility, which could not be ruled out, that in the case of a renewed youth welfare case he would again not be granted any access to the files, was not sufficient to justify a concrete risk of repetition. Even taking into account the effective legal protection guaranteed by Article 19.4 of the Basic Law, the action for a continuation of the proceedings did not serve to clarify abstract legal questions which might be of importance for the respective plaintiff again at some point in the future. Rather, only those legal questions could be clarified whose decision was of practical importance for the parties involved as a guideline for future conduct, because a comparable situation was already becoming concretely apparent again and its occurrence in the foreseeable future did not only appear theoretically possible. There were no tangible indications of this. Insofar as he had stated at the hearing that he wanted to prevent the same thing from happening to third parties in the future, the plaintiff did not have standing in this respect. The plaintiff's interest in a continuation of the proceedings could also not be justified by an interest in rehabilitation. Such an interest only existed if the challenged measure resulted in a stigmatisation of the person concerned, which was capable of lowering his or her reputation in public or in the social environment. This stigmatisation must have had an external effect and must still be ongoing. The demand for rehabilitation only justified an interest in a continuation of the proceedings if it was to be recognised as worthy of protection in a reasonable assessment of the circumstances of the individual case. It was not sufficient for this that the person concerned had perceived the measure complained of as discriminatory and defamatory. Rather, it was decisive whether, from an objective and reasonable point of view, detrimental after-effects of the measure persisted, which could be effectively countered by a judicial determination of the unlawfulness of the administrative action. It was neither evident nor substantiated that the total refusal of access to the files would have been associated with a lasting stigmatisation of the plaintiff. It was already doubtful whether the aim of the measure was to interfere significantly with the fundamental right under Article 6.1 and 6.2 of the Basic Law, with the general right of personality or with his right to informational self-determination. In any case, these were encroachments on fundamental rights which had not had any recognisable lasting effect. The plaintiff had not even alleged that there was a danger of the plaintiff being disparaged in public. Furthermore, a justified interest in a continuation of the proceedings did not arise with regard to the guarantee of effective legal protection under Article 19.4 of the Basic Law. This required that the person concerned could have encroachment measures that burdened him or her reviewed in court proceedings on the merits. An interest in a continuation of the proceedings pursuant to Article 19.4 of the Basic Law was therefore to be affirmed if otherwise no effective legal protection could be obtained against such interventions. This was to be assumed only in the case of measures which typically were completed in such a short time that they could not regularly be reviewed in the main proceedings without the assumption of an interest in a continuation of the proceedings. However, the plaintiff had failed to bring about a final clarification of the scope of the inspection of files pursuant to § 99.2 of the VwGO. Finally, an interest in a continuation of the proceedings could not be derived from the precedent effect of the requested determination for a possible official liability action. It was not evident that the plaintiff was seeking such a lawsuit. The application under 4), with which the plaintiff seeks a determination of the benefit of the official act to € 1,000 and, based on this, a re-determination of the costs of the opposition proceedings, is already inadmissible. The plaintiff lacked a need for legal protection for this application because the defendant's costs assessment notice of 4 September 2018, which was accompanied by its own instructions on how to appeal, had become final. Therefore, the legal position of the plaintiff would not improve even if this application were successful. In his statement of 8 October 2018 and in his submissions in the court proceedings on the merits, the plaintiff had raised objections to the determination of costs for the preliminary proceedings. However, this had taken place by means of a separate administrative act following the notice of opposition and the decision on the burden of costs. As in the case of an initial decision, the general provisions on preliminary proceedings as well as the action for annulment and the action for an order to pay costs were decisive for the legal protection against a decision fixing the costs and had to be observed. In so far as, if the decision on the opposition was challenged on the merits, the action for annulment or for an order to pay costs also covered its basic decision on costs, to which the applicant referred, this was correct. The court decision replaced the decision on costs in the opposition proceedings. In this respect, legal protection against the parts of the decision on costs, which, like the decision on the burden of costs, were part of the decision on the opposition by operation of law, was directly available before the court. The same applied if the decision on the opposition was contested and this action by operation of law included decisions on the determination of costs contained in the decision on the opposition. However, this was not the case in the Saarland, so that decisions on the assessment of costs, which were not a statutory part of the notice of opposition, but were subsequent decisions, were first to be challenged in preliminary proceedings like normal first decisions. The applicant had not done so.

Paragraph21
The plaintiff applied for leave to appeal against this decision insofar as it was decided in dispute.

II.

Paragraph22
The applicant's application for leave to appeal (§§ 124a (4), 124 (1) VwGO) against the judgment of the Administrative Court of 30.10.2020 - 3 K 1527/18 - is unsuccessful. The submissions in the statement of grounds for the application of 14 December 2020, which conclusively determine the scope of judicial review for the admission procedure with regard to the requirement of presentation (§ 124a (4) sentence 4 and (5) sentence 2 VwGO), do not justify the assumption that the appeal was filed solely on the basis of the application. 2020 does not justify the assumption of serious doubts as to the correctness of the first-instance decision (§ 124.2 no. 1 VwGO)2 which are to be assessed solely on the basis of the standard of correctness of the result, nor does a substantial procedural error of the first-instance proceedings that is potentially relevant to the decision (§ 124.2 no. 5 VwGO) result from these submissions.

A.

Paragraph23
Under the latter aspect, the plaintiff complains of a violation of § 86.3, § 104.1 VwGO and essentially complains that the presiding judge of the Third Chamber, who conducted the oral proceedings in the case on 30.10.2020, did not point out to him at the hearing the possibility of initiating a procedure under § 99.2 VwGO, which presupposes the filing of the corresponding application by the plaintiff, and the consequences resulting therefrom with regard to the parts of the file of the Youth Welfare Office covered by the blocking declaration of the competent specialised ministry. According to the court file, the defendant, who had referred to a threatening "anticipation of the main action" in the case of granting access to the files pursuant to § 100 VwGO after the submission of the (complete) administrative files in November 2018,3 was initially informed of the legal requirements of §§ 99 (2), 100 (1) VwGO and (already) the plaintiff received a copy of this letter of the court dated 3 May 2019 with the reference to the "possibility of access to the files". In connection with the return of the files to the defendant, the plaintiff was furthermore even expressly informed by the reporter under 17.5.2019 "about the standard of § 99 VwGO ... because of possible redactions/blocking declarations". Although the latter's reaction in the letter of 20.5.2019 and the reply to the sending of the blocking statement suggests that the legal context, for example with regard to a supposedly required request of the opposing party pursuant to section 99 para. 2 VwGO were not correctly understood by the plaintiff or, at any rate, were not fully understood by the plaintiff in terms of their implications for the proceedings, there would have been no compelling reason for the court, according to this course of proceedings, even for a non-legally trained party in the oral proceedings, to repeatedly refer to a possibility, ultimately because of the procedural situation, to the obligation to file an application for a decision by the competent senate of the Higher Administrative Court and thus for a substantive review of the lawfulness of the partial refusal to produce the file after the corresponding blocking notice. Only in such proceedings, which are themselves subject to increased requirements of secrecy, would it have been necessary to clarify the existence or non-existence of a need for secrecy of the "blocked" parts of the administrative file of the defendant's youth welfare office - which were no longer sent to the administrative court when the file was resubmitted in November 2019 - which would have precluded the submission of the file to the trial court.4 The fact that, with regard to the negative fact of an omission of a renewed reference to the interlocutory proceedings before the competent adjudicating body (§ 189 VwGO), which might have to be initiated by the plaintiff, there was no special duty to record the minutes, contrary to the view expressed in his application of 26 November 2020 for a "correction" of the minutes of the hearing on 30 October 2020, should only be mentioned as a supplement.
Paragraph24
Apart from this, it should be easy to understand that a court cannot base its decision on administrative documents or parts thereof that are not available to it or that are "blocked" within the meaning of § 99.1 VwGO, because their content is not known to it and therefore, for reasons of logic alone, could not be made the subject of the oral proceedings here. If this is what the plaintiff means when he speaks of a "binding effect" for the administrative court on the blocking declaration of the supervisory authority, which the defendant took into account by limited submission of the Youth Welfare Office file, he thereby describes the result correctly. In this respect, the judgement correctly states, with reference to higher court case law, that without a review by the specialised senate to be initiated by the plaintiff with an application pursuant to § 99.2 VwGO, the administrative court must assume for its decision that the submission of the parts of the file "blocked" by the supervisory authority was rightly refused. Nor can this be interpreted as meaning that the Administrative Court - as the plaintiff interprets it - was guided by the endeavour to "avoid" a decision on the merits of all of its claims.

To what extent, in relation to the first-instance judgment, one can speak of a "surprise decision" in the understanding of § 108.2 VwGO or of a "satisfaction-providing ... demonstration of professional superiority on the part of the author of the judgment" cannot be said.

Paragraph26
The fact that the files of the defendant's Youth Welfare Office and - admittedly less important in this context - of the opposition authority had originally been submitted to the court in their entirety in November 2018 and were therefore also subject to the right of inspection of the parties, in particular of the plaintiff, does not need to be elaborated on. There is also no indication from the court files that the blocked parts were also taken note of in terms of content by the judges who ultimately made the decision, or that they were (nevertheless) used in the decision. Therefore, it also appears justifiable - only in passing - that the Administrative Court did not summon the plaintiff's daughters and former wife (§ 65 VwGO).

Paragraph27
Since the first-instance judgment was pronounced by the Administrative Court on the day of the hearing following the oral proceedings (§ 116.1 sentence 1 VwGO), it is finally no longer necessary to consider the question whether the application under § 99.2 sentences 1 and 3 VwGO filed with the Administrative Court in November 2020 "as a highly precautionary measure" could have given the Administrative Court grounds to decide to reopen the hearing (§ 104.3 sentence 2 VwGO).

Paragraph28
Insofar as the plaintiff now also in the grounds for the application for leave to appeal 14.12.2020 (page 16) "highly precautionary" with reference to § 99 para. 2 sentences 1 and 3 VwGO, it remains to be pointed out that the subject of the assessment in the admission to appeal proceedings is solely the question of the existence of an asserted ground for admission within the meaning of section 124(2) VwGO on the basis of the submissions of the party seeking admission to appeal (section 124a(4) sentence 4 VwGO).

Paragraph29
Therefore, a potentially result-relevant error of the proceedings at first instance (§ 124 (2) no. 5 VwGO) cannot be established in the result.

Paragraph30
A substantive statement on the quality and, in particular, on the question of the need for secrecy of the parts of the file removed by the defendant prior to the renewed submission of the administrative file, in particular with a view to the relevant statutory provisions specifically in § 65.1 sentence 1 no. 1 SGB VIII, also against the background of otherwise generally regulated rights of access, for example pursuant to §§ 1.1 sentence 1 IFG, 1 SIFG or pursuant to the General Data Protection Regulation (EU), is also already not possible for the Senate on the basis of the file. The application for admission pursuant to §§ 124, 124a VwGO also does not give rise to any reason to conduct appeal proceedings solely to make up for the failure to file an application pursuant to § 99.2 VwGO. Just as the admissibility procedure, which is limited to the examination of reasons pursuant to § 124 (2) VwGO, or a complaint of insufficient clarification of the facts raised within the scope of the admissibility procedure, is not a suitable means to replace or "make up for" motions for evidence not filed at first instance,5 this applies accordingly to the failure to initiate so-called in-camera proceedings pursuant to § 99 (2) VwGO. This applies accordingly to the failure to initiate so-called in-camera proceedings pursuant to § 99 (2) VwGO before the specialised panel of the Higher Administrative Court which, according to the applicable procedural law, is solely responsible for reviewing the lawfulness of the refusal to produce files. It is not possible for the discerning senate to deal with the content of the questions raised in this regard regarding the need for secrecy of the documents or the question of the weighing of the interests6 and rights involved, because the relevant parts of the file are not available to it, or rather would have had to be submitted solely to the specialised panel pursuant to § 189 VwGO.

B.

Paragraph31
The requirements for the further ground for admissibility asserted by the plaintiff pursuant to § 124.2 No. 1 VwGO are also not met. Correctness within the meaning of the provision is to be understood as the correctness of the result of the decision's operative part, not the (complete) correctness of the reasoning given for it.7
Paragraph32
From this point of view, it can initially be left open whether the factual requests made by the plaintiff at the oral hearing on 30.10.2020, in particular with regard to the alternatively made request to grant access limited to "non-confidential" data in the file of the Youth Welfare Office, compared to the request to 1) formulated in the application of 8.10.2018, in which "if necessary, social data of third parties to be blackened" had been excluded, constitutes an amendment of the action within the meaning of § 91.1 VwGO or whether this would be admissible or not. The Administrative Court left this open and expressly did not base its decision on the inadmissibility of the "amended" complaint on this aspect. After the plaintiff had inspected the administrative documents available to the court and (only) insofar declared the legal dispute to be settled, only the parts of the original file that were not available and covered by the blocking notice of the Ministry of Social Affairs, Health, Women and Family Affairs of 16.10.2019 (page 3) remained in dispute. In this context, it must be conceded to the plaintiff that his request was recognisably directed precisely at an inspection of these documents. However, it is not necessary to go into this in more detail here with a view to § 91.1 of the Code of Administrative Procedure (VwGO). In this respect, the plaintiff - as he states in the application for admission - should also be granted a (general) need for legal protection, which the Administrative Court did not deny.

Paragraph33
If the plaintiff then, with reference to a "regime of § 99 VwGO" assumed by the Administrative Court - wrongly in his view - takes the view that this would result in an "exchange of the bases of the claim" in the context of an action for inspection of records or that the prerequisites for the claim would thus be "overplayed", this is based on an incorrect classification of these interim proceedings pursuant to § 99 (2) VwGO.8 As previously stated, in the event of differences of opinion between the parties to the underlying legal dispute, the specialised panel of the Higher Administrative Court alone decides whether or not the authority's refusal to submit requested documents in full is lawful. The subject matter of the proceedings is therefore solely the blocking declaration made with reference to § 99.1 sentence 2 VwGO or its justification by this standard. Contrary to the plaintiff's view, this also applies to actions for disclosure, specifically by granting access to files, but does not change the fact that this assessment must also be answered by the specialised panel (§ 189 VwGO) according to the standards of the substantive or other legal requirements for disclosure by granting access rights, for example according to the freedom of information law or, in this case, the increased requirements for a protection of social data according to § 65.1 sentence 1 SGB VIII. The introduction of the "in camera procedure" ultimately demanded by the Federal Constitutional Court9 does not mean that the standards of assessment or even the "bases of claims" change. However, it does assign to this special intermediate procedure in the cases mentioned in § 99 (1) sentence 2 VwGO an exclusivity to answer the questions arising in the conflict of interests between the right to information and the need for secrecy. Consequently, this leads to the fact that the court of facts is, on the one hand, bound by the assessment and, on the other hand, that it lacks a basis for assessment, as already explained, after limited submission of the files or parts of the files without lifting the blocking declaration, due to the lack of knowledge of the contents of the blocked parts of the files. One may describe this - using the terminology of the plaintiff - as a "relationship of precedence" in favour of the decision of the specialised panel or, as the case may be, of the Federal Administrative Court in the appeal proceedings pursuant to § 99.2 sentences 13, 14 VwGO. In any case, the consequences can hardly be doubtful. They are intended by the legislature and cannot be understood to mean that the bases for claims cited by the plaintiff under §§ 1 sentence 1 SIFG, 1 para. 1 sentence 1 IFG or under Art. 15 DSGVO would be "displaced". Rather, the respective prerequisites for a claim are transferred to the decision of a specialised adjudicating body, taking into account also opposing interests anchored in law, for example the requirements for a protection of personal data contained in § 5 IFG or - in this case specifically - the considerable restrictions for the disclosure of social data in the area of child and youth welfare pursuant to § 65 para. 1 sentence 1 SGB VIII, while safeguarding special procedural requirements for the protection of secrecy interests. The decisions of the 8th Senate of the Higher Administrative Court of the Saarland even predominantly concern claims for information brought on the merits.10 Against this background, it is also particularly irrelevant whether - as the plaintiff claims - none of the decisions cited by the Administrative Court was based on a claim for information under social law. The fact that, as the plaintiff states by way of examples, there are also other administrative law disputes in which such interlocutory proceedings are conducted at the request of a party is certainly correct, but it does not change anything. In this context, the motives for which the plaintiff refrained from filing an application pursuant to § 99.2 VwGO are not relevant for the decision.

With regard to the rejection of his claim under 3) for a declaration that a "total refusal of access to the file" was unlawful, the question first arises as to what the plaintiff, who in any case was granted access to the file before the Administrative Court and thereupon declared the legal dispute partially settled, understands by a "total refusal". Since the legal dispute is ultimately about the question of a right to inspect the files (also) with regard to the "blocked "11 parts of the file of the Youth Welfare Office that were taken out by the defendant before it was resubmitted, what is ultimately meant is a "complete" inspection of the files that was not granted by the defendant, i.e. also with regard to the parts that were missing in the file that was submitted. The requested finding that the refusal was unlawful in this sense also cannot be made without knowledge and evaluation of the contents of these file components, which were known neither to the plaintiff nor to the administrative court. This could only have been clarified in the form prescribed by procedural law within the framework of proceedings pursuant to § 99.2 VwGO. The fact that the defendant did not grant the plaintiff "total" access to the complete undivided file of the Youth Welfare Office before the "blocking" of numerous contents of the file by the Ministry of Social Affairs is readily comprehensible. The course of the proceedings shows that the plaintiff's interest in inspecting the file is not directed at the "unobjectionable" parts of the file known to him in the meantime through the inspection of the file, but precisely at the contents blocked for him.

Paragraph35
It goes without saying that the discerning senate also has no knowledge of the content of these parts of the original file. Against this background, the dismissal of the action does not really prove to be seriously doubtful within the meaning of § 124 (2) no. 1 VwGO, at least when applying the standard of correctness of result mentioned at the beginning. The plaintiff's assessment that the administrative court "would have had to issue a decision granting the application for a declaratory judgement" in the event of an affirmation of the interest in a continuation of the proceedings, is, moreover, discernibly not correct against this background.

Paragraph36
It is therefore not necessary to go into the extensive statements in the impugned judgment of 30.10.2020 on the question of the existence or - according to the Administrative Court in the result - the non-existence of a special interest in a continuation of the declaratory decision after the conclusion of the youth welfare proceedings or in view of the fact that the plaintiff's younger daughter from this relationship has also come of age in the meantime. This also applies to the allegation raised by the plaintiff in this context that the Administrative Court should have further clarified his personal situation and excluded the public at the hearing on 30 October 2020 - as requested by the plaintiff - in accordance with § 171b of the Basic Constitutional Law (GVG) because of a threatened violation of interests worthy of protection.

Paragraph37
In particular, the question of the plaintiff's interest in rehabilitation in view of these file contents could also only be answered if their contents were known to the court. According to the undisputed submissions of the parties, however, no measures were taken against the plaintiff or details from the file that negatively affected his reputation in the public perception became known in any form. According to the aforementioned, it is furthermore irrelevant in the present admission proceedings under the aspect of § 124.2 no. 1 VwGO whether the plaintiff, as he now states in the grounds for the application for admission, seeks to assert "claims under state liability law in an official liability action" and continues to reserve the right to take "steps under criminal law".

For this reason, it should only be noted here that the case law of the administrative courts attaches very far-reaching importance to the protection of social data collected and "entrusted "12 to the youth welfare office in the context of child and youth welfare procedures, as enshrined in Section 65 (1) sentence 1 of Book VIII of the Social Code, and that it generally supersedes the general provisions on the inspection of files and the protection or disclosure of social data, for example from Section 25 of Book X of the Social Code.13 The provision in Section 65 of Book VIII of the Social Code is also compatible with the requirements of the European Data Protection Regulation (GDPR) because it contains additional requirements that strengthen the protection of the data of those affected.14 In principle, it therefore also takes precedence over freedom of information law claim standards.15 The prohibition of disclosure is intended to protect the special relationship of trust between the specialist of the youth welfare office and the child or adolescent in care, which is necessary for personal and educational assistance in child and youth welfare, and to serve the effective provision of assistance and thus, as a result, to ensure the best interests of the child, which, according to this assessment, is to be rated higher in the balancing process than the need for information of other persons or authorities, which goes beyond the exceptional circumstances in section 65(1) sentence 1 of Book VIII of the Social Code.16 In this way, the legislature recognises that the openness and willingness to cooperate that is indispensable for personal and educational assistance can only arise if, apart from the exceptional cases defined in the regulation, social data entrusted to the individual youth welfare office employee may not be disclosed by him or her in order to protect the personal relationship of trust between the youth welfare office employee and the client that is necessary for the provision of assistance. Therefore, even a general right to information derived from parental rights does not lead to a situation where, contrary to § 65 (1) sentence 1 no. 1 SGB VIII, access to such social data entrusted to the staff of a public youth welfare agency for the purpose of personal and educational assistance is to be granted.17 This - if one wants to call it that - "rigorous" restriction on the disclosure of information is justified from the legislature's point of view by the state's interest in effective provision of assistance in the interest of the children or adolescents in order to ensure the best interests of the child. For this reason, the father of a child is not entitled to "uncensored" access to all files kept by the youth welfare office in relation to the child.18 If § 65 (1) SGB VIII precludes access to files, there is no need to weigh the interests of the authority in maintaining secrecy against the interest of the father of a child receiving youth welfare assistance in providing information.19
Paragraph 39
Whether, quite exceptionally, in this case, in deviation from these principles, due to special circumstances of the case, something else would have to apply, can neither be inferred from the factual submissions of the plaintiff, nor can this be further clarified in the present appeal admissibility proceedings according to the above - already due to the lack of the relevant documents - after the plaintiff did not request any further clarification of the content in the interlocutory proceedings made available by the Code of Procedure in this respect.

Finally, insofar as the plaintiff also objects to the rejection of his application under 4), filed at the oral hearing on 30 October 2020, for partial annulment or reduction of the assessment of the benefit of the official act in the notice of opposition of 28 August 2018 from € 5,000.00 to € 1,000. 000.00 to € 1,000.00, the sole relevant submission (§ 124a (4) sentence 4 VwGO) also does not justify the - insofar limited - admission of the appeal under the aspect of "serious doubts" (§ 124 (2) no. 1 VwGO). In this context, it can be left open whether the argumentation in the challenged judgment, which is based on a validity of the decision on the basis of this determination of the value of the object, with the result of the dismissal of the action due to inadmissibility for lack of need for legal protection, is to be followed in law. On the merits, there are, at least from the point of view of the result, no far-reaching reservations if an opposition authority, when determining the benefit of the official act for the opponent in cases in which - as here - an ideal interest of the opponent in the success of the request cannot be measured economically, is guided accordingly by the guidelines for the administrative court proceedings. According to this, the amount in dispute in administrative court proceedings is regularly to be based on the "importance of the matter" for the plaintiff (section 52 (1) GKG) and an amount in dispute of € 5,000, often referred to as the "standard value", is to be set if "no sufficient indications" are available in this respect - i.e. specifically in the case of interests of the opponent that cannot be measured economically. According to the Guidelines for the Determination of Fees in Opposition Proceedings (Table 1) issued on the basis of Section 21 (2) SGebG, the fee to be charged pursuant to Section 9a (1) sentence 1 SGebG is then between € 120 and € 180 and is therefore in any case in the lower range of the framework set by Section 9a (1) sentence 1 SGebG. It should be mentioned in passing that the defendant (Legal Committee), when determining the calculation factor of the case-related "administrative expense", is at the lower limit, determined a procedural fee of €120 for a "low" expense in that sense and, plus the special expenses pursuant to section 2 subsection 1 SGebG of €8.06 (service costs), set an amount of €128.06 in the decision of 4.9.2018.

Paragraph41
As there is no room in the admission proceedings pursuant to §§ 124, 124a VwGO for a clarification of abstract legal questions irrespective of the relevance of their answer for a decision, it is not necessary to further discuss the aforementioned theoretical argumentation of the plaintiff against the opinion of the Administrative Court, according to which in any case, in addition to the full challenge of the decision on the objection by way of an action, a challenge of the decision on the assessment of costs by way of an objection should also be required. Incidentally, this also applies - albeit in this respect with a view to the requirement of presentation pursuant to § 124a.4 sentence 4 VwGO - to the question of whether opposition proceedings, which from the point of view of the subject matter are to be assigned to youth welfare law, fall under the regulation pursuant to § 64.1 sentence 1 SGB IX and therefore, similar to the subsequent court proceedings in youth welfare matters pursuant to § 188 sentence 2 VwGO, remain free of costs. Only the so-called disputes between institutions are exempt from the above-mentioned exemptions from costs. A differentiation according to the need for assistance of the appellants in the specific case cannot be inferred from them. However, it is not necessary to go into this further for the reasons stated.

Paragraph42
Since the plaintiff, in the result, did not present any reason for the admission to appeal he had applied for within the meaning of § 124.2 of the VwGO, his application had to be rejected.

III.

Paragraph43
The decision on costs for the admission proceedings is based on §§ 154.2, 188 sentence 2 VwGO. The determination of the amount in dispute is based on §§ 63 (2), 52 (2), 47 GKG.

Paragraph44
The order is not appealable.