Rb. Rotterdam - C/10/576074/HA RK 19-694

Rb. Rotterdam - C/10/576074/HA RK 19-694
Court:	Rb. Rotterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15(3) GDPR Article 12 ePrivacy Directive
Decided:	21. 01. 2020
Published:	24. 01. 2020
Parties:	The State of the Netherlands vs. Anonymous
National Case Number:	C/10/576074/HA RK 19-6941
European Case Law Identifier:	ECLI:NL:RBROT:2020:483
Appeal from:	n/a
Language:	Dutch
Original Source:	De Rechtspraak (in NL)

The Rotterdam Court of First Instance considered that access request to procedural files before the State of the Netherlands was inadmissible. The Court ruled that the data subject does not automatically have the right to inspect or copy the documents or files containing their personal data under Article 15(3) GDPR and Article 12 of the ePrivacy Directive. However, there is a right to a complete overview, in comprehensible form, of all personal data.

English Summary

Facts

The plaintiff asked to the State to grant him access to procedural files in which he was involved against the State of the Netherlands concerning forgeries offence. The applicant claimed that the procedural files contained his personal data and evidences which could help him to prove his innocence in the aforementioned case and all the cases in which he would have been involded as a party against the State. The State refused to grant him the access.

Dispute

The Court clarified the interplay between the right to inspection under the ePrivacy Directive and the right to access under the GDPR.

Holding

First the Court clarified that both the ePrivacy Directive and the GDPR apply. It considered that the right of inspection of document including personal data is not absolute. However, it stated that the access right and the right of inspection have to be understood as a right to a complete overview of all personal data, in a form that enables the data subject to inspect his or her data and to check that they are correct and have been processed lawfully. Regarding the format, the Court recalled that the data subject cannot expect to be provided with the original document and that the material form depends on the concrete circumstances.

Then the court considered that the applicant's purpose was not to verify the accuracy and lawfulness of the personal data processed but to use them to prove his innocence in the case he was involved against the State and in any proceedings to be brought against the State. Thus, the court ruled that the applicant could not invoke the right to inspection because his claim did not concern the protection of his personal data and therefore, there was an abuse of rights.

As a consequence, the court considered the applicant's claim inadmissible.

Comment

Regarding the same issue, see the case Rb. Rotterdam - C/10/576091/HA RK 19-701.

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English Machine Translation of the Decision

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

ROTTERDAM COURT

Trade and port team

Case number / petition number: C/10/576074 / HA RK 19-694

Decision of 21 January 2020

in the matter of

[applicant] ,

residing at [place of residence of applicant] ,

petitioner,

appeared in person,

and

the public-law entity

THE STATE OF THE NETHERLANDS,

established in The Hague ,

defendant,

attorney at law M.M.C. van Graafeiland, The Hague.

The parties will hereinafter be referred to as [applicant] and the State.
1 The procedure
1.1.

An application dated 30 January 2019 with productions 1 to 7 was received at the Registry of the District Court [name of the District Court].
1.2.

By order of 21 May 2019, the Subdistrict Court of the District Court [name of court] referred the case, as it stands, to the Commercial Team of the District Court [name of court] .
1.3.

By order of 14 June 2019, the district court [name of district court] referred the case, as it stood, to the Rotterdam District Court.
1.4.

By letter dated 1 October 2019, Mr. Van Graafeiland acted on behalf of the State.
1.5.

Contrary to her letter of 1 October 2019, by letter of 13 November 2019, Mr. Van Graafeiland stated that she exclusively stood up on behalf of the State in the present case and in the cases with case numbers C/10/576071 / HA RK 19-693, C/10/576079 / HA RK 19-696, C/10/576091 / HA RK 19-701, C/10/576096 / HA RK 19-703 and C/10/576129 / HA RK 19-708. This means that she has not acted as an attorney at law on behalf of the State in the present case.
1.6.

On 2 December 2019 a statement of defence with productions 1.1 up to and including 2c was received at the Registry of this District Court.
1.7.

On 3 December 2019 a letter from [the applicant] with annexes was received at this court.
1.8.

On 10 December 2019, this case was heard orally at the same time as the petition proceedings pending before this court with case number C/10/576071 / HA RK 19-693, C/10/576079 / HA RK 19-696, C/10/576083 / HA RK 19-697, C/10/576085 / HA RK 19-698, C/10/576091 / HA RK 19-701, C/10/576094 / HA RK 19-702, C/10/576096 / HA RK 19-703, C/10/576110 / HA RK 19-706, C/10/576126 / HA RK 19-707, C/10/576129 / HA RK 19-708, C/10/576131 / HA RK 19-709 and C/10/576134 / HA RK 19-710.
1.9.

Finally, the decision has been adopted today.
2 The facts
2.1.

By letter dated 25 May 2018, [applicant] requested the State to inspect the processing of his personal data and that of the deceased Mrs [name of deceased].
2.2.

The aforementioned letter was also received by the State on 25 May 2018.
2.3.

In a letter dated 25 June 2018, the State informed [the applicant] that, with a view to further specification, the period of one month should be extended by two months.
2.4.

By letter dated 28 August 2018, the State decided on [the applicant's] request. It concludes:

"'On the basis of the AVG, you are entitled to an overview of personal data (see Appendix A). Your request for access to documents in your case file cannot be granted, for the reasons set out above'.
3 The dispute
3.1.

The applicant seeks an order that the State be ordered to grant [the applicant] access to the case-file in which he is involved. In support of his application, [the applicant] submits that the State failed to provide information on the action taken on the application without delay and within the time limits laid down in the General Data Protection Regulation (EU) 2016/679 (AVG) following receipt of his application for access. On the occasion of the oral hearing, [the applicant] claimed that the relevant case files in which he was involved contained forgeries. By granting access to those case-files, [the applicant] wishes to prove his innocence.
3.2.

The State puts forward a defence and claims that [the applicant] should be declared inadmissible in his application, or at least that his application should be rejected, and that [the applicant] should be ordered to pay the costs. In that regard, the State claims that it has already decided on [the applicant's] applications. Nor has [the applicant] stated and explained why the content of those decisions is incorrect. Moreover, the applications of [the applicant] do not form part of these proceedings.
3.3.

The arguments of the parties are set out in more detail below, where relevant.
4 The assessment
the admissibility of [the applicant] in his application
4.1.

Pursuant to Section 12(3) of the AVG and Section 34 of the AVG Implementation Act (UAVG), the data controller will provide information on the action taken on the request within one month of receiving it from the person concerned. If necessary, this period may be extended by two months.
4.2.

Article 35 paragraph 1 UAVG provides that a data subject may challenge a decision of a data controller on a request on the basis of, among other things, Article 15 AVG. Article 35 (2) UAVG provides that such a petition must be submitted to the court within six weeks of receipt of the response from the data controller to the request, on the understanding that an exception applies if the data controller has not responded within the period specified in Article 12 (3) AVG.
4.3.

The Court finds that - contrary to what the State suggests in its letter of 28 August 2018 - the request of [applicant] of 25 May 2018 was also received by the State on 25 May 2018, as evidenced by the printed stamp of the State on the aforementioned request. On 25 June 2018, the State extended the deadline by a further two months, which means that the State should have replied to the request no later than 25 August 2018. On 28 August 2018, the State replied without delay, but three days late, stating that it was not responding to [the applicant's] request. Subsequently, [applicant] submitted the application, dated 30 January 2019, to the court [name of court] or the State. This is more than six weeks after the State's response and therefore, in principle, also too late. Now that the State has failed to respond to [the applicant's] request of 25 May 2018 within the time limits set out in the AVG, there is no question of [the applicant] exceeding the time limit. The fact that it apparently took a few days before [applicant's] request reached the correct department of the court [name of the court] or the State internally cannot be invoked against [applicant]. In the relationship between the parties this should remain at the expense and risk of the State according to standards of reasonableness and fairness. In the given circumstances [applicant] is in this case admissible in his application.

assessment framework
4.4.

The right of access previously laid down in Article 12 of the Privacy Directive 95/46 has now been included in Article 15 of the AVG. The purpose of this right is to enable the data subject to inspect the personal data collected about him or her and to check that these data are correct and have been lawfully recorded. For the time being, there are no indications that under the AVG the objective and scope of this right of access has changed compared to the Privacy Directive, so that case law on the right of access that was established at the time of the Privacy Directive still applies now that the AVG is in force.
4.5.

Article 15 paragraph 3 of the AVG gives the right to a copy of the personal data being processed. Documents as such are not personal data and the AVG does not refer to the provision of a copy of the documents in which the personal data have been processed. The right of inspection therefore does not mean that the person concerned has a right of inspection or copies of the documents or files as such if they contain his or her personal data. However, there is a right to a complete overview, in comprehensible form, of all personal data. In other words, in a form that enables the data subject to inspect his or her data and to check that they are correct and have been processed lawfully. Insofar as this can be met by another form of disclosure, the data subject cannot derive the right from the AVG to obtain a copy of the original document or file containing the data (ECJ 17 July 2014, ECLI:EU:C:2014:2081). The concrete material form in which the data must be provided therefore depends on the concrete circumstances.

assessment of the substance of the request
4.6.

Now that [the applicant's] application is admissible, the substance of the application will be assessed. The District Court is of the opinion that what [the applicant] has submitted is insufficient to grant the application. The following circumstances play a role in this.
4.7.

On the occasion of the oral hearing [the applicant] explicitly and unequivocally stated that he requests access to procedural files that the court [name of the court] or the State has dealt with in relation to [the applicant]. The court thus understands that access is requested to procedural files in cases in which [applicant] was involved as a party to the proceedings. The request does not qualify for granting. The parties to legal proceedings have their own case file containing the procedural documents and copies of letters in the case in question.
4.8.

The District Court is of the opinion that the application does not qualify for granting either, because [the applicant] is committing an abuse of rights within the meaning of Article 3:13 of the Civil Code by frequently submitting applications on the basis of the AVG. The purpose of the right of inspection is to enable the data subject to take cognizance of the personal data collected about him or her and to check whether those data are correct and have been processed lawfully. On the occasion of the oral hearing, [the applicant] stated that he submitted these requests solely to prove his innocence with documents relating to procedural files in which he was a party to the proceedings. In so far as it must be established that the purpose pursued by [the applicant] is not to verify the accuracy and lawfulness of his personal data, but to obtain information which he wishes to use in order to provide (further) evidence of his innocence in any proceedings to be brought against the State. The purpose of [the applicant]'s right of inspection does not concern the protection of personal data, so that there is an abuse of rights.
4.9.

The conclusion of the above is that [applicant's] request is rejected.
4.10.

4.10. Orders [applicant], as the unsuccessful party, to pay the costs of the proceedings of the State. The costs of the proceedings have so far been estimated on the part of the State at an amount of € 639.00 in court registry fees and nil lawyer's salary. Now the State in the present case and in the cases with case number C/10/576071 / HA RK 19-693, C/10/576079 / HA RK 19-696, C/10/576091 / HA RK 19-701, C/10/576096 / HA RK 19-703 and C/10/576129 / HA RK 19-708 conducted the same defence, one point was awarded to the lawyer's salary in the case with case number C/10/576071 / HA RK 19-693. In the other cases, such as the present one, no point is therefore awarded to an attorney at law salary.
5 The decision

The court
5.1.

Rejects the request;
5.2.

Orders [the applicant] to pay the costs of the proceedings, assessed on the State's behalf at

€ 639,00.

This decision was taken by Mr A.F.L. Geerdes and pronounced in public on 21 January 2020.

2897/676