Rb. Zeeland-West-Brabant - AWB- 20 9345
| Rb. Zeeland-West-Brabant - AWB- 20_9345 | |
|---|---|
 | |
| Court: | Rb. Zeeland-West-Brabant (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 15 GDPR Article 1:3 AwB Article 7.3.10 Youth Act Article 7.3.17 Youth Act Article 6:2 AwB |
| Decided: | 20.11.2020 |
| Published: | 13.07.2021 |
| Parties: | Anonymous Mother Anonymous foundation |
| National Case Number/Name: | AWB- 20_9345 |
| European Case Law Identifier: | ECLI:NL:RBZWB:2020:5853 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtsprak (in Dutch) |
| Initial Contributor: | Kave Noori |
The District Court of Zeeland-West Brabant held that it did not have jurisdiction to decide on a case regarding a subject access request submitted to a private foundation providing assistance under the Dutch Youth Act. Whilst the claimant had brought an administrative claim, the Court held that the private provider was considered a non-administrative body, and advised the claimant to file a civil dispute.
English Summary
Facts
In September 2020, a mother requested copies of the youth files of three of her children from a private foundation that provides assistance under the Dutch Youth Act (Jeuwgdwet). About six weeks later, in October, she sent the foundation a letter stating that it had failed to respond to her request within the statutory time limit and demanding financial compensation.
In early November 2020, the mother filed an administrative appeal regarding the foundation's failure to respond to her request. In the request, she referred to the Dutch General Administrative Law Act (Algemene wet bestuursrecht, AwB), the European Convention on Human Rights (ECHR), the Dutch Youth Act (Juegdwet), the GDPR and the former Dutch Data Protection Act (Wbp), which was in force before the GDPR.
Holding
The court first considered the provisions on which the claim was based. The court found that the application was an access request based on Article 15 GDPR in conjunction with 7.3.10 of the Youth Act.
Secondly, the court considered whether it had jurisdiction to determine the matter. The court looked at the provisions of the General Administrative Law Act (AwB).
Article 1:3(1) of the AwB defines what an administrative decision is under Dutch administrative law: a written decision on an administrative body acting on the basis of a public law. Furthermore, Article 6:2(b) of the AwB stipulates that if an administrative body fails to respond to an individual's request in a timely manner, the request is deemed to be rejected so that the applicant can file an administrative appeal.
The court noted that Article 7.3.17 of the Youth Act was amended on January 1, 2015. This provision clarifies that private youth assistance providers are no longer considered administrative bodies. The court also referred to the already settled case law which also establishes the same thing.
The court therefore found that it did not have jurisdiction to decide the case. This was because the mother had brought an administrative claim against a non-administrative body. The court could not see that the alleged violations of the ECHR would lead to a different conclusion.
Finally, the court informed the mother that she could instead file her complaint as a civil dispute.
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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 Zeeland-West Brabant
Date of judgment
20-11-2020
Date of publication
13-07-2021
Case number
AWB-20_9345
Jurisdictions
Administrative law
Special characteristics
First instance - single
Content indication
GDPR
Locations
Rechtspraak.nl
Enhanced pronunciation
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Statement
COURT ZEELAND-WEST-BRABANT
Administrative law
case number: BRE 20/9345 AVG
decision of 20 November 2020 of the single chamber in the case between
[name of plaintiff] , at [name of town] , plaintiff,
and
Foundation Intervence in Middelburg.
Process sequence
Plaintiff filed an appeal by letter dated November 2, 2020 against the failure to make a (timely) decision by Stichting [name of foundation] on her request for access to and copies of the client files of her minor children [name of child], [name of child 2] and [ child's name 3] .
Considerations
1. Facts
In a letter dated September 5, 2020, the Plaintiff requested Stichting [name of the foundation] to inspect and make copies of the complete files of her children.
On October 19, 2020, Plaintiff gave [name of foundation] a notice of default and requested her to award a penalty if the decision was not made in time.
On November 2, 2020, Plaintiff filed an appeal against the failure to decide (timely) on her request of September 5, 2020, invoking the General Administrative Law Act (Awb), the European Convention on Human Rights and Fundamental Freedoms. (ECHR), the Youth Act, the General Data Protection Regulation (GDPR) and the Personal Data Protection Act (Wbp).
2. Legal framework
The legal framework is included in the appendix to this ruling.
3. Court assessment
The court will first of all assess whether it has jurisdiction to hear the dispute.
It follows from Articles 1:3, first paragraph and 6:2, preamble and sub b of the Awb that an appeal to the administrative court is only possible in the event of (the absence of) a decision by an administrative body. The court is of the opinion that Stichting [name of foundation] is not an administrative body and considers the following in this regard.
It appears from Plaintiff's request that she did not intend to disclose the relevant files to everyone, but only to herself. Plaintiff's request must be regarded as a request within the meaning of Article 7.3.10 of the Youth Act or Article 15 of the AVG (the successor to the Wbp).
Article 7.3.17 of the Youth Act relates to such requests and has been worded as follows since 1 January 2015: “A decision by a youth counselor taken on the basis of this section, a decision on a request as referred to in Articles 15,16, 17 or 19 of the General Data Protection Regulation, as well as a decision in response to the recording of an objection as referred to in Article 21 of that Regulation, also insofar as the youth care worker has taken the decision as or on behalf of an administrative body, for the purposes of section 3.3 of the General Data Protection Regulation. the General Data Protection Regulation Implementing Act, as a decision taken by a body other than an administrative body”.
On this basis, the Foundation [name of foundation] cannot (any longer) be regarded as an administrative body. The court refers to the decisions of the Administrative Jurisdiction Division of the Council of State of 21 March 2018, ECLI:NL:RVS:2018:983 and of 13 February 2019, ECLI:NL:RVS:2019:436.
Therefore, the administrative court is not competent to hear the appeal lodged by the claimant against the failure to decide (timely) on her request.
The claimant's reference to the ECHR cannot lead to a different opinion about the application of the Youth Act or the AVG.
The claimant can apply to the civil court by means of a petition.
The appeal is therefore manifestly inadmissible. Therefore, the court will settle the case without hearing it in court as stated below.
Decision
The court declared the appeal inadmissible.
This statement was made by mr. S.A.M.L. van de Sande, judge, in the presence of mr. T.B. Both, Registrar, on 20 November 2020 and made public by means of anonymized publication on www.rechtspraak.nl.
The registrar is not in a position to sign the decision.
Registrar Judge
Copy sent to parties on:
Remedy
The parties and other interested parties can object to this ruling before the court. The term for submitting a notice of objection is six weeks and starts on the day after the decision has been sent.
Appendix
Legal framework
General Administrative Law Act (Awb)
Article 1:3, first paragraph reads as follows:
A decision is understood to mean: a written decision by an administrative authority, containing a legal act under public law.
Article 6:2, preamble and under b reads as follows:
For the application of statutory regulations on objections and appeals, the following are equated with a decision: failure to take a decision in time.
Article 8:54, first paragraph, under b, of the Awb reads as follows:
Until the parties have been invited to appear at a hearing of the administrative court, the administrative court may close the investigation if it is not necessary to continue the investigation because the appeal is manifestly inadmissible.
Youth Act
Article 7.3.1, first paragraph reads as follows:
The provisions of this paragraph, with the exception of Articles 7.3.4, 7.3.5, 7.3.6 and 7.3.16, with regard to the youth care worker apply mutatis mutandis to the employee of the certified institution, on the understanding that for «youth assistance» or «provision of youth care» is read as «implementation of a child protection measure or juvenile probation service».
Article 7.3.10 reads as follows:
Upon request, the youth counselor will provide the person concerned with access to and a copy of the data from the file. The disclosure is not made insofar as this is necessary in the interest of protecting the privacy of another person.
Article 7.3.11, first paragraph reads as follows:
Without prejudice to Article 7.3.2, third paragraph, second sentence, the youth counselor shall ensure that no information about the person concerned or access to or copies of the data from the file is provided to anyone other than the person concerned, except with the consent of the person concerned. If provision takes place, this will only take place insofar as this does not harm the privacy of another person. The provision shall be made without regard to restrictions, if required to do so by or pursuant to the law.
Article 7.3.17 reads as follows:
A decision by a youth counselor taken on the basis of this paragraph, a decision on a request as referred to in Articles 15,16, 17 or 19 of the General Data Protection Regulation, as well as a decision following the registration of an objection as referred to in Article 21 of that regulation apply, also insofar as the youth care worker has taken the decision as or on behalf of an administrative body, for the purposes of section 3.3 of the General Data Protection Regulation Implementation Act, as a decision taken by a body other than an administrative body.
General Data Protection Regulation (GDPR)
Article 15, first paragraph, preamble, reads as follows:
The data subject has the right to obtain confirmation from the controller as to whether or not personal data concerning him/her is processed and, if that is the case, to obtain access to the personal data.
Implementation Act General Data Protection Regulation (UAVG)
Article 34 reads as follows:
A written decision on a request as referred to in Articles 15 to 22 of the Regulation shall be taken within the periods referred to in Article 12(3) of the Regulation and, insofar as it has been taken by an administrative authority, shall be considered a decision within the meaning of the General Administrative Law Act.
Article 35, first paragraph reads as follows:
If the decision on a request as referred to in Article 34 has been taken by a body other than an administrative body, the interested party may apply to the court with a written request to order the controller to submit the request as referred to in Articles 15 to 22 of the to grant or reject the regulation.
Article 35, fifth paragraph reads as follows:
The third section of the fifth title of the Second Book of the Code of Civil Procedure shall apply mutatis mutandis.
