Rb. Den Haag - C/09/585239/ KG ZA 19/1221
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| Rb. Den Haag - CC/09/585239/ KG ZA 19/1221 | |
|---|---|
 | |
| Court: | Rechbank Den Haag (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(c) GDPR Article 15 GDPR Article 17 GDPR Article 22 GDPR |
| Decided: | 11. 2. 2020 |
| Published: | 11. 2. 2020 |
| Parties: | Anonymous Dutch government |
| National Case Number/Name: | CC/09/585239/ KG ZA 19/1221 |
| European Case Law Identifier: | ECLI:NL:RBDHA:2020:1013 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | de Rechtspraak (in Dutch) |
| Initial Contributor: | n/a |
The Court of First Instance of the Hague ruled that the e-screener digital questionnaire used to evaluate psychological condition of the gun license applicants does not violate Articles 6, 15, 17 and 22 GDPR.
English Summary
Facts
The Dutch state is legally obliged to assess whether there is a reason to fear that the firearms license applicant will misuse the weapons. The State has developed and rolled out a special digital questionnaire (e-screener) to measure each applicant up against 10 risk factors that paint a picture of the applicant’s psychological state.
The Royal Dutch Hunters Society (De Koninklijke Nederlandse Jagers Vereniging) and the Royal Dutch Shooting Sports Association (Koninklijke Nederlandse Schietsport Associatie) challenged the e-screener, claiming that, among other flaws, it infringes the GDPR.
Dispute
The Court was asked to assess whether there was a valid legal basis for the use of the e-screener and re-affirm the plaintiffs’ rights of access, erasure and not to be subject to automated decision making.
Holding
The judge found that the processing had a valid legal basis under Article 6(1)(c) GDPR (the processing is necessary for the compliance with legal obligation to which the controller is subject).
The judge recalled that each data subject is entitled to receive statisfactory responses providing whether the controller is processing his/her personal data and whether they can be accessed, under Article 15 GDPR. However, in the case at hand, the judge ruled that there were no evidence that the data subjects, i.e the hunting and firearms licence applicants, did not receive satisfoactory answers. Thus, Article 15 GDPR was not violated.
Furthermore, the judge ruled that the e-screener did not infringed Article 22 GDPR. Indeed, the judge clarified that the meaningful information about the recommendation algorithm behind the e-screener should not be shared with the applicants because they must remain confidential and such disclosure might render the test undermined (for example, it would be possible for the applicants to trick the algorithm into giving favorable scores). In this regard, the Dutch State provided sufficient evidence to demonstrate that the decisions were not taken solely based on the results of the e-screener test. Thus, the decisions which produces legal effects were not based solely on automated processing.
Finally, the judge rejected the request to erase personal data because this request was made by the Royal Dutch Hunters Society (De Koninklijke Nederlandse Jagers Vereniging) and the Royal Dutch Shooting Sports Association, who are not data subjects.
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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.
ECLI:NL:RBDHA:2020:1013
Authority
Court of The Hague
Date of pronunciation
11-02-2020
Date of publication
11-02-2020
Case number
C-09-585239-KG ZA 19-1221
Jurisdictions
Civil Justice
Special features
Interim injunction
Content indication
Interim injunction concerning the use of the e-screener when applying for a hunting licence or firearms permit.
When applying for a hunting permit or firearms permit, the State must assess whether there is reason to fear that the applicant will abuse firearms or ammunition for security reasons (among other things). To this end, the State has introduced the use of a new assessment instrument, the e-screener. The e-screener is a digitised questionnaire designed to measure ten risk factors, which together provide a picture of an applicant's mental state.
The Royal Dutch Hunters Association and the Royal Dutch Shooting Sport Association claim in preliminary relief proceedings to prohibit the State from using the e-screener any longer and to destroy the results obtained. To this end, they argue that the e-screener is not a sound means.
The Court in preliminary relief proceedings rejected the claims. The State has a substantial and legitimate interest in the introduction of the e-screener and it has not appeared that the e-screener is defective.
The claim for the provision of copies of documents relating to the exact content and operation of the e-screener is also dismissed. The State has sufficiently demonstrated that those documents must remain confidential in order to prevent the operation of the e-screener from being undermined.
Sites
Rechtspraak.nl
Enriched pronunciation
Ruling
Court of the hedge
Trade team - interim relief judge
Case number: C/09/585239 v KG ZA 19-1221
Judgment in preliminary relief proceedings of 11 February 2020
in the matter of
1 Royal Dutch Hunters Association in Amersfoort,
2. Royal Dutch Shooting Association in Amersfoort,
3. plaintiff sub 3] at [place 1] ,
4. [plaintiff sub 4] at [place 2] ,
5. plaintiff sub 5] at [place 3] ,
plaintiffs,
Lawyers G.J. van Oosten, J.Ph. de Korte and G.J. Wilts in Amsterdam,
against:
the State of the Netherlands, more specifically the Ministry of Justice and Security in The Hague,
defendant,
Lawyers C.K. van Lavieren, M.M.C. van Graafeiland and M. Dijkstra in The Hague.
Plaintiffs are hereinafter referred to separately as 'the Hunting Association', 'the KNSA', '[plaintiff sub 3]', '[plaintiff sub 4]' and '[plaintiff sub 5]' and jointly as 'plaintiffs'. The defendant is hereinafter referred to as 'the State'.
1 The proceedings
1.1.
The course of the procedure is evidenced by
- the writ of summons accompanied by and subsequently submitted productions;
- the letter from the State of 14 January 2020;
- the letter from the plaintiffs dated 17 January 2020;
- the conclusion of the reply with productions submitted by the State;
- the oral hearing held on 28 January 2020 at which pleadings were submitted by both parties.
1.2.
Judgment has been given at the hearing today.
2 The facts
On the basis of the documents and the proceedings at the hearing, the following shall be taken as a starting point in these proceedings.
Introduction plaintiffs
2.1.
One of the objectives of the Hunting Association is to look after the interests of its members in so far as they relate to hunting, fauna management and damage control and to make hunting possible by its members in the broadest sense of the word. Natural persons may become members of the Hunting Association. The Hunting Association has approximately 21,000 members, including 800 prospective hunters.
2.2.
A hunter needs a hunting licence that must be renewed annually. Until recently, he had to fill in a WM32 form and cooperate in a background and reference survey and a house visit. Aspirant hunters must follow a training course and pass four exams before a hunting licence can be applied for.
2.3.
One of the KNSA's objectives is to promote the interests of shooting in the most general sense of the word. Legal entities, including sport shooting clubs, can become a member of the KNSA and it has approximately 680 members. Through these members, the KNSA indirectly represents approximately 40,000 sport shooters. Approximately 75% of these sport shooters have their own firearms permit.
2.4.
In order to become a member of a KNSA sports shooting club, a person must first be introduced (a maximum of) three times. After submitting a Certificate of Good Behaviour (hereafter: VOG), a prospective member can become a member for at least six months. During these six months, a so-called ballotage by the sport shooting club in question will take place, with application forms, self-declarations and individual interviews. After at least one year of full membership and (among other things) at least 18 shooting sessions and approval from the club's board, a person can then apply for a firearms permit. Until recently, the application had to be accompanied by a WM32 form. A history, references and home visit also take place within the context of an application for a firearm.
2.5.
2.5. [plaintiff sub 3] , [plaintiff sub 4] and [plaintiff sub 5] had already been in possession of hunting permits for some time. These were revoked - after the e-screener test (more on this below) had been taken - by decisions of the Chief of Police in October 2019, after which their firearms and ammunition were collected from their homes by the police. [plaintiff sub 3] , [plaintiff sub 4] and [plaintiff sub 5] have lodged an administrative appeal against these decisions and have lodged an interim injunction with the Administrative Court. In the context of those administrative interim measures, the abovementioned decisions were suspended for six weeks after publication of the decision on administrative appeal and [claimant sub 3] , [claimant sub 4] and [claimant sub 5] regained access to their weapons and ammunition.
Other facts
2.6.
In the Netherlands, the possession of firearms is prohibited unless the owner has been granted a firearms permit or hunting licence (hereinafter also referred to collectively as a "firearms permit"). Article 7 paragraph 1 under c of the Weapons and Ammunition Act ("Wwm") states that a firearms permit will not be granted if there is reason to fear that possession of a firearm cannot be entrusted to the applicant and paragraph d states that the firearms permit will not be granted if there is reason to fear abuse of firearms or ammunition. Pursuant to Article 3.28 paragraph 3 under a of the Nature Conservation Act ("Wnb"), a hunting permit will be refused if there is reason to assume that the applicant will abuse the authority to possess a gun and ammunition, or use them in such a way that they could pose a danger to themselves, public order or safety.
2.7.
On 9 April 2011, a shooting incident took place in Alphen aan den Rijn (hereafter referred to as: 'the shooting incident') in which seventeen people were injured and seven people were killed (including the shooter). The shooter had been granted a firearms permit.
2.8.
Following the shooting incident, at the request of the Minister of Justice and Security, the Dutch Safety Board (hereafter: "OvV") conducted an investigation into the Dutch system for controlling the legal possession of firearms. The report "Weapon possession by sport shooters, investigation into the system for controlling the legal possession of firearms following the shooting incident in Alphen aan den Rijn on 9 April 2011" from September 2011 made the following recommendations:
"RECOMMENDATIONS
The Council makes the following recommendations
Let interested party provide more information
1. To the Minister for Security and Justice
a. Include a regulation in the law that obliges the interested party to provide more insight into matters concerning his personal situation that are relevant to the assessment of whether there is a fear of abuse. The council recommends a 'reversal of the burden of proof': it is not the police who must prove that he is unfit, but the applicant must prove that he is suitable. For example, a statement from a doctor, a psychological test or a statement from roommates.
b. (…)
(…)
Identify risk indicators and make them applicable
3. To the Minister for Security and Justice
a. Periodically make an inventory of what kind of information about persons can be an indicator for the risk of abuse of a firearm. To this end, at least use experience and knowledge from Dutch and foreign executive practice, as well as the results of scientific studies;
b. Ensure that these indicators are applied when granting permits;
c. Inform the Royal Dutch Shooters Association about these indicators;
d. Develop concrete applicable working methods and methods for obtaining information on these indicators and, in any case, include information from the social environment.
(…)”
2.9.
The State has asked the Trimbos Institute (an independent knowledge institute for alcohol, tobacco, drugs and mental health) to develop a risk assessment instrument that measures and weighs risk factors in order to assess the risks associated with a firearms permit (the E-Screener Psychische Gesteldheid van Wapenverlofan applicants, hereinafter: 'the e-screener'). The Trimbos Institute has involved experts from Tilburg University, UvA, VU Brussels, the Netherlands Institute for Forensic Psychiatry and Psychology, VU Amsterdam, Radboud University and Utrecht University in the development of the e-screener.
2.10.
After its development by the Trimbos Institute, the e-screener has been calibrated and validated by the Netherlands Organisation for Applied Scientific Research (hereinafter: TNO) on behalf of the State. TNO has published a report on this research (the report 'TNO 2018 R10219, Validation E-screening 'Psychic Gesture of Weapon Leave Recipients') and made a number of recommendations. In response to these recommendations, the e-screener has been adapted.
2.11.
The management summary of the aforementioned TNO report states the following about the e-screener:
“(…)
(...) The E-Screener is a digitized questionnaire aimed at measuring 10 risk factors as identified by experts. These risk factors, which together reflect a candidate's mental state, could potentially lead to weapon abuse. Each risk factor is expressed on one scale (category) that consists of a number of items (questions). In total, the E-Screener consists of 10 scales (corresponding with the 10 risk factors) and 99 items. The scales are based on existing and already validated (tested) questionnaires.
(…)
The objective of the validation study is twofold:
1. To determine the suitability of the E-screener as a measuring instrument - given the risk factors identified - to be used by applicants for firearms licences.
2. To identify possible adjustments to the E-screener, for example with regard to scales, items, or the decision rules to determine the final result of the E-screener.
(…)”
According to the management summary, TNO has made a number of recommendations to improve the e-screener before implementation. For example, it recommends adjusting some scales in terms of formulation, the quality can still be improved by adding a personality scale and the order of the questions can still be adjusted according to it. Furthermore, according to TNO it is important to continue to analyse actual data after implementation and, if necessary, to adjust the instrument further on that basis.
2.12.
On 22 March 2016 a proposal to amend (among other things) the Wwm and the Nature Conservation Act, further to the Wnb (hereinafter: the bill) was submitted. This legislative proposal resulted in the Act of 29 May 2017, amending the Weapons and Ammunition Act, the Flora and Fauna Act, and the Nature Conservation Act in connection with strengthening the system to control the legal possession of firearms. This Act came into force on 1 October 2019:
Section 6a of the Wwm. Pursuant to paragraph 1 opening words and under b of this article, firearms permits are only granted - without prejudice to the other applicable requirements - if the applicant for a firearms permit has cooperated in an investigation designated by the Minister to assess whether there is an increased risk of the situation referred to in Article 7, paragraph 1 (c) of the Wwm (reason to fear that the applicant cannot be entrusted with the possession of a firearm); and
Article 3.28a Wnb. Pursuant to paragraph 1 opening words and under b of this section, the hunting licence is only granted - without prejudice to the other valid requirements - if the applicant has cooperated in the investigation designated by the Minister on the basis of Section 6a, subsection 1 (b) of the Wwm.
2.13.
The Explanatory Memorandum to the Bill (Parliamentary Papers II, 2015-2016, 34 432, no. 3) shows that the intention of the provisions referred to above under 2.12. is to implement the OvV's recommendation 1 and that the study refers to the e-screener (which also follows from Section 48a of the Weapons and Ammunition Regulations). It follows from the Wwm and the Wnb that, in principle, the e-screener must only be completed once (by those who already have a firearms permit, upon the first application for a firearms permit and after implementation of the e-screener). With regard to the e-screener, the following is stated in the Explanatory Memorandum, insofar as it is relevant now:
“(…)
In order to enable further weighting to be given to the person and personal characteristics of the applicant, this bill obliges the applicant, as stated above, to cooperate in an investigation to determine whether, on the basis of personality characteristics, personal circumstances or substance use, or a combination thereof, the applicant presents an increased risk of dangerous use or misuse of weapons or ammunition. This investigation will be conducted in the form of a digital questionnaire: the e-screener. Based on the results of this questionnaire, an indication of the applicant's mental state will be given to the chief of police. The permit must be refused if there is reason to fear that the applicant cannot be entrusted with the possession of firearms or ammunition.
(...) The e-screener is a computer-controlled questionnaire, consisting of as many (parts of) validated questionnaires as possible that measure risk factors and perpetrator characteristics. Because many risk factors can be identified, it is important to note that it is not so much a matter of measuring as many risk factors as possible, but rather of looking at specific combinations of risk factors or accumulation of specific risk factors. In addition to the risk factors, specific predator characteristics are important. These include impulsivity, lack of empathy, egocentricity, suicidality, narcissistic injury and extremism. The choice for the risk factors and predator characteristics included in the e-screener is the result of literature research and expert questioning. (…)
(…)
On the basis of established risk profiles, the measured results are weighted. This weighting leads to certain results of the e-screener. The test consists of a number of standard questions as they would also be asked in a psychological test. The weighing of the answers and the value to be given to a weighted combination is carried out by a computer program based on validated algorithms. This gives a quick and efficient judgement that would otherwise have to be given by a psychologist or psychiatrist. In medical science, it is more common for decision schemes based on professional knowledge to be automated.
It is not proposed that a negative indication from the public prosecutor's check of BOPZ data or a negative result from the e-screener inevitably leads to rejection of the application for the authorisation document. Whether or not the authorisation document is granted will continue to depend on the chief of police's assessment of the suitability of the person concerned, with all the information being weighed up. It is also conceivable that, in the event of a negative result from the e-screener, the applicant will have his own investigation carried out and submit the conclusion to the chief of police. Of course, the chief of police will include this information in his assessment of the suitability of the person in question and, if he does come to the conclusion that the applicant cannot be trusted with a firearm, he will have to motivate the fact that the counter evidence provided does not lead to a different assessment. Incidentally, it is not the case that a positive result from the e-screener automatically leads to the permit being granted.
(…)”
2.14.
The e-screener was implemented on 1 October 2019. As of this date, a number of existing permit holders as well as persons who are applying for a first firearms permit were invited by different police districts to fill in the e-screen. The e-screener must be completed at a commercial third party, a general examination centre (namely Lamark). The e-screener must be completed at the test location on a computer, using a computer mouse.
2.15.
In a letter dated 7 October 2019 (Parliamentary Papers II, 2019-2020, 33 033, no. 23), the Minister informed the House of Representatives as follows about the introduction of the e-screener, insofar as it is currently relevant:
“(…)
The e-screener is a digital questionnaire that aims to give advice on the risk assessment of whether someone can be entrusted with a weapon and forms part of the entire permit application. Further information is obtained from a background check, an information form provided by the applicant, the verification of declared referees and a home visit as part of the safe-deposit box check. In accordance with the provisions of the law, cooperation with the e-screener is a mandatory step for the applicant. Failure to do so results in refusal of the leave.
The Trimbos Institute has developed the framework for the e-screener by means of literature study and in consultation with experts. TNO has carried out a calibration study on this and further fine-tuned the e-screener. Adjustments were made on the basis of recommendations by Ipsos (technical) and TNO (substantive). The e-screener was tested on people from a high-risk group, consisting of people with mental disorders, and a low-risk group, consisting of people from a representative sample of the population and people with a firearms licence. The instrument is now ready and was implemented on 1 October 2019.
In practice, all of this means that in the coming months, a number of firearms permit holders and hunting licence holders will be invited to conduct the investigation as part of the application procedure for the (new) grant of their firearms permit or hunting licence. In three years, all of the approximately 60,000 firearms permit holders will be subjected to the investigation once. Applicants for dispensation (art. 4 Wwm) or recognition (art. 9 Wwm) must also purchase the e-screener.
The e-screener is based on validated psychological tests on recognised risk factors for firearms possession. These include alcohol abuse, aggression control and being quickly injured. It is precisely a combination of such factors that quickly casts doubt on the suitability for firearms possession. (...) Partly on the basis of the Supreme Court ruling, I have decided to adjust the calibration of e-screener in such a way that the protection of citizens can be guaranteed in the best possible way, and the risk of abuse of the weapon is minimised.
Due to the legal standard of low doubt, the calibration has been adjusted in such a way that the chance of someone achieving a positive score while a firearms permit should not be considered justifiable is small. However, this does mean that some of the applicants - and those who already have a permit - can have a negative result. Legally speaking, a negative result does not mean an automatic rejection of the permit application, but I did agree with the chief of police that - in accordance with the ruling of the Supreme Court referred to above - the application will be rejected if there are no clear contraindications that place the negative result of the e-screener in a different perspective.
The permit applicant can lodge an administrative appeal against the decision not to grant a firearms permit. In this appeal, an applicant has the opportunity to contest the outcome of the e-screener by submitting further medical or psychological statements that show that he can be entrusted with a firearm.
During the development of the e-screener, I sought cooperation with, among others, the hunters' and marksmen's association. They have informed me that they are not unreservedly happy with the roll-out of this instrument. I will keep a close eye on how the application of this instrument will take place in practice in the coming period. And in a year's time TNO will evaluate the e-screener on the basis of the results of firearms permit holders who have completed the e-screener up to that point (this is approximately 20,000). If necessary, we can make adjustments afterwards or, if necessary, earlier. (...) about this.
(…)”
2.16.
In a letter dated 29 October 2019 (Parliamentary Papers II, 2019-2020, 33 033, no. 23), the Minister informed the House of Representatives as follows about an adjustment to the implementation practice with regard to the e-screener:
“(…)
The e-screener was originally intended to replace the WM-32 form. The operation of the instrument is, as promised to your Chamber at the time of its introduction, closely monitored and evaluated by TNO. The first 300 results show a mixed picture. On the one hand, the operation of the instrument is in line with what was expected as a result of the earlier tests and pilots. On the other hand, it appears that applicants score higher than expected on one of the scales and therefore receive a negative recommendation.
(…)
Problems in the implementation practice made me decide that adjustment is necessary. In the coming year, the e-screener will continue to be designated as a compulsory instrument for new applicants for firearms permits and hunting licences. In total, this concerns a group of approximately 5,000 applicants per year. The existing permits will be assessed in the next two years on the basis of a new (more extensive) version of the so-called WM-32 form. The designation of the legally required research instrument in article 48a of the Weapons and Ammunition Regulations will be modified to this end. Information about possible risk factors will be obtained in a different manner. The considerations that the chief of police must make when granting the permit will remain the same for all cases. I would like to emphasise that the e-screener and/or the WM-32 form is only part of the process, and that a background check and a reference check are also performed, as well as a house check.
This differentiation makes it possible to introduce the e-screener energetically and carefully for all cases. In practical terms, this means that the entire fleet of permit holders will not be screened in three to four years, but in five years. I will discuss with the parties involved how to deal with the current firearms permit holders who have received a negative final opinion on the e-screener. I will look at this on a case-by-case basis.
(…)”
2.17.
On 18 November 2019, the Minister replied as follows to questions from two members of the House of Representatives (TK 2019-2020, Appendix to the Bulletin, 741):
“(…)
As I informed you in my letter of 29 October 2019, the implementation of the e-screener is being adjusted due to problems with implementing organisations police and Justis. This means that only new applicants will be screened with the e-screener over the next two years, existing permit holders will be screened with a renewed WM-32 form over the next two years. After two years, the first tranche of 20,000 existing permit holders will also be screened. As I indicated in my letter of 29 October, the return of firearms will be examined on a case-by-case basis. I distinguish three categories. Applicants who have received a red final result based on a knockout category (psychosis, psychopathy, suicidality) will not be returned firearms. However, applicants who have a red final result due to purely social desirability will immediately receive their firearms back. Applicants who have a red final result due to a combination of factors will receive a differentiated assessment. Weapons remain in custody until the entire process (administrative appeal) has been completed.
(…)
It is by no means the case that a "negative" result should automatically lead to the seizure of weapons and ammunition. The result of the e-screener weighs heavily in the decision that the chief of police must make (in the case of exemptions) when deciding whether or not to grant the requested authorisation document. A decision for immediate seizure is in any case advisable if there are indications of psychosis, psychopathy and/or suicide. But also if there are other indications that justify an intention to refuse/withdraw, direct seizure can be decided for safety reasons. The applicant's leave of absence must be taken into account in the decision to issue the permit. As soon as I learned that a negative score on the e-screener led to immediate seizure in all cases, I informed the police that this was not permitted outside the above criteria.
(…)
Indeed, as you say, a negative result on the e-screener does not automatically lead to a rejection of the application for the authorisation document (intention to refuse). The decision as to whether a power document is granted continues to depend on the opinion of the chief of police. This remains an assessment based on the e-screener or the WM32 form, combined with a background check and a reference check. The leave of absence history will be taken into account. In its judgment, the Supreme Court4 stated that - given the history of the law - the interpretation of the law must be that, against the background of the great importance of safety in society, there is little doubt that it is possible to issue the leave in a responsible manner, there is sufficient reason not to grant a leave of absence or to withdraw it. The condition is that this doubt can be established objectively. For the chief of police and for me, the result of the e-screener is an objectively established value. This can therefore be a decisive factor within the application process, which consists of several elements. Applicants can still lodge an administrative appeal against the decision with Justis by submitting exculpatory documents, such as a doctor's certificate. With the exception of potentially life-threatening situations (psychosis, suicidality, psychopathy), a period of six weeks is allowed for this. If an intention to refuse or withdraw leave is issued, the applicant is given the opportunity to submit all additional information to the chief of police as part of the so-called opinion procedure in order to substantiate his own arguments. This may also include a statement from a doctor. Subsequently, an administrative appeal to Justis is possible against a negative decision of the Chief of Police.
(…)
The person carrying out the e-screener investigations on behalf of the police is instructed to act in accordance with the level of service provided by the police. In concrete terms, this means that people with low literacy and dyslexia are allowed to bring along someone who reads the questions to the person under investigation, under the instruction that no other form of communication takes place under penalty of exclusion. In case of dyslexia more time can be given. This will be monitored by the service provider. If, in the coming year or afterwards, an appeal to this - and any other - additional service to be considered normal is made, as a result of which considerable additional costs are incurred by the service provider, which are passed on to the police, the fees (currently 54.45 euros) will be adjusted accordingly. Provision has already been made for digibites in the sense that instructors from the service provider will give oral explanations in advance about the way in which the investigation will be conducted. Moreover, the aspect of user-friendliness has already been taken into account in the development of the e-screener. Even people with little experience with computers should be able to perform the required actions (clicking a mouse button) without difficulty.
(…)”
2.18.
The (undated) document 'Work Instruction E-screener' from the Minister (on behalf of whom the Director of Police Policy and Task Implementation) to the National Police and Justice states the following, where relevant at present:
“(…)
This concerns an instruction on how to deal with the results of the e-screener (both of the e-screener tests made up to 29-10-2019, and beyond).
1. Instruction
(…)
Leave holders who have an e-screener for the renewal of their leave/yacht certificate
completed
The following instruction applies to existing permit holders who have scored red with the e-screener before renewing their permit or hunting permit and whose permit and/or hunting permit has consequently been revoked if the firearms have already been taken into custody:
Applicants who have scored red on one or more knockout categories (suicidality, psychosis in combination with drug use, psychopathy, admission to a psychiatric institution) must maintain the decision of the chief of police. Weapons remain in custody.
For applicants whose final result was red, without having scored red on one or more of the knockout categories and not only on social desirability, a differentiated assessment applies:
(a) substantiated decisions shall be maintained;
(b) incomplete decisions shall be further complemented in an additional decision, with attention being paid to files in a vovo
For both a and b, the original emergency decisions remain in place. Weapons remain in custody.
For applicants who have only scored red in the social desirability category and have been confronted with a decision to revoke and detain firearms on that basis, the revocation decision will be reversed (e-screener results are not considered valid) and the firearms will be returned immediately. These applicants will be processed again in accordance with the regular procedure, including the completion of WM 32.
This group of applicants will have to fill in a new e-screener when the survey is introduced to the target groups.
(…)
New applicants
(applicants who do not currently have a valid leave of absence and wish to receive one).
For applicants who have scored red on one or more knockout categories, the application will be refused after an intention to refuse.
Applicants who have scored red on one or more of the knockout categories, without having scored red on one or more of the knockout categories, together with other grounds where applicable, will be issued with an intention to refuse.
There are new applicants who did not appear at the appointment to participate in the e-screener's survey, as a result of which they did not cooperate in the survey. An intention to refuse will be drawn up for this applicant.
NB. If they indicate that, on the recommendation of the umbrella organisations, they have recently rejected the
They may be given the opportunity to take the e-screener test after the invitation has expired.
For applicants who have scored green, the regular application procedure will be followed (without using the WM32).
2. Awb procedure (new applicants)
End result red will automatically result in an intention to refuse the leave / hunting permit. In addition to the results of the e-screener, other data such as JD and police data will be collected about the person concerned.
In accordance with the AWB, the applicant will be given the opportunity to be heard as part of the intention to refuse the leave (interview). When giving his opinion, the person concerned has the opportunity to submit contraindications. For example, a doctor's or psychiatrist's statement that the mental state does not interfere with the possession of a firearm. The police will include such a statement in the assessment of the application. If the police officer in charge of the investigation - possibly after consultation with a colleague - is convinced of the arguments put forward by the applicant, it can be decided to revise the previously given opinion in the intention to refuse/revoke.
(…)”
3 The dispute
3.1.
The Hunting Association and the KNSA demand that the State prohibit the use of (the results of) the e-screener and the destruction of these results (or the destruction of these results).
3.2.
To this end, the Hunting Association and the KNSA argue - in summary - the following. The use of (the results of) the e-screener is careless and unlawful and must be prohibited. In addition, the results must be destroyed. According to the Hunting Association and the KNSA, the reasons for this are as follows:
the soundness of the e-screener has not been assessed and demonstrated;
the invitation to the e-screener is misleading;
appropriate provisions have not been made for persons with disabilities and its implementation is contrary to the Equal Treatment Acts;
the e-screener does not meet the basic requirements of a medical examination;
the e-screener does not meet mandatory requirements relating to medical treatment;
the e-screener infringes the fundamental principle of equality of arms;
the result is used as a final conclusion rather than as an aid;
persons applying for new leave should be treated on this equal footing with existing permit holders applying for an extension (and not subject to the e-screener test, but a (modified WM32 form);
the e-screener violates the General Data Protection Regulation (AVG);
the e-screener contravenes the Police Data Act.
3.3.
All plaintiffs request the State to provide them with copies of the following documents:
i. all documents available to the State from the Ministry of Justice and Security, Trimbos, TNO, GfK and COTAN as of 27 September 2012 relating to the following questions about the e-screener:
1. what are the theoretical backgrounds (what is measured?);
2. data on psychometric reliability;
(3) data on psychometric validity;
(4) data on how a caesura has been determined (i.e. how it has been determined when a person complies or does not comply);
(5) whether this form of sampling has been assessed as satisfactory (probability of faking?);
6. whether the questionnaire is fair for certain groups (e.g. elderly-young people);
Has the test been submitted to COTAN?
the questions that make up the e-screener;
the processing agreement with TNO and the sub-processing agreements that TNO concluded with the subcontractors;
the first ('maximally complete') draft report on the research carried out by TNO into the e-screener from on or about 8 January 2018;
the final validation report of TNO from on or about 29 January 2018;
(the documents from the tender for) the (contract) agreement(s) with the institute that carried out the tests;
the work instruction(s) to the police and/or the chief of police for the implementation of the e-screener that will apply as of 1 October 2019.
Furthermore, all plaintiffs claim that the State be ordered to pay the costs of the proceedings.
3.4.
In support of their claim for the delivery of the documents, plaintiffs argue that they intend to start proceedings on the merits against the State in a relatively short period of time, in which they will claim compensation for the damage suffered and the definitive cessation of the use of (the results of) the e-screener. In these proceedings on the merits, final judgment must have been given no later than prior to the intended reintroduction of the e-screener for existing permit holders. The requested documents are needed to enable plaintiffs to have one or more experts investigate the functioning of the e-screener and the way in which it has been introduced and applied, and to further demonstrate its unlawfulness. The Hunting Association and the KNSA also have an interest in the requested documents for administrative law proceedings that they conduct or support on behalf of victims. [plaintiff sub 3] , [plaintiff sub 4] and [plaintiff sub 5] have an interest in the documents claimed prior to the decision on the administrative appeal filed on their behalf.
3.5.
The State will defend all claims, which will be discussed below to the extent necessary.
4 The assessment of the dispute
In advance
4.1.
In the Netherlands it is forbidden to possess weapons. Pursuant to the Wwm and the Wnb, an exception to this prohibition can be granted and a permit can still be granted to own a firearm. The State's authority to grant a firearms permit must be used very carefully because of the risks associated with owning a firearm. In addition, a firearms permit based on Section 7 paragraph 1 of the Wwm will not be granted if there is reason to fear abuse of firearms or ammunition. A similar provision applies to the hunting permit, since Article 3.28 paragraph 3 under a of the Wnb stipulates that a hunting permit will be refused if there is reason to assume that the applicant will abuse the authority to have a gun and ammunition at his disposal, or will use them in such a way that they could pose a danger to themselves, public order or safety. According to established case law of the Administrative Jurisdiction Division of the Council of State and also on the basis of recent civil case law (HR 20 September 2019 (ECLI:NL:HR:2019:1409) on the shooting incident), the aforementioned grounds for refusal are interpreted broadly. Due to the great importance of the safety of society (for the protection of which the rules that govern the authority to grant the firearms permit apply), there is already little doubt about the justification for not granting or revoking a firearms permit, provided that this doubt can be objectively established.
Prohibiting the use (results) of e-screener and destroying results of e-screener
a. General
4.2.
In these interlocutory proceedings, it is first of all for the purpose of assessing whether there is reason to prohibit the State from continuing to use the (results of the) e-screener and to destroy the results gathered so far with the e-screener.
4.3.
The Court in preliminary relief proceedings understood the claim to prohibit the State from still using the (results of the) e-screener in such a way that the Hunting Association and the KNSA intend that the use of the e-screener itself, and of the results obtained in the meantime, will be prohibited for the time being, pending the outcome of proceedings on the merits. After all, a more far-reaching claim would no longer concern an order measure and would therefore go beyond the scope of summary proceedings. In assessing this claim, the criterion is whether the (manner of) introduction of the e-screener and its further use is so careless - and therefore unlawful - that its use must be stopped immediately. The urgent interest in such a prohibition must also be taken into account, as well as the question whether it is so likely that a court on the merits will rule in line with the plaintiffs' assertions that it is justified to pre-empt the decision of the court on the merits with an interim injunction.
4.4.
The Court in preliminary relief proceedings considered first of all that the above test implies that there must be obvious carelessness in the introduction of the e-screener and/or its use, which makes it necessary to discontinue its use provisionally with immediate effect. This obvious carelessness must extend beyond the fact that in individual cases, according to the person concerned, something did not go quite right when filling in the e-screener. The mere fact that some data subjects (including [claimant sub 3] , [claimant sub 4] and [claimant sub 5]) do not agree with the results of the test taken, cannot be a reason for granting the claim either. Indeed, for such individual cases, the route of administrative objection and appeal is open, with the possibility of applying for (administrative) interim relief in urgent cases. All three individual plaintiffs have also made use of this procedure, which has led to the suspension of the decisions taken against them for the time being. This means that they do not in fact have an urgent interest either. Only if there is a situation in which the State systematically acts negligently in the sense of unlawfulness by enforcing the e-screener can there be reason to grant (one of) the claimed order measures.
b. Soundness of the e-screener
4.5.
Following the shooting incident and the subsequent investigation by the Public Prosecutor's Office, the State wanted to redesign the assessment of the mental state of the applicant for a firearms permit in order to complete the test laid down in Article 7 paragraph 1 under c of the Wwm and Article 3.28 paragraph 3 under a of the Wnb. This is a power that is vested in the State. Therefore, the remark made by the Hunting Association and the KNSA that there was no reason to do so, because there was already a well-functioning system in place (for example, by filling in the WM32 form for a new application and for renewals) can remain undiscussed - whatever they say - since this does not affect the authority of the State to start using a new system. The mere fact that international regulations do not require the introduction of a means such as the e-screener is not decisive in the context of this assessment either.
4.6.
The State called in the Trimbos Institute for the development of the intended new tool (the e-screener), which the State has been using since 2012 and which was also discussed with the Hunting Association and the KNSA from the outset. The Court in preliminary relief proceedings established that the Hunting Association and the KNSA did not dispute the Trimbos Institute's expertise in the field of mental healthcare and the use of digital instruments in that area. Nor have the Hunting Association and the KNSA disputed that the Trimbos Institute involved many experts in the development of the e-screener (according to the undisputed assertion of the State, "a group of eighteen high-school graduates, PhDs and other experts", including experts from Tilburg University, the University of Amsterdam, the Free University of Brussels, the Netherlands Institute for Forensic Psychiatry and Psychology, the Free University of Amsterdam, Radboud University and the University of Utrecht). Finally, the Hunting Association and the KSNA also did not sufficiently substantiate that the e-screener is a tool that can be used to evaluate the application for a firearms permit and that the development of the e-screener by the Trimbos Institute took place in a sound manner. All in all, the Hunting Association and the KNSA have not provided sufficient grounds to assume that the e-screener has not been properly developed by the Trimbos Institute.
4.7.
The statements made by the Hunting Association and the KNSA based on statements to the contrary by Prof. Dr. [A] , professor of Legal Knowledge Management at the University of Amsterdam (hereinafter: '[A]') do not detract from this. According to the Hunting Association and the KNSA, one of the things [A] states about the e-screener is that scientific research has not shown a correlation that links a psychological characterisation to (un)actual use of firearms and that the amount of data in the Netherlands is so small that it is practically impossible to investigate such a correlation. According to [A], the conviction that such a relationship exists is not supported by any scientifically substantiated evidence and therefore the use of the e-screener in the current context of use is unsound. However, these statements by [A] do not benefit the Hunting Association and the KNSA. Apart from the fact that the aforementioned group of experts apparently thinks differently about the value of such a test, plaintiffs ignore the fact that the test does not provide 100% certainty, but aims to estimate risks based on validated tests, and that a firearms permit must already be refused in accordance with the law if there is reason to fear that the applicant cannot be entrusted with the possession of a firearm, or if there is reason to fear that the firearms may be misused. This fear of abuse must be interpreted broadly, with even a small amount of doubt being sufficient reason to refuse a firearms permit. It is true that this slight doubt must be objectively verifiable, but the empirical evidence required by [A] - which is (fortunately) not available simply due to a lack of incidents in the Netherlands - is not required.
4.8.
Incidentally, the main objection of plaintiffs to the e-screener appears to relate to the validation and calibration of the e-screener. In their opinion, this can clearly not be correct, which is also demonstrated by the fact that several members who took the test scored negative, while they had previously been granted a firearms permit. However, plaintiffs also fail to recognise that it cannot be excluded in advance that (part of) these negative results are justified, or at least that these results justifiably raise reasonable doubts about the continued suitability for a firearms permit. In the context of the question about the reliability of the e-screener, the Hunting Association and the KNSA also argued that the validation and calibration was so careless that the introduction of the use of the e-screener was premature. According to the Hunting Association and the KNSA, the intention was for a total of 500 people to fill in the e-screener for the purpose of validation and calibration, including a group of 300 permit holders, while in the end the e-screener was used by only 100 permit holders. In addition, because social media called for the e-screener to be tested, people who have no experience with computers were not or hardly represented. Furthermore, according to the Hunting Association and the KNSA, it appears from the findings of TNO itself (laid down in the Management Summary TNO Report: TNO 2018 R10219, Validation E-screening 'Psychic Gesture of Firearms permit applicants' submitted by the State) that TNO also felt that the e-screener was inadequate, for very fundamental reasons, with TNO making recommendations to develop a fundamentally different system.
4.9.
The Court in preliminary relief proceedings did not follow plaintiffs in this respect. The TNO management summary referred to by the Hunting Association and the KNSA shows that in the context of validation and calibration, TNO purchased the e-screener from 513 participants, divided into two groups: a high-risk group (107 participants) and a low-risk group (consisting of a representative group (303 participants, random sample from the Dutch population) and current owners of a firearms permit (103 participants). The management summary does not indicate that the e-screener was filled out by too small a group or not enough permit holders. On the contrary, the report mentions a "great distinguishing capacity". If TNO had actually judged that the numbers would have been too small to be able to validate, this would certainly have been stated in its report. Contrary to the arguments of the Hunting Association and the KNSA, the management summary also does not suggest that TNO is of the opinion that the e-screener is inadequate. It is true that TNO makes some comments, but they are not of such a nature that it can be deduced from this that the e-screener cannot be used as a tool to assess whether a firearms permit can be granted. It has also been taken into account that TNO has made some recommendations for improvement as a result of its investigation and that the State has stated reasons for adopting these recommendations. For the time being, the Court in preliminary relief proceedings has no reason to doubt this statement by the State.
4.10.
Based on the above, the Court in preliminary relief proceedings assumes that the e-screener has been sufficiently validated and calibrated by TNO. The fact that TNO has recommended that the use of the e-screener be monitored in the coming period in order to see whether recalibration will be necessary after a certain period of time and that the State has promised to do so. Also with respect to this promise the Court in preliminary relief proceedings has no reason to doubt that the State will honour this promise. In this context, it was also taken into account that the monitoring has already had an effect. After all, it turned out fairly quickly that among the population of hunters and marksmen a more than expected large number appeared to score high on the test item 'socially desirable answers' and therefore scored negative. The State, in consultation with TNO, is in the process of introducing a different approach with regard to this point and as soon as it was clearly decided that existing permit holders who have lost their firearms permit on the basis of a red score with regard to the social desirability will immediately receive their firearms back. In agreement with the State, the Court in preliminary relief proceedings is of the opinion that such adjustments may be inherent to the introduction of a new screening method, as TNO has also indicated; however, this does not make the introduction itself unlawful. Incidentally, by implementing the desired modifications immediately, the State has also sufficiently ensured the responsible application of the e-screener.
4.11.
The conclusion is that within the scope of these preliminary relief proceedings and also taking into account the strict test described under 4.1 when assessing the application for a firearms permit (for which the e-screener is an aid), it has not become plausible that the soundness of the e-screener was insufficiently assessed and/or demonstrated. In this state of affairs, the alleged inadequacy cannot be a ground for granting the claimed in preliminary relief proceedings. This is not altered by the fact that the State was not prepared to provide the insight required by the Hunting Association and the KNSA into the exact method of validation and calibration. This information was not required for the assessment of the reliability of the e-screener within the scope of summary proceedings, or at least the State disputed the statements of the Hunting Association and the KNSA in this regard, even without this information.
4.12.
In view of the above, the Court in preliminary relief proceedings saw no reason to accept the State's offer to prove its claim (that the e-screener is a suitable means for investigating whether there is reason to doubt an applicant's suitability for trusting a firearm and making an exception to the ban on having firearms) by means of an expert report. It was also taken into account that, in principle, interim injunction proceedings do not lend themselves to proof by means of an expert's report and that the Hunting Association and the KNSA did not demonstrate at the hearing that they wanted such an expert's report in the context of these interim injunction proceedings, at least not if it was not also determined or agreed that the e-screener would not be used for the time being.
c. Invitation e-screener
4.13.
The objections of the Hunting Association and the KNSA about the invitation to fill in the e-screener all relate to the invitation for existing permit holders. Now that the State has decided not to use the e-screener with existing permit holders for the time being, the objections relating to the invitation for existing permit holders cannot lead to the claimed order measure being granted in preliminary relief proceedings. These objections can therefore be left undecided.
d. Provisions for persons with limitations / equal treatment laws, final conclusion or aid)
4.14.
The Hunting Association and the KNSA have argued that the invitation and the refusal or withdrawal of leave based on the results of the e-screener violates various laws on equal treatment and is discriminatory. Of the existing permit holders, only persons of a certain age were invited, which - in their opinion without justification - discriminated on the basis of age. In addition, the implementation of the e-screener does not take into account dyslexic persons, persons with a memory impairment or digibites. Due to their limitations, these people will have difficulty filling in the e-screener correctly, which means that they will score "red" rather than less suitable to have a firearms permit, according to the plaintiffs.
4.15.
The objection regarding the age of the existing permit holders can remain undiscussed, now that existing permit holders are no longer invited to the e-screener. The other objections raised by the Hunting Association and the KNSA relate to problems with the implementation of the e-screener. The explanation provided by the State in these preliminary relief proceedings, as well as the Minister's answer to the parliamentary questions on 18 November 2019, show that the State pays attention to this type of implementation problem and makes adjustments where necessary. For example, it has been indicated that an instruction has now been issued that, in the event of dyslexia, more time can be given to the e-screener, that (reading) guidance can take place if necessary, and that extra provisions have also been made for digibites. The fact that these aspects may not always have been dealt with optimally in the initial phase does not, in so far as this has been established, mean that the current modified working method is not unlawful, which necessitates an immediate ban on further use of the e-screener. Incidentally, it is inherent in the introduction of a new system that unforeseen aspects may be encountered in the initial phase. Now that all attention has been paid to this and the Minister has shown willingness to make changes where necessary, there is no question of unlawfulness in this respect. Moreover, where things have gone wrong in individual cases or will go wrong for some reason, the way is open for objections and appeals. In any event, these individual cases do not justify the allocation of the requested, far-reaching order measures in view of the great social importance involved with the e-screener.
d. Medical examination / medical treatment
4.16.
Unlike the Hunting Association and the KNSA, the e-screener does not conflict with the Medical Examinations Act. As the State rightly - and undisputedly - states, the scope of the Medical Examinations Act in Article 1(a) of that Act is limited to examinations in connection with entering into or amending a civil-law employment relationship or appointment to public service and examinations in connection with entering into or amending certain insurances referred to in the Act. The e-screener is not used in connection with any of these purposes and there can therefore be no conflict with the Medical Examinations Act when using the e-screener.
4.17.
The assertions concerning the conflict with the provisions of the Civil Code concerning the medical treatment agreement are of the same fate. For the time being, the provisions on the medical treatment agreement do not apply to the e-screener, simply because they require that a medical act be performed by a care provider in the exercise of a medical profession or business. Lamark - where the e-screener is purchased - cannot be regarded as such a care provider, nor can the Trimbos Institute or TNO.
e. Equality of arms
4.18.
The Hunting Association and the KNSA argue that it is impossible for applicants who are subjected to the e-screener to find out how it works and what the conclusions are based on. The e-screener's questions are not made public and the method of calibration is not known. Not even for the chiefs of police. One is confronted with the conclusions, similar to an assessment based on a secret file. One cannot defend oneself against this and a judge cannot establish whether the conclusions are justified. According to the Hunting Association and the KNSA, this state of affairs violates fundamental (human) rights, including the principle of 'equality of arms' in Article 6 of the ECHR.
4.19.
The Court in preliminary relief proceedings did not follow plaintiffs in this case either. After all, the State substantiated and sufficiently explained why it has an interest in the confidentiality of information about the exact operation of the e-screener, the questions asked by the e-screener and its calibration. According to the management summary of TNO, TNO is also of the opinion that part of the information must remain confidential. The summary states: "In view of the application purpose of the e-screener it is important that the target group has no knowledge of the specific operation of the instrument. The details of the study are therefore described in a confidential report". The State has explained that if this information does become known, there is a possibility that experts in the field of behavioural sciences will develop training courses in preparation for undergoing the e-screener. This would make the e-screener actually unusable. In agreement with the State, the Court in preliminary relief proceedings is of the opinion that the State thus has a legitimate interest (in the context of these preliminary relief proceedings) not to provide the relevant documents to plaintiffs. This does not constitute a violation of Article 6 ECHR, either in these interlocutory proceedings or otherwise. Apart from the fact that security reasons may be a legitimate reason that certain information is known to the State and is not known to the Hunting Association and the KNSA and that this does not automatically constitute a violation of Article 6 of the ECHR, the law also provides for possibilities to obtain a judicial review from the e-screener in spite of this. Within the scope of a preliminary expert report, the court can, for example, assess the extent to which the State must still provide the information in question, possibly subject to conditions of confidentiality. In cases of individual applicants for firearms permits, the administrative court can apply the same assessment based on Article 8:29 of the General Administrative Law Act. Incidentally, it emerged during the hearing that the Minister is aware of the limited information that is currently provided about the results of the e-screener. It is currently being investigated whether it is possible, for the purpose of providing evidence to the contrary, to provide the person concerned with the percentages of the results of the e-screener by means of a report by their own expert (e.g. a doctor, psychiatrist or psychologist).
f. Final conclusion instead of aid
4.20.
The Hunting Association and the KNSA have argued that the results of the e-screener are wrongly used as the final conclusion, whereas the e-screener was only intended and developed as a tool. Nevertheless, engagements were withdrawn and not granted solely on the basis of the results of the e-screener. In doing so, the plaintiffs breached the principle of the right to a fair hearing (no opportunity to submit views).
4.21.
The Court in preliminary relief proceedings put first and foremost that it appeared to be sufficient that at the outset decisions were taken that were exclusively based on the (negative) results of the e-screener and that the parties involved were not given the opportunity to express their views and/or provide evidence to the contrary in advance. This is clearly contrary to the intention of the e-screener and contrary to the relevant provisions of the General Administrative Law Act. However, the Court in preliminary relief proceedings was of the opinion that this was (or was) the result of so-called implementation problems. Here too, the Minister has taken this into account and has now clarified this in the work instruction. The e-screener work instruction now submitted explicitly states that part of the application procedure must include an intention to refuse prior to any refusal. This gives the applicant the opportunity to provide evidence to the contrary - in the form of his own expert report or otherwise - which the chief of police must take into account when assessing the application. The Court in preliminary relief proceedings is therefore of the opinion that only the e-screener is used permanently and structurally as a final conclusion instead of as an aid. As a result, there is no place for granting the claimed order measure, since for individual cases the way of objection and appeal is open where appropriate. This is not altered by the instruction in the e-screener work instruction that of applicants who have scored red on one or more knockout categories, the application will be refused after an intention to refuse. After all, the intention to refuse always gives the applicant the opportunity to provide evidence to the contrary and it is unreasonable to assume that the chief of police will not (or does not have to) take this evidence into account.
g. Equal treatment of new applicants / existing permit holders
4.22.
The Hunting Association and the KNSA argue that the State is acting in violation of Section 28 paragraph 4 of the Wwm by only executing the e-screener for a period of two years on applicants for a new permit and that this constitutes unjustified unequal treatment of new applicants compared to existing permit holders.
4.23.
This argument does not succeed. There is no unequal treatment of comparable applicants. Existing permit holders cannot simply be put on an equal footing with new applicants now that they have already been granted leave. It is not clear why the mere fact that it has now been decided, on pragmatic grounds, to introduce the e-screener in stages and start with the new applicants would be unlawful. This is all the more compelling given that existing permit holders will eventually also be subject to the e-screener.
h. AVG and Police Data Act
4.24.
In the conclusion of the reply, the State stated, with reference to the Explanatory Memorandum to the Amendment to the Police Data Act and the Judicial and Criminal Procedure Data Act to implement European legislation on the processing of personal data for the purpose of the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties (Parliamentary Papers II, 2017-2018, 34889, no. 3), that the data processing associated with the e-screener is not subject to the Police Data Act but to the AVG. The Hunting Association and the KNSA did not contradict this assertion and did not invoke the Police Data Act during the hearing. The Court in preliminary relief proceedings therefore assumed that the Hunting Association and the KNSA no longer uphold their assertion that the e-screener violates the Police Data Act.
4.25.
Contrary to the assertions of the Hunting Association and the KNSA, the processing of personal data for the purpose of using the e-screener is indeed lawful. Pursuant to Article 6 paragraph 1 opening words and under c AVG, the processing of personal data is lawful if the processing is necessary to comply with a legal obligation. This requirement has been met since the chief of police is legally obliged to use the e-screener for the evaluation of an application for a firearms permit (Article 6a of the Wwm / 3.28a Wnb). The statements made by the Hunting Association and the KNSA that this processing contravenes the principle of proportionality and the principle of subsidiarity were insufficiently substantiated, also in light of the strict test that applies to the application for a firearms permit.
4.26.
In the context of their statements about the AVG, the Hunting Association and the KNSA also invoked Article 15 and Article 22 of the AVG. These articles provide that the data subject can obtain a definite answer from the data controller about whether or not his or her personal details are processed and whether or not they can be accessed, and that the data subject has the right not to be subjected to a decision based solely on automated processing that has legal consequences. The fact that data subjects themselves cannot request information on the basis of Article 15 of the AVG has not become apparent. Insofar as an individual data subject does not receive a satisfactory response, which has not been proven in this case, he or she is entitled to the appropriate legal procedure. This therefore does not justify the granting of far-reaching order measures. With regard to the invocation of Article 22 of the AVG, it also applies that, as has already been considered in section 4.21 above, the decision regarding the firearms permit is not made solely on the basis of the results of the e-screener. In addition, the decision is always made with the intervention of the chief of police. Therefore, there is no question of a decision based solely on automated processing.
4.27.
To the extent that the Hunting Association and the KNSA (also) base their claim to annul the results of the e-screener on Article 17 paragraph 1 opening words and under d AVG, the Court in preliminary relief proceedings considered that, on the basis of that article, a data subject has the right - under circumstances - to request the deletion of data. However, the claim to nullify the e-screener's results is - as is explicitly evident from the summons - exclusively filed by the Hunting Association and the KNSA, and they cannot be regarded as data subjects within the meaning of that article. Incidentally, apart from that, deletion is also not an issue in the individual cases, since this is a definitive measure for which there are, for the time being, insufficient grounds.
i. Final sum
4.28.
It follows from all the above that the State has and will continue to have a substantial and legitimate interest in the introduction of e-screening. The State has acknowledged that it has encountered a number of practical problems in this respect and that there are or have been implementation problems. Unfortunately, this is often inherent in the introduction of a new system. However, this does not mean that the e-screener should not have been introduced, nor that it should still be banned with immediate effect. In view of the strict standard that applies when granting a firearms permit and the recent ruling of the Supreme Court in relation to the shooting incident, the State is obliged to make an objective assessment of the risks associated with firearms permits. By engaging experts, the Supreme Court has developed a tool that should contribute to this. The State monitors (in consultation with TNO) the use of the e-screener and its effects and, if necessary, adapts the working method and/or system. In doing so, the State is acting lawfully. There is therefore no reason to take an orderly measure to prohibit the State from using the (results of the) e-screener any longer. The claim to order the State to nullify the results of the e-screener (or have them nullified) will suffer the same fate on the basis of the above (apart from the fact that this is an irreversible measure for which there is no place in preliminary relief proceedings).
Documents to be provided
4.29.
Article 843a of the Code of Civil Procedure allows a party to take note of documents which are not in its possession, but which are in the possession of another party. An action brought on the basis of this article is, except in the cases referred to in the third and fourth paragraphs of this article, assignable if it concerns documents specifically drawn up by the plaintiff that relate to a legal relationship to which he (or his legal predecessor) is a party, and the plaintiff has a legitimate interest in inspecting, or a copy or extract of, those documents. Paragraph 4 provides that the person who has the documents in his possession or has them under his custody does not have to provide inspection of these documents, or a copy or extract thereof, if there are compelling reasons for doing so. Whether in a specific case there is such a compelling reason invoked that must lead to the dismissal of the claim or application with regard to confidential information, must be decided by the court, weighing up all the interests involved. It is for the party relying on the existence of such a compelling reason to establish and, if necessary, demonstrate the nature of the information in respect of which it alleges the existence of an interest in confidentiality and, if necessary, the nature of that interest. In doing so, the statement must be so specific that the court can rule on the legitimacy of the appeal (HR 26 October 2018, ECLI:NL:HR:2018:1985, paragraph 3.4.2).
4.30.
With respect to the documents claimed under vi (the tender documents), the State stated that these documents had already been provided to the Hunting Association and the KNSA by the Wob Decree of 25 March 2019. Plaintiffs dispute this, but have not substantiated this dispute any further. In view of this and now that plaintiffs have also failed to substantiate their legitimate interest in having the tender documents at their disposal, the claim on this point will be rejected.
4.31.
The State has contested the existence of the claimed documents under iii (the processing agreement with TNO and the sub-processing agreements concluded by TNO with its subcontractors). The claimants did not raise any objections to this contestation and therefore the claim on this point will also be rejected.
4.32.
In granting the claim for the issue of the work instructions (sub vii), plaintiffs no longer have any interest since the work instructions were submitted by the State in these summary proceedings. This claim will also be rejected.
4.33.
The other documents claimed all relate to the content and operation of the e-screener. The State has sufficiently demonstrated that it has important reasons not to grant access to these documents, because these documents - in order to prevent the operation of the e-screener from being undermined - must remain confidential (cf. section 4.19). Under these circumstances, the State cannot be required to provide access to these documents. The plaintiffs' undertaking that they will treat the documents concerned confidentially does not make this any different. It is understandable that the State - without any safeguards - does not consider this oral undertaking to be sufficient in view of the interest of the State. On top of this, plaintiffs do not need the delivery of these documents in order to reach the goal they set, because the State promised at the hearing to cooperate, if desired, with a preliminary expert's report, with the associated (confidentiality) guarantees. In this way the plaintiffs can also achieve their intended goal - to have a substantiated report drawn up by an expert on the e-screener - for the purpose of any proceedings on the merits.
Litigation costs
4.34.
Since all the claims of the plaintiffs are rejected, they are - as the unsuccessful party - ordered to pay the costs of these proceedings.
5 The decision
The preliminary relief judge:
5.1.
rejects the claims;
5.2.
orders the Hunting Association and the KNSA jointly and severally to pay the costs of these proceedings, so far estimated by the State at € 1,619, of which € 980 in the form of a lawyer's salary and € 639 in the form of a court registry fee;
5.3.
declares this order to pay costs enforceable on a provisional basis.
This judgment was rendered by S.J. Hoekstra-van Vliet and pronounced publicly on 11 February 2020.
idt
