NSA - III OSK 1522/21
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| NSA - III OSK 1522/21 | |
|---|---|
 | |
| Court: | NSA (Poland) |
| Jurisdiction: | Poland |
| Relevant Law: | Article 4(1) GDPR Article 47 of the Polish Constitution Article 5(2) Act on Access to Public Information |
| Decided: | 03.11.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | III OSK 1522/21 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Polish |
| Original Source: | NSA (in Polish) |
| Initial Contributor: | n/a |
The Polish Supreme Administrative Court ruled that a public information access request should be refused or limited to the extent that the requested information contains personal data of individuals, which cannot be effectively anonymised.
English Summary
Facts
The plaintiff applied to the District Police Chief (the defendant) for access to public information, namely footage of a video recording taken during vehicle and traffic control carried out by the police on 17 February 2017. By decision of 29 December 2017, the defendant refused to provide access to the entire recording, including the requested car registration numbers available on the footage. The decision was substantiated by the obligation to protect the personal data of individuals visible on the recording. Moreover, given that the plaintiff requested access to the data in the form of digital files - the obliged authority was not in a position to ensure adequate and irreversible anonymisation of the data. Upon receipt of the request for public information, the obliged authority verified it accordingly, then notified the applicant in writing, without issuing a separate administrative decision.
The plaintiff objected to this decision first internally at the defendant authority, then in court. The court of first instance determined that the information requested by the plaintiff constituted, in principle, public information. In that judgment, the court also stated that such a broadly defined request covering, inter alia, "material from the video recorder mounted in the car belonging to the KPP - may include data infringing the privacy of natural persons". The court ruled that the defendant was right in refusing the request based on protection of personal data.
Subsequently, the plaintiff filed a cassation appeal requesting that the judgment be set aside in its entirety and ruling on the merits by setting aside the decision and the preceding decision.
Holding
The Supreme Administrative Court recalled the first instance ruling. It stated that the video recorder recording contained images of the persons controlled, as well as the registration numbers of the vehicles subjected to roadside checks, which would make it possible to identify those persons. This would consequently violate Article 47 of the Polish Constitution, which imposes an obligation on public authorities to protect the privacy of the individual against unjustified interference.
Consequently, the Court held that effective protection of the privacy of the persons being inspected, including the vehicles they drive, requires security that completely prevents their identification. This also applies to vehicle registration numbers, knowledge of which may lead to the identification of the persons being inspected. Accordingly, pursuant to Article 5(2) of the Act on Access to Public Information, the right to public information is subject to restriction on the grounds of privacy of an individual or professional secrecy.
However, the court of first instance erroneously considered that the content of the registration plate constituted personal data. The Court recalled the opinion expressed in the judgment of the Supreme Administrative Court of 14 May 2021, ref. no. III OSK 1466/21, which stated that "the registration number of a car is not subject to protection stemming from the right to privacy, as it identifies the car and not the person, it should be referred to cases of standard registration numbers consisting of letters and numbers, which do not allow associating the car with its owner and to cases in which the car with a registration plate is located or presented without being connected with other information relating to the space-time or in connection with other personal data, including the image of the persons travelling with it". Pursuant to Article 4(1) GDPR, personal data refers to information about natural persons, not vehicles. According to the Court, data relating to a car does not constitute information referred to in Article 4(1) GDPR if the identification of the car owner can only be made through access to relevant registers or catalogues.
At the same time, the images of persons in the recording constituted personal data and should be protected under the right to privacy and data protection. Hence, if the footage could not be irreversibly anonymised, the defendant was correct in refusing the request.
In conclusion, the Court held that the appealed judgment, despite its partially erroneous justification, corresponded to the law. Therefore, the appeal was dismissed.
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English Machine Translation of the Decision
The decision below is a machine translation of the Polish original. Please refer to the Polish original for more details.
Date of the judgment
2022-11-03 the decision is final
Date of receipt
2021-01-04
Court
The Supreme Administrative Court
Judges
Mariusz Kotulski
Przemysław Szustakiewicz / chairman-rapporteur /
Rafał Stasikowski
Symbol with description
6480
Thematic slogans
Access to public information
Ref. linked
II SA / Sz 12/19 - Judgment of the Provincial Administrative Court in Szczecin of 2019-02-28
The appealed authority
Police commander
Result content
The cassation appeal was dismissed
Cited regulations
Journal of Laws 2016 item 1764 art. 5 sec. 2, art. 14 sec. 2
Act of September 6, 2001 on access to public information - consolidated text
Sentence
Supreme Administrative Court composed of: Chairman: Judge of the Supreme Administrative Court Przemysław Szustakiewicz (spoken) Judges: Judge of the SAC Rafał Stasikowski Judge del. WSA Mariusz Kotulski, after considering on November 3, 2022, at a closed session in the Chamber of General Administration, the cassation complaint from A.P. against the judgment of the Provincial Administrative Court in Szczecin of February 28, 2019, file ref. no. II SA / Sz 12/19 on the complaint of A.P. against the decision of the Provincial Police Commander in Szczecin of 12 December 2018, No. [...] on the refusal to disclose public information 1. dismisses the cassation appeal; 2. Judges A.P. for the benefit of the Provincial Police Commander in Szczecin the amount of PLN 240 (two hundred and forty) as reimbursement of the costs of the cassation proceedings.
Justification
The Provincial Administrative Court in Szczecin by the judgment of February 28, 2019, file ref. no. II SA / Sz 12/19, dismissed the complaint of A.P. against the decision of the Provincial Police Commander in Szczecin of 12 December 2018, No. [...] on the refusal to disclose public information. The justification indicates the following factual and legal status of the case:
A.P. with the application of February 18, 2017, he applied to the Poviat Police Commander [...] for disclosure of public information, inter alia, in the form of a video recorder material installed in a car of the brand [...] with the registration number [...] used in the KPP [...] in the form of recordings of the full service record on February 17, 2017.
By a decision of 29 December 2017, the Poviat Police Commander [...] refused to provide the applicant with access to public information regarding the entire recording of a video recorder installed in a company car of the brand [...] with a registration number [...] with a device [... ] factory number [...] used in the KPP [...] of February 17, 2017, which was upheld by the Provincial Police Commander in Szczecin by decision of January 30, 2018.
Provincial Administrative Court in Szczecin, by the judgment of 23 May 2018, file ref. no. II SA / Sz 357/18 repealed the above decisions, pointing to the lack of application by the authorities in the case of Art. 16 sec. 2 point 2 of the Act of 6 September 2001 on access to public information (Journal of Laws of 2016, item 1764 as amended; hereinafter "u.d.i.p.").
As a result of the re-conducted procedure, the Poviat Police Commander [...], after personally analyzing the recording, stated that during the service performed by officers of the Poviat Police Headquarters [...] on February 17, 2017, a total of seven (7) ) roadside checks, including roadside checks of the applicant. The above-mentioned road checks according to the recording time on the video material took place at the following times on February 17, 2017:
- 13:55 - roadside check of the vehicle,
- 14:14 - roadside check of the vehicle,
- 14:30 - roadside check of a cyclist,
- 14:33 - roadside inspection of the applicant's vehicle,
- 15:51 - roadside check of the vehicle,
- 18:45 - roadside check of a cyclist,
- 18:59 - roadside check of the vehicle
- 19:36 - roadside check of the vehicle.
Further, the Poviat Police Commander [...] explained that the registered material contains images of at least four (4) people who were subject to interventions, as well as other passers-by and at least five registration numbers of controlled vehicles. The data of persons and vehicles against whom the officers of the Poviat Police Headquarters [...] intervened, are contained in official notebooks, the anonymised photocopies of which were provided to the applicant in separate letters. In the opinion of the authority of the first instance, the full disclosure of the requested recording of February 17, 2017 will violate the privacy of persons against whom police officers of the KPP [...] intervened in the above hours on February 17, 2017, which would violate instruction under Art. 5 sec. 2 u.d.i.p.
The Voivodship Police Commander in Szczecin, as a result of examining the appeal, upheld the decision of the first instance authority by a decision of 12 December 2018. The appellate body indicated that in the appeal the applicant claims that his application contained a scope of public information different from the one specified in the decision, as he demanded to provide the following quotation: "material from the video recorder (...) in the form of recordings of the full service record on February 17, 2017 and on February 15 and 16, 2017 ", and the decision referred only to the recording of the service record from February 17, 2017. As he claims, his intention was not to obtain information in the scope covered by the protection. Moreover, the applicant emphasizes the groundlessness of the refusal to provide information and the necessity to provide the video recorder recordings with the exclusion of those recording elements, quotation: "which will prove the privacy of such persons, eg face silhouette or possibly the license plate number". At the same time, in the further part of the appeal, he notes that it is unacceptable to erase the entire fragment of the recording only because some element of the image contains, quotation: "private information, eg image of a person". Moreover, in the applicant's opinion, the quotation: "the shared part of the recording does not meet the legal obligations of the authority under the Act on Laws and Regulations". According to the applicant, failure to meet these obligations consists in removing the sound from the shared recording and failure to indicate the reasons for such anonymization in the justification of the decision. According to the applicant, the justification of the decision does not meet the formal requirements, quotation: "in particular [...] it does not have the indication of persons who took a position in the course of disclosing public information, i.e. indicating their names, surnames and functions [...] Moreover, the authority did not indicate the entities for whose property the decision referred to in Article 5 (2) of the Act on Laws and Appropriations was issued. ".
As further pointed out by the appeal body, in the course of examining the appeal, the expert of the Control Department of the Provincial Police Headquarters in Szczecin, Commander S. D. recreated the video recorder record of February 17, 2017, stating that it contained a record of the service record of the officers of the Poviat Police Headquarters [...] - Sgt. D. K. and Senior Sgt. M. P., including road checks carried out by them at the hours indicated in the decision. It shows the images of controlled persons, as well as the brands, models and registration numbers of vehicles. Therefore, there is no doubt that the recordings contain data enabling their identification, and making the record available would violate the provisions of Art. 47 of the Polish Constitution, which imposes an obligation on public authorities to protect the privacy of an individual against unjustified interference. The right to the protection of personal data is an emanation of personal rights, the main purpose of which is to ensure respect for privacy, dignity and human personality. Effective protection of privacy would therefore require that the controlled persons and the vehicles they drive cannot be identified irreversibly. Considering that the applicant requested the data to be made available in the form of digital files, the obliged authority was not able to ensure adequate anonymization of the data preventing this process from being reversed. The appellate body also recalled that by the letter of December 29, 2017, the Poviat Police Commander [...] informed the applicant about the lack of recordings of the aforementioned video recorder of February 15 and 16, 2017, as it was not used in the service on those days. Upon receipt of the request for disclosure of public information, the obligated authority subjected it to appropriate verification. As he did not have the requested information, he notified the applicant in writing, without issuing a separate administrative decision.
The Voivodship Commander of the Police in Szczecin also noted that, contrary to the statements contained in the appeal, the details of the person holding the position during the examination of the application were included in the decision. It was also explained that the activities in this case were performed personally by the Poviat Police Commander [...], insp. P. K., who, inter alia, played and analyzed the video recorder recording. He was therefore the only person holding a position on this matter. The appeal body indicated that the body of first instance did not name the entities due to which the decision had been issued. The recorder of the video recorder contains images of people and registration numbers of vehicles undergoing road checks. These people were marked as those whose image was preserved in the course of specific business activities carried out at the indicated hours. Another, more precise way of labeling these people would infringe their privacy.
The applicant lodged a complaint against the above decision.
In response to the complaint, the Voivodship Commander of the Police in Szczecin requested its dismissal, maintaining the position expressed in the contested decision.
At the hearing on 28 February 2019, the applicant, supporting his complaint, argued that in his application of 18 February 2017 he had requested not disclosure of the entirety of the information of 17 February 2017, but a recording of the full service record of February 17, 2017, i.e. from the moment the video recorder is turned on until it is turned off.
By the judgment referred to at the outset, the Provincial Administrative Court in Szczecin, pursuant to Art. 151 of the Act of August 30, 2002, Law on Proceedings before Administrative Courts (Journal of Laws of 2018, item 1302, as amended hereinafter "P.p.s.a."), decided that the complaint was unfounded.
First, the court of first instance submitted that the case initiated by the applicant's request for disclosure of public information had already been adjudicated by the Provincial Administrative Court in Szczecin on two occasions, namely. By a judgment of June 7, 2017, II SAB / Sz 36/17, the Provincial Administrative Court in Szczecin - ruling on the inactivity of the District Police Commander [...] - ruled that the information requested by the complainant with the application of February 18, 2017 , constitute (in principle) public information. In this judgment, the court also stated that: "(...) the applicant's claims are so broadly defined - including, inter alia," material from a video recorder installed in a car [...] belonging to the KPP [...] in the form of recordings of the full the course of service on February 17, 2017 and on February 15 and 16, 2017 "may include data violating the privacy of natural persons - as referred to in Art. only on February 17, 2017, but throughout the period from February 10, 2017 to February 17, 2017. In such a situation, however, the authority should (regarding the data violating the privacy mentioned above) issue an appropriate decision (and in the remaining scope, information which it has at its disposal, and which constitute public information and which are not subject to the abovementioned limitations - should be made available.) In the case, the authority refused to comply with the appropriate procedure, because it refused to provide information by making a material act. o-technical, i.e. informing in a letter that does not have the value of a decision. Such action is in breach of Art. 16 sec. 1 and art. 5 of the Act, and thus it should be considered that the Poviat Police Commander [...] remains inactive as regards the examination of the applicant's request also in the discussed scope ".
On the other hand, by the judgment of 23 May 2018, II SA / Sz 357/18, the Provincial Administrative Court in Szczecin, repealing the decision of the Provincial Police Commander in Szczecin of 30 January 2018 and the preceding decision of the County Police Commander [...] of December 29, 2017, indicated that: "upon re-examination of the case, the authority will issue a decision pursuant to Art.16 (2) (2) of the Act on Laws, bearing in mind that the legislator did not indicate how natural persons should be marked, therefore, he left the choice of the method of marking them for the authority depending on the specific facts of the case. here for such a designation that will not infringe upon their privacy. the remaining allegations concerning the restriction of the right to access to public information is premature. "
Following the above indications by the Court, the Poviat Police Commander [...] by decision of 8 November 2018 refused to provide the complainant with access to public information regarding the entire recording of the video recorder installed in the car of the brand [...] with registration number [...] with the device [...] serial number [...] used in KPP [...] of February 17, 2017,
The Voivodship Police Commander in Szczecin, by decision of December 12, 2018, upheld the decision of the first instance authority of November 8, 2018.
Thus, the Provincial Administrative Court in Szczecin, guided by the content of Art. 153 P.p.s.a., when reviewing the contested decision of 12 December 2018 in terms of its legality, he was obliged to follow the legal assessment and the indications of the Courts contained in the judgments: of June 7, 2017, II SAB / Sz 36/17 and on May 23, 2018, II SA / Sz 357/18, which translates into the scope of its settlement.
Thus, at this stage of the court proceedings, the judicial review of the contested decision should have been limited to the request of the application of 18 February 2017 in the part concerning the refusal to disclose to the complainant the disclosure of public information regarding the entire recording of the video recorder installed in the car of the brand [...] with the registration number [. ...] with the device [...] serial number [...] used in KPP [...] of February 17, 2017.
In the opinion of the Provincial Administrative Court in Szczecin, the authorities of both instances, when issuing their decisions, followed the indications of the Courts under the judgments II SAB / Sz 36/17 and II SA / Sz 357/18 and, when resolving the merits of the case, took into account the legal assessment of these Courts when resolving the case.
In essence, the complainant challenges the legitimacy of the refusal to disclose public information in the light of Art. 5 sec. 2 u.d.i.p. for the entire recording of the video recorder installed in the car brand [...] with the registration number [...] with the device [...] serial number [...] used in the KPP [...] of February 17, 2017 ., because in his opinion, quotation: "(...) the authority can make anonymization not by cutting out the entire fragment, recording by blurring the face or other elements containing private data".
At the hearing on February 28, 2019, the applicant complained that, in his request of February 18, 2017, he had requested not disclosure of the entire record of February 17, 2017, but of the complete service record of February 17, 2017. 2017, i.e. from the moment the video recorder is turned on until it is turned off.
Therefore, referring to the disputed matter (i.e. with regard to the recording of the full service record of February 17, 2017), the Provincial Administrative Court in Szczecin noted that, according to the application of February 18, 2017 attached to the administrative files of the case, for disclosure of public information , the complainant, in section 1 of this request, demanded under Art. 2 clause 1 u.d.i.p. providing information in the scope of, quotation: "Material from a video recorder installed in a fiat car belonging to KPP [...] in the form of recordings of the full service record on February 17, 2017 and (...)", then on page 2 of this request, the complainant indicated: "The manner and form of making the information available: digital files in the scope of point 1, hereinafter, quoted:" Provision of information: as a digital copy in the scope of point, (...). "and further, quoted : "To release in digital medium: DVD-R within the range of point 1, (...).".
The quoted content of the application regarding the recording of the full service record of 17 February 2017 clearly shows that the applicant clearly specified the form in which he requested the requested information, namely in digital form. On the other hand, the appeal body directly indicated that in this form it could not provide the complainant with the requested information, because it was not able to ensure the anonymization of the data, and the recorder record contains images of the inspected persons, as well as the registration numbers of vehicles undergoing road checks, which would make it possible to identify these persons, which as a consequence, it would violate Art. 47 of the Polish Constitution, which imposes an obligation on public authorities to protect the privacy of an individual against unjustified interference. He also rightly pointed out that the right to the protection of personal data is an emanation of personal rights, the main purpose of which is to ensure respect for privacy, dignity and human personality. The appeal body rightly referred to the judgment of the Supreme Administrative Court of 28 November 2002, II SA 3389/01, in which the Court, inter alia, pointed out that: "according to Art. 6 of this Act, personal data shall mean all information relating to an identified or identifiable natural person. Taking these articles into account, it should therefore be emphasized that the protection of personal data, i.e. an identified or identifiable natural person, pursuant to Article 2 of the Act, refers only to the rights of natural persons whose personal data is or may be processed in data filing systems, as it is believed that the right to the protection of personal data is an emanation of personal human rights / personality rights, the right to information self-determination /, the main purpose of which is to ensure respect for privacy, dignity and human personality ".
In the context of this judgment of the Supreme Administrative Court, this means that effective protection of the privacy of controlled persons, including the vehicles they drive, requires such a security that makes it impossible to identify them completely. This also applies to vehicle registration numbers, the knowledge of which may lead to the identification of inspected persons. As justified by the appeal body, these persons were marked as those whose image was preserved in the course of specific official activities carried out at the indicated hours. Another, more precise way of marking these persons would result in a breach of their privacy, which was precisely the reason for the legitimate refusal to disclose public information to the complainant to any extent, and not, as the complainant mistakenly assumed - due to the "inability to effectively anonymize the material". In the opinion of the Court, regardless of the classification of the information on the vehicle registration number, i.e. whether it falls within the scope of the term "personal data" or not, it is always important to weigh up whether the requirement to provide information, here, the full registration number of the vehicle, is justified by circumstances or necessary is for a specific purpose. The applicant in the present case has not demonstrated this. What is important in the context of the allegations in the complaint that the authority - apart from the fact that when resolving the case was bound by the assessment and recommendations of the Courts resulting from the judgments - is primarily bound by the party's request and cannot modify or interpret the content of the request in any way, which is directly clear. at the disposal of Art. 14 sec. 1 u.d.i.p.
The analysis of the facts in the case under examination shows that the authority obliged to disclose the public information rightly refused to disclose it to the complainant to the extent necessary, in view of the statutory premise provided for in Art. 5 sec. 2 u.d.i.p., authorizing the authority to refuse to provide the requested public information, namely due to the possibility of violating the privacy of persons appearing in the requested recording of February 17, 2017.
Pursuant to Art. 5 sec. 2 of the Act on Public Procurement Law, the right to public information is limited due to the privacy of a natural person or the secret of an entrepreneur, and this restriction does not apply to information about persons performing public functions related to the performance of these functions, including the conditions for entrusting and performing functions, and the case when a natural person or entrepreneur waives their right. According to Art. 14 sec. 1 and 2 u.d.i.p., disclosure of public information upon request takes place in a manner and in a form consistent with the request, unless the technical means at the disposal of the entity obliged to disclose it do not allow the disclosure of information in the manner and in the form specified in the request (paragraph 1). If public information cannot be made available in the manner or in the form specified in the application, the entity obliged to provide such information shall notify the applicant in writing of the reasons for the inability to disclose the information in accordance with the application and indicate how or in what form the information may be disclosed immediately. In such a case, if the applicant does not submit a request for disclosure of information in the manner or in the form indicated in the notification within 14 days of the notification, the procedure for disclosing information will be discontinued (section 2).
In the facts of the case under examination, in a situation where the complainant, in his application of 18 February 2017, directly indicated the manner and form of the requested information regarding the recording of 17 February 2017, namely in the form of digital files, it was justified to direct application of the provision of Art. 16 sec. 1 of the Act on Public Procurement Law, pursuant to which the refusal to disclose public information and discontinuation of the proceedings for disclosure of information in the case specified in Art. 14 sec. 2 by a public authority shall take place by way of a decision.
The court of first instance agreed with the authority that having the registration number, make and color of the vehicle, it is possible - not necessarily in a simple and easy way, as indicated in the justification of the complaint - to determine the personal data of the vehicle owner, for example by posting an advertisement, photo on a social network or in a different way. It does not matter whether a specific person can be identified directly or indirectly by knowing the registration number of the vehicle. It is important that the registration number of the vehicle, and also its other features, can be associated with a specific person (not necessarily the owner of the vehicle), which in turn may lead to the identification of this person and, consequently, violation of their privacy. It is about protecting the privacy of a natural person in such a way as to effectively prevent third parties from identifying them. Hence, it was justified to refuse to disclose public information to the complainant in the disputed scope due to the protection of the privacy of other controlled persons. The court did not share the view of the Courts referred to in the complaint that the disclosure of registration numbers is not subject to the protection of privacy.
Therefore, in line with the provisions of the Act on The Poviat Police Commander [...] as the obligated body, while maintaining the form of the decision, refused to provide the complainant with disclosure of the requested public information regarding the entire recording of the video recorder installed in the car of the brand [...] with the registration number [...] with the device [... ] serial number [...] used in KPP [...] of February 17, 2017 due to the possibility of violating the privacy of controlled persons due to the inability to anonymize (obscure) individual parts of the recording and to release only fragments of records in the form of digital files and the Voivodship Commander of the Police in Szczecin legitimately upheld this decision.
On April 24, 2019, the appellant filed a cassation appeal against the above judgment, requesting that the judgment be set aside in its entirety and ruled on its substance by revoking the decision and the decision preceding it, as well as awarding the costs of proceedings, including costs of legal representation, in accordance with the norms prescribed in . He accused the judgment under appeal of a violation of:
1.Art. 153 P.p.s.a. in connection with Art. 170 P.p.s.a. - by omitting the indications as to the further proceedings contained in the judgment of the Provincial Administrative Court in Szczecin of 23 May 2018, file ref. no. II SA / Sz 357/18;
2.Art. 7, art. 77 § 1, art. 80 and art. 107 § 3 of the Code of Civil Procedure - by recognizing as correct the erroneous, laconic and superficial assessment of the collected evidence and such justification of the authority's decision;
3.Art. 6 of the Act on the Protection of Personal Data - through its application, although in the current wording of this provision it did not apply to the case;
4.Art. 14 sec. 2 u.d.i.p. - through its improper application, consisting in recognition that in a situation where the obliged entity claims that it is not possible to disclose information in the form specified in the application, it is not obliged to apply this provision;
5.Art. 5 sec. 2 u.d.i.p. - through its erroneous interpretation, consisting in the unjustified assumption that the content of the car license plate or the image of the car constitute data on the privacy of a natural person;
6.Art. 5 sec. 2 u.d.i.p. - through its improper application, consisting in recognizing as correct the conduct of the body that did not apply to the natural persons concerned for consent to waive the right referred to in this provision;
7.Art. 5 sec. 2 u.d.i.p. in connection with Art. 16 sec. 1 u.d.i.p. - through their improper application, consisting in issuing a decision refusing to disclose public information with reference to the privacy of natural persons, despite the lack of grounds.
In response to the cassation appeal, the authority applied for its dismissal as manifestly unfounded and for the award of the costs of the proceedings, including the costs of legal representation in cassation proceedings.
The Supreme Administrative Court considered as follows:
Pursuant to Art. 183 § 1 P.p.s.a., the Supreme Administrative Court hears the case within the limits of the cassation appeal, however, it takes into account the nullity of the proceedings ex officio. In the present case, there are no, enumerated in Art. 183 § 2 P.p.s.a., prerequisites for invalidity of administrative court proceedings. For this reason, when examining the case, the Supreme Administrative Court was bound by the boundaries of the cassation appeal. These boundaries are determined each time by the grounds indicated in the cassation appeal, which - in accordance with Art. 174 P.p.s.a. - may be: 1) a breach of substantive law due to its incorrect interpretation or application, or 2) breach of procedural provisions, if this breach could have had a significant impact on the outcome of the case.
Binding the Supreme Administrative Court with the boundaries of a cassation appeal lies in the fact that it is competent to investigate violation of only those provisions that have been expressly indicated by the complaining party. Due to the limitations resulting from the indicated legal regulations, the Supreme Administrative Court may not, on its own, specify the charges of the cassation appeal, clarify them or otherwise correct them.
Pursuant to Art. 184 of the Public Procurement Law, the Supreme Administrative Court dismisses a cassation appeal if there are no justified grounds or if the appealed judgment complies with the law despite incorrect justification. It follows from the disposition of this norm that the dismissal of a cassation appeal is a consequence of finding it unfounded by the court. A cassation appeal is also unfounded when the judgment itself is lawful and only its justification is incorrect. This also applies to the case when the justification of the correct judgment is only partially incorrect (see e.g. judgments of the Supreme Administrative Court of May 17, 2011, file reference number I OSK 113/11; of January 20, 2006, file reference number I OSK 344 / 05 and file reference number I OSK 345/05). The judgment complies with the law despite erroneous reasoning, when there is no doubt that after removing the errors contained in the reasoning, the operative part would not change, as well as in a situation where the court of first instance incorrectly interpreted the provisions of substantive law in the justification of the judgment, there are no grounds to set aside the judgment under appeal. when its operative part is correct (judgment of the Supreme Administrative Court of 3 February 2011, file ref.no. II GSK 221/10).
When examining the cassation appeal within such limits, it should be considered that there were no grounds to take it into account, although the reasoning of the judgment under appeal is partially incorrect.
When examining the allegations contained in the cassation appeal, the Supreme Administrative Court will first of all refer to the violation of the procedural provisions, because only after it has been determined that the facts of the case have been correctly established, it is possible to examine the validity of the allegations of violation of substantive law.
The allegation of the offense of Art. 153 P.p.s.a. in connection with Art. 170 P.p.s.a. - by omitting the indications as to the further proceedings contained in the judgment of the Provincial Administrative Court in Szczecin of 23 May 2018, file ref. no. II SA / Sz 357/18 is unfounded. The court of first instance rightly recalled that the basis for the dismissal by the Provincial Administrative Court in Szczecin of the decision of the Voivodship Police Commander in Szczecin of 30 January 2018 and the preceding decision of the Poviat Police Commander [...] of December 29, 2017, was violation of Art. 16 sec. 2 point 2 u.d.i.p. by failure to provide the names, surnames and functions of persons who took a position in the case (pp. 6-7 of the justification of the judgment with reference number II SA / Sz 357/18). In the judgment under appeal, the Court of first instance stated that in the case the authority had complied with these requests, because the justification of the decision of the District Police Commander [...] shows not only the explanation of the reasons for the impossibility of disclosing the requested public information to the applicant, but also the person who took the position in the course of the proceedings - the Poviat Police Commander (file number 169 of the administrative files of the case).
The allegation of infringement of Art. 7, art. 77 § 1, art. 80 and art. 107 § 3 of the Code of Civil Procedure The court does not directly apply the provisions regulating proceedings before public administration bodies, hence its bindingness to these provisions boils down to the obligation to formulate a legal assessment as to whether the process of making a decision on the application of the law by an administrative authority was correct. There is no doubt that the formulation of this assessment requires answers to a number of questions, questions the same as those that must be answered by the administration authority directly applying these provisions. It is not the provincial administrative court that applies these provisions, but uses them only as a comparative matrix in order to determine whether the proceedings of the authority in this respect are consistent with the established legal order. And in the justification of the reviewed judgment, the Court of first instance expressed its arguments, referring to the entire case and the evidence gathered by the administrative authorities. The court's failure to comply with the provisions regulating the conduct of public administration bodies is indirect and may only result from the failure of the court of first instance to comply with the provisions of the Public Procurement Law. This means that when proceeding with the voivodeship administrative court, it does not apply the provisions of the Code of Administrative Procedure, but controls whether the proceedings of the authorities complied with these provisions. The facts established in the case were documented in the collected evidence and found expression in the justification of the contested decision. In this context, the position of the Provincial Administrative Court in Szczecin should be shared that all the relevant circumstances have been clarified and that the evidence in the case has been collected exhaustively.
The allegation of violation of Art. 6 of the Act of August 29, 1997 on the Protection of Personal Data (Journal of Laws of 2016, item 922, as amended), because the court of first instance did not apply this provision, but only quoted it in the justification of the judgment of the Supreme Administrative Court on November 28, 2002, file ref. no. II SA 3389/01 (p. 14 of the statement of reasons).
The Provincial Administrative Court in Szczecin did not violate Art. 14 sec. 2 u.d.i.p. This provision provides for an order to notify the applicant of the reasons for the inability to provide information in accordance with the application and to indicate how or in what form the information may be made available. The standard from Art. 14 sec. 2 u.d.i.p. therefore, it only applies to situations where the technical means at the disposal of the entity obliged to provide do not make it possible to make the information available in the manner and in the form specified in the application. This is not the case here. The appellant in cassation did not notice that the basis for issuing the decision was not a formal obstacle, ie the lack of technical possibilities to settle the application, but a substantive premise. The refusal to disclose public information was due to the protection of the privacy rights of persons registered during the intervention of police officers. In such a situation, the lack of premises for providing public information, including due to the protection of the requested data by the right to privacy, always results in the issuance of a substantive decision, not of a formal nature, in the form of, for example, discontinuation of the proceedings pursuant to Art. 14 sec. 2 u.d.i.p (see the judgment of the Supreme Administrative Court of 30 March 2011, file reference number I OSK 3/11)
The objection relating to Art. 5 sec. 2 u.d.i.p. - through its improper application consisting in recognizing as correct the conduct of the body that did not ask the natural persons concerned for consent to waive the right to privacy. The Act on Access to Public Information does not provide for any special procedure for resigning from individuals from their right to privacy. None of the provisions of the Act or other legal act stipulates that the authority, when a request for disclosure of public information concerns data covered by the right to privacy, is obliged to request the persons whose request relates to resignation from such right. The obliged entity which received a request for disclosure of public information in the form of data covered by the right to privacy is only to examine whether the request actually concerns the information referred to in Art. 5. paragraph 2 u.d.i.p., and then issue it within the time limits specified in art. 13 u.d.i.p. - decision to refuse to disclose information.
The objection of the cassation appeal that the Voivodship Administrative Court in Szczecin wrongly considered that the content of the registration plate constitutes data on the privacy of a natural person should be considered justified. In this regard, the Supreme Administrative Court shares the opinion expressed in the judgment of the Supreme Administrative Court of May 14, 2021, file ref. act III OSK 1466/21, which stated that "the registration number of the car is not subject to protection resulting from the right to privacy, because it identifies the car and not the person, it should be referred to the cases of standard registration numbers consisting of letters and numbers, which do not allow the car to be linked with the owner and in cases where the license plate car is present or presented without being combined with other information relating to space and time or in combination with other personal data, including images of those traveling there. " It should be recalled that pursuant to Art. 4 point 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (general regulation on data protection) (Journal of Laws UE.L. 2016.119.1., hereinafter: GDPR) "personal data" means any information relating to an identified or identifiable natural person ("data subject") and an identifiable person physical is one that can be directly or indirectly identified, in particular on the basis of an identifier such as name and surname, identification number, location data, internet identifier or one or more specific factors determining the physical, physiological, genetic, mental, economic, cultural or social identity of natural persons. Therefore, personal data constitute information relating to natural persons, and such information allows for the identification of such a person directly or with the use of simple identification tools owned by the entity that wants to obtain or process such data. So, if the definition of "personal data" refers to natural persons - the data relating to the item (car) does not constitute the information referred to in Art. 4 point 1 of the GDPR, if the owner of this item can be identified only through access to the relevant registers or catalogs.
However, it should be emphasized that despite the erroneous recognition by the Court of first instance of license plates as personal data in this respect, the ruling dismissing the complaint is correct. As it follows from the justification of the decision of the authority of first and second instance, the premise that the applicant was primarily refused to disclose to the public was that the recordings contain images of four people against whom interventions were conducted, as well as other people. The image of a natural person is personal data, and the fact that a specific person was subject to a Police activity (unless it is a person performing a public function) is subject to the right to privacy, because detention, control or even punishment belongs to the private sphere of a given natural person. which does not have to be disclosed outside to other natural persons. Therefore, it should be considered that the allegations concerning the infringement of Art. 5 sec. 2 u.d.i.p. in connection with joke. 16 sec. 2 of the Act on Appeal, because there was objectively a ground for refusing to provide the complainant with public information on a cassation basis.
The judgment of the Court of first instance, despite partially erroneous reasoning, is consistent with the law as the appeal against the decisions issued in the case had to be dismissed.
It should also be clarified that in so far as the Court of first instance made a decisive opinion on the issue of the provisions of substantive law and their interpretation, this position is not binding on the administrative authorities adjudicating in the case. On the other hand, the authorities are bound by the interpretation of legal provisions made by the Supreme Administrative Court. Nevertheless, the very decision of the Court of first instance was correct. Thus, the judgment under appeal is lawful despite its partially erroneous reasoning.
Considering the above, the Supreme Administrative Court decided that the cassation appeal did not deserve to be taken into account and pursuant to Art. 184 of the PPA, ruled as in point 1 of the judgment.
The Supreme Administrative Court adjudicated on the costs of the cassation proceedings in point 2 of the judgment, pursuant to Art. 204 point 1 in connection with joke. 205 § 2 P.p.s.a. in connection with from § 14 sec. 1 point 2 lit. b) the Ordinance of the Minister of Justice of October 22, 2015 on fees for the activities of legal advisers (Journal of Laws of 2018, item 265). These costs amount to PLN 240 and include the remuneration for the authority's attorney for the preparation and submission of a response to the cassation appeal within the time limit provided for in Art. 179 P.p.s.a.
