APD/GBA (Belgium) - 42/2023

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APD/GBA - 42/2023
Authority: APD/GBA (Belgium)
Jurisdiction: Belgium
Relevant Law: Article 9(2)(h) GDPR
Article 17 GDPR
Article 17(1) GDPR
Article 17(3) GDPR
Art. 95, §1, 3° WOG
Type: Complaint
Outcome: Rejected
Started: 25.02.2023
Decided: 17.04.2023
Fine: n/a
Parties: n/a
National Case Number/Name: 42/2023
European Case Law Identifier: n/a
Appeal: n/a
Original Language(s): Dutch
Original Source: Gegevensbeschermingsautoriteit (in NL)
Initial Contributor: Enzo Marquet

The Belgian DPA dismissed a request to erasure based on Article 17(3) GDPR because of reasons of public interest in the field of public health in according with Article 9(2)(h)GDPR. It is not up the DPA to determine the correctness of an opinion written by a care provider in light of child protection services regarding the mental well-being of both the child and the mother.

English Summary


The decision revolved around a motivational document of a family created by a care provider in light of child protection services. The document labels the family as potentially alarming because of mental well-being of the child and the parents. The mother, the data subject in this case, vehemently disagrees with both the content and the creation process of the document and wants it deleted in its entirety based on Article 17 GDPR. The controller denied this request of erasure.


The DPA dismissed the complaint on the basis of article 95, §1, 3° WOG (Law establishing the DPA). The DPA established that the right to erasure of Article 17 GDPR has been exercised correctly. However, this right is not aimed at being able to contest the correctness of a document containing personal findings and assessments of care providers regarding the mental well-being of both the child and the mother within their mutual relationship. The document contained the individual opinion of the care provider, which falls within their legal tasks regarding child protection services. As such, the DPA held that the document cannot be erased based on Article 17(1) GDPR.

Adding to this, the DPA held that Article 17(3) GDPR established that the right to erasure does not apply for reasons of public interest in the field of public health in according with Article 9(2)(h)GDPR. The DPA concluded that it is not up to the DPA to determine the correctness of the information in the document and thus order the fulfillment of the request of erasure.


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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.


                                                                           Litigation room

                                                     Decision 42/2023 of 17 April 2023

File number : DOS-2022-05247

Exercising the right to data erasure with regard to motivation document

drawn up in the context of integrated youth care

The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke

Hijmans, sole chairman;

Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016

on the protection of natural persons with regard to the processing of

personal data and on the free movement of such data and repealing Directive

95/46/EC (General Data Protection Regulation), hereinafter GDPR;

Having regard to the law of 3 December 2017 establishing the Data Protection Authority, hereinafter


Having regard to the rules of internal order, as approved by the Chamber of
Representatives on 20 December 2018 and published in the Belgian Official Gazette on

January 15, 2019;

Having regard to the documents in the file;

has taken the following decision regarding:

The complainant: Mrs X, hereinafter referred to as “the complainant”; .


The controllers: Y, hereinafter “controller”; Decision 42/2023 - 2/5

I. Factual Procedure

 1. On 25 February 2023, the complainant submitted a complaint to the Data Protection Authority
       against controller.

 2. The object of the complaint concerns the layout within the framework of integral youth care of

       a motivation document, called M-document, drawn up by the

       controller as a result of the alarming situation that would have been identified

       within the complainant's family and where the child was referred to as a KOPP child, being
       a child of parents with mental health problems. The complainant strongly disagrees with the

       content of the M-document, as well as the way in which this document was created

       and has requested the controller to review this document in its entirety

       delete it, especially since the controller has the M document

       transferred to the Support Center for Youth Care (OCJ) according to the complainant

       also has incorrect information. This request for complete removal of the

       M document is not followed up by the controller.

 3. On March 20, 2023, the complaint will be declared admissible by the First Line Service on the grounds

       of the articles 58 and 60 WOG and the complaint is transferred on the basis of art. 62, § 1 WOG

       to the dispute room.

II. Motivation

 4. On the basis of the elements in the file known to the Litigation Chamber, and on the basis of

       the powers assigned to it by the legislator on the basis of Article 95, §1 WOG,

       the Litigation Chamber decides on the further follow-up of the file; in this case the

       Disputes Chamber about the dismissal of the complaint in accordance with Article 95, §1,3 ° WOG,

       on the basis of the following justification.

 5. When a complaint is dismissed, the Disputes Chamber makes its decision
       step-by-step motivation and:

           - pronounce a technical dismissal if the file is not or not sufficient

               contains elements that could lead to a conviction, or if there are not enough

               there is a prospect of a conviction for a technical obstacle, as a result of which

               she cannot come to a decision;

1Court of Appeal Brussels, Sectie Marktenhof, 19 Chamber A, Chamber for Market Affairs, judgment 2020/AR/329, 2 September 2020, p. 18. Decision 42/2023 - 3/5

            - or declare a policy dismissal, if despite the presence of elements

                which may lead to a sanction, the continuation of the investigation of the file

                seems inappropriate in light of the priorities of the

                Data Protection Authority, as specified and explained in the
                dismissal policy of the Litigation Chamber .

 6. In the event that more than one ground is dismissed, the grounds for dismissal (resp.
       technical dismissal and policy dismissal) must be dealt with in order of importance. 3

 7. In the present file, the Disputes Chamber proceeds to a technical dismissal of

       the complaint. The following motive is at the basis of the decision of the Disputes Chamber why

       it considers it undesirable to follow up on the file and therefore decides not to

       to proceed to, inter alia, a treatment on the merits.

 8. The Disputes Chamber determines that the right to erasure of data (Article 17 GDPR) becomes

       exercised in relation to the relevant M document issued by the

       controller has been drawn up regarding the minor son of the

       complainer. In concrete terms, the exercise of the right to erasure is aimed at

       document submitted by the controller to the

       Support Center for Youth Care (OCJ), to be deleted in its entirety, because this document

       according to the complainant, contained completely incorrect information.

 9. In this context, the Disputes Chamber rules that this request from the complainant is beyond its scope

       is subject to the right to erasure of Article 17 GDPR. This right is not aimed at the

       accuracy of an M-document containing personal findings and assessments of

       care providers contains in this case the mental well-being of both the child and the child
       the mother within their mutual relationship. In a context like the

       the present in which an M document by definition contains the individual opinion of the person concerned

       helper is worded about those who are the object of help, this within

       the legally assigned tasks with regard to integral youth care, cannot become the M-document

       deleted pursuant to Article 17.1 GDPR in the absence of application of the provisions in this provision

       cases mentioned.

2 In this context, the Litigation Chamber refers to its dismissal policy as explained in detail on the website of the GBA:

4Article 17.1. AVG. The data subject has the right of the controller to erasure without undue delay
to obtain personal data concerning him and the controller is obliged to process personal data without
erase unreasonable delay where one of the following applies: a) the personal data is no longer
necessary for the purposes for which they were collected or otherwise processed;
(b) the data subject withdraws consent subject to the processing pursuant to point (a) of Article 6(1) or point (a) of Article 9(2);
is based on, and there is no other legal basis for the processing;

c) the data subject objects to the processing in accordance with Article 21(1) and there are no overriding compelling
legitimate grounds for the processing, or the data subject objects to the processing in accordance with Article 21,
paragraph 2; Decision 42/2023 - 4/5

 10. In addition to this, the Disputes Chamber notes that Article 17.3 GDPR also stipulates that

       the right to data erasure cannot be exercised for reasons of public interest

       in the field of public health in accordance with Article 9.2 h) GDPR, when the

       processing is necessary for, among other things, the provision of social services.

 11. The degree of accuracy of the information reported by the controller

       evaluation of mental well-being, as recorded in an M-document, cannot be

       assessed by the Disputes Chamber, which makes it impossible for it to,

       following the exercise of the right of rectification by the complainant, to order

       the controller to delete the M document. After all, it's not coming

       to the Dispute Chamber to verify the veracity of mental well-being evaluations

       and, if necessary, link it to a data erasure order.

III. Publication of the decision

 12. Given the importance of transparency with regard to decision-making by the

       Litigation Chamber, this decision will be published on the website of the

       Data Protection Authority. However, it is not necessary for the

       identification data of the parties are disclosed directly.

 13. In accordance with its dismissal policy, the Disputes Chamber will make the decision to the

       transfer identified data controllers. The Disputes Chamber has

       decided to officially notify its dismissal decisions

       defendants. However, the Litigation Chamber will waive such notification when the

       the complainant has requested anonymity with respect to the defendant's notification of

       the decision to the defendant, even if pseudonymised, nevertheless

d) the personal data have been processed unlawfully;
e) the personal data must be erased in order to comply with a law laid down in Union or Member State law

legal obligation incumbent on the controller;
f) the personal data have been collected in connection with the offer of information society services referred to in
Article 8(1).
 Article 17.3. AVG. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

 (c) for reasons of public interest in the field of public health in accordance with points (h) and (i) of Article 9(2) and Article
6Article 9.2 h) GDPR. The processing is necessary for the purposes of preventive or occupational medicine, for the assessment
of the employee's fitness for work, medical diagnoses, the provision of health care or social services or
treatment or the management of healthcare systems and services or social systems and services, under Union law
or Member State law, or under a contract with a healthcare professional and subject to those mentioned in paragraph 3
conditions and guarantees;[own emphasis]
 cf. Title 5 – Will the dismissal of my complaint be published? Will the counterparty be notified? by
the dismissal policy of the Litigation Chamber. Decision 42/2023 - 5/5

       makes it possible to (re)identify the complainant . However, this is not the case in the

       present case.


   the Disputes Chamber of the Data Protection Authority decides, after deliberation, to op

   based on art. 95, §1, 3° of the law of December 3, 2017 establishing the

   Data Protection Authority, to dismiss the current complaints.

Pursuant to Article 108, § 1 of the WOG, within a period of thirty days from the

notice of appeal against this decision may be lodged with the Market Court (Court of Appeal

Brussels), with the Data Protection Authority as the defendant.

Such an appeal may be made by means of an inter partes petition
Article 1034ter of the Judicial Code must contain enumerated statements. It

a contradictory petition must be submitted to the Registry of the Market Court
in accordance with article 1034quinquies of the Ger.W. , or via the e-Deposit

IT system of Justice (Article 32ter of the Ger.W.).

To enable the complainant to consider other possible remedies, the
Litigation Chamber the complainant to the explanation in its dismissal policy .

(get). Hilke Hijmans

Chairman of the Litigation Chamber

9 The petition states under penalty of nullity:

 1° the day, month and year;
 2° the surname, first name, place of residence of the applicant and, where applicable, his capacity and his national register or
     enterprise number;
 3° the surname, first name, place of residence and, where appropriate, the capacity of the person to be summoned;
 4° the object and brief summary of the means of the claim;
 5° the court before which the action is brought;
 6° the signature of the applicant or his lawyer.

10The application with its annex is sent by registered letter in as many copies as there are parties involved
deposited with the clerk of the court or at the clerk's office.
  cf. Title 4 – What can I do if my complaint is closed? of the dismissal policy of the Litigation Chamber.