AP (The Netherlands) - AWB-21 3909

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AP - AWB- 21_3909
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Authority: AP (The Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 15(1) GDPR
Type: Other
Outcome: n/a
Started:
Decided: 30.11.2022
Published: 06.12.2022
Fine: 560.5 EUR
Parties: n/a
National Case Number/Name: AWB- 21_3909
European Case Law Identifier: ECLI:NL:RBZWB:2022:7219
Appeal: n/a
Original Language(s): Dutch
Original Source: www.rechtspraak.nl (in NL)
Initial Contributor: Caroline Smith

English Summary[edit | edit source]

An appeal by a data subject on a decision not to provide work notes with the files requested under Article 15 GDPR from a College was found unfounded because of the personal nature of said notes.

Facts[edit | edit source]

A data subject made a request to obtain an inspected copy of the complete files on said data subject and her children from an officer of a college. The files were provided but the request was denied for work notes of the school attendance officer.

The data subject lodged an objection to the College, which was declared unfounded by the officer. The data subject then filed an appeal against the decision.

The Court upheld the appeal and annulled the decision of the Officer, leaving the decision to the College. In absence of a decision the data subject filed two letters of default and then appealed for failure to decide in a timely manner.

The college then upheld the objection and awarded procedural cost, but still denied the request for inspection of the full files. In turn the Court declared the appeals inadmissible and unfounded but awarded the claimant the legal costs.

Holding[edit | edit source]

The Court found that the College had properly denied the request of the data subject for access, holding that the work notes were not available and even if they were do not have to be made available due to their personal nature. In doing so it declared Article 15 (1) GDPR not applicable to the work notes.

Furthermore, the appeal for the untimely decision of the College was declared inadmissible, because the College decided on the matter and on penalty payments after the complaint had been lodged and thus the subject lacked sufficient procedural interest in a substantive assessment.

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English Machine Translation of the Decision[edit | edit source]

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

ECLI:NL:RBZWB:2022:7219
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Authority
Court of Zeeland-West Brabant
Date statement
11-30-2022
Date publication
06-12-2022
Case number
AWB-21_3909
Jurisdictions
Administrative law
Special characteristics
First instance - multiple
Content indication
AVG
Locations
Rechtspraak.nl
JBP 2023/32
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Enriched pronunciation
Pronunciation
ZEELAND-WEST BRABANT COURT
Seating place Breda
Administrative law
case number: BRE 21/3909

judgment of the three-judge chamber of 30 November 2022 in the case between

[name of plaintiff] , from [place name 1] , Spain, plaintiff,
(Agent: mr. R.J.G. Ensink),

and
The college of mayor and aldermen of the municipality of Dongen (defendant)
(Agents: mr. W.C.J.M. Dankers and [name of attorney] ).

Introduction
1. In this judgment, the court assesses the claimant's appeal against the Board's failure to make a timely decision on the objection and against the decision of 29 September 2021 (contested decision), in which the Board upholds the claimant's objection to the partial rejection of the has declared its request for inspection under the General Data Protection Regulation (GDPR) unfounded.
1.1.
The court heard the appeal at a hearing on 19 October 2022. Participated in this: the authorized representative of the claimant and the authorized representatives of the Board. Plaintiff was not present.

Development of the contested decision
2. In connection with an appeal to the exemption from the obligation to ensure that her two children are registered as pupils at a school, Plaintiff has had contact with the compulsory education officer of the municipality [name of town 2].
2.1.
By letter dated 22 January 2019, plaintiff requested the school attendance officer to inspect and provide a copy of the complete files on plaintiff and her children, including all (work) notes of oral contacts and all written and oral communication about plaintiff and her children with third parties, including the municipality of [place name 2], the GGD and Safe at Home.

2.2.
In a letter dated 5 February 2019, the school attendance officer provided the children's files as they are included in the youth monitoring system and provided a written elaboration of a telephone conversation that the school attendance officer had on 12 January 2017 with an employee of Veilig Thuis, as well as an overview of subsequent contacts of the attendance officer with the Council for Child Protection, the GGD, the association of attendance officers, the community police officer and the Care and Safety House. Insofar as the request relates to work notes of the attendance officer, the request has been rejected.

2.3.
Plaintiff appealed to the Board against the decision of 5 February 2019.

2.4.
On July 1, 2019, the school attendance officer declared the claimant's objection unfounded.

2.5.
Plaintiff has appealed against the decision of 1 July 2019. This appeal is known under case number BRE 19/4291.

2.6.
With the judgment of 24 February 2021 (ECLI:NL:RBZWB:2021:756), the court upheld the appeal and overturned the decision of 1 July 2019. The court ruled that the decision of 5 February 2019 does not constitute a decision within the meaning of Article 1:3 of the General Administrative Law Act (Awb), because the attendance officer does not act as an administrative body when making a decision on the GDPR request. the meaning of the Awb can be regarded. The court noted that the plaintiff's notice of objection was addressed to the Board and that the Board, because he has not yet made a decision on this, will still have to make a decision on it.

2.7.
Because a decision from the Board was not forthcoming, Plaintiff served notice of default on the Board by letter dated 6 July 2021. On September 3, 2021, plaintiff once again served notice of default on the Board.

2.8.
Plaintiff subsequently appealed to the court against the Board's failure to make a timely decision on Plaintiff's objection.

2.9.
In the contested decision, the Board declared the objection well-founded, revoked the decision of 5 February 2019 in the sense that the decision was taken on behalf of the Board instead of the attendance officer, awarded legal costs of
€ 534.00 and the penalty forfeited due to late decision set at € 1,442.00. The rejection of the request to provide access to the work notes of the attendance officer has been maintained.
2.10.
Pursuant to Section 6:20(3) of the Awb, the appeal not being decided in time also relates to the contested decision.

Review by the court
3. The court will assess the claimant's appeal against the Board's failure to make a timely decision on the objection and the partial rejection of the claimant's request for inspection on the basis of the GDPR. It does so, inter alia, on the basis of the arguments put forward by the plaintiff, the grounds of appeal.
3.1.
In the opinion of the court, the appeal, insofar as it is directed against the failure to make a timely decision, is inadmissible due to the lack of interest in bringing proceedings. The appeal, insofar as it is directed against the partial rejection of the access request, is unfounded. The court explains below how it arrived at this judgment and the consequences of this judgment.

3.2.
The legislation and regulations that are important for the assessment of the appeal can be found in the appendix to this judgment.

Not making a timely decision
3.3.
The appeal has commenced because the plaintiff has lodged an appeal against the Board's failure to make a timely decision on the objection.

3.4.
An appeal can be lodged with the court against a failure to decide on an objection in time.1 The notice of appeal can be submitted as soon as the administrative authority has failed to take a decision on time and two weeks have elapsed after a written notice of default has been received by the administrative authority. 2

3.5.
It has been established that at the time of filing the appeal against the failure to make a timely decision on the objection, the Board had not yet taken a decision and that at that time two weeks had elapsed after the Board had received the notice of default. At the time of filing the appeal against the failure to make a timely decision, the appeal was therefore admissible.

3.6.
After the claimant lodged an appeal against the failure to make a timely decision, the Board decided with the contested decision on the claimant's objection. The Board has also set the penalty payments forfeited by the Board at the maximum amount.

3.7.
In view of this, the court is of the opinion that plaintiff no longer has any legal interest in a substantive assessment of her appeal against the failure to make a timely decision.

3.8.
However, the court sees reason to order the Board to pay the legal costs incurred by the plaintiff for not timely deciding the appeal. The costs of proceedings are calculated in accordance with the Decree on costs of proceedings in administrative law (Bpb). The college is ordered to reimburse the costs of legal assistance. The court sets these costs at € 379.50 (1 point for submitting the notice of appeal, with a value per point of € 759.00 and a weighting factor of 0.5, assuming a case of "light weight").

3.9.
In addition, the Board must reimburse the court fee of € 181.00 to the claimant.

Appeal against the contested decision
3.10.
There is a dispute between the parties whether the Board was obliged, pursuant to Article 15 of the AVG, to provide access to the personal work notes of the attendance officer. This concerns in particular:
notes or transcripts of a telephone conversation from the attendance officer
- with the Child Protection Board on January 30, 2017,
- with the GGD on February 2, 2017,
- with a lawyer from Ingrado on March 7, 2017,
notes or transcripts of the conversations of the attendance officer with the community police officer and the Care and Safety House and an e-mail from the attendance officer to the youth doctor of the GGD on 19 June 2017, as well as notes or transcripts of a subsequent telephone conversation.

3.11.
It follows from the contested decision and the additional explanation thereto at the hearing that the Board primarily based the rejection of the request for inspection on the basis that any (working) notes have now been destroyed, so that for that reason alone there can be no question of the providing access to it. In the alternative, the right of inspection does not extend to internal notes containing the personal thoughts of employees of the controller and which are exclusively intended for internal consultation and deliberation. According to the Board, the (work) notes of the attendance officer should be regarded as such internal notes.

3.12.
The Board explained at the hearing that the school attendance officer fell ill some time ago, probably in 2017/2018, and has not worked for the municipality [name of town 2] for several years now. The investigation into the personal data processed by the plaintiff and her children was carried out at the time by the then privacy officer of the municipality. The information found in the case systems and with individual colleagues has been assessed and, insofar as it involved the processing of personal data, access has been given. More or other personal data were not found. In addition, notes that employees make for themselves are not stored in the case system. No such notes have been found. The mail accounts of colleagues who leave the service are deleted shortly after leaving the mail server in the context of the protection of personal data.

3.13.
In view of this explanation, the court does not consider the Board's statement that the documents referred to by plaintiff are not (or no longer) available and that no more personal data are available, to be credible.

3.14.
If the administrative body has conducted an investigation into the personal data and its position that there are no more personal data does not appear implausible, then – as follows from the case law of the Administrative Jurisdiction Division of the Council of State3 – the person who states that there must be more personal data must to make. In the opinion of the Court, Plaintiff has failed to do so. It has sufficed with the mere statement that it is unlikely that the work notes and the e-mail have been destroyed or deleted, without further substantiation.

3.15.
This leads the court to the conclusion that the Board has partially rejected the request for access to the personal data on good grounds. In view of this, the position of the Commission, that even if the working notes were still available, due to the nature of these notes, no inspection was necessary, no longer needs discussion.

3.16.
Plaintiff argued that the Board should have forwarded the request to other administrative bodies insofar as the information was held there. In doing so, Plaintiff referred to Section 2:3(1) of the Awb. Insofar as the request related to the e-mail of 19 June 2017, according to the claimant, the Board should have returned the request on the basis of Article 2:3, second paragraph, of the Awb, stating the possibility that the e-mail mail was still with the GGD.

3.17.
The court does not agree with plaintiff. In view of the nature of the information - personal (work) notes that are not stored in the case system - the court does not consider it plausible that the information is held by administrative bodies other than the Board, notwithstanding the fact that plaintiff has not specified with which administrative bodies the information would be based. There was therefore no question of a situation involving a request for which another administrative authority was apparently competent, as referred to in Section 2:3(1) of the Awb. In the opinion of the court, there was also no question of a situation as referred to in Section 2:3(2) of the Awb. The fact that the information requested by the claimant may possibly be held by the GGD does not alter the fact that the request by which the claimant requested access to her personal data was intended for the Board, while the obligation for administrative authorities, pursuant to Article 2:3, second paragraph, to of the Awb to be returned to the sender only applies to documents that are not intended for the administrative body.

3.18.
The foregoing leads to the conclusion that the appeal against the contested decision is unfounded. There is no reason for a (further) order for costs.

Decision
The court
- declares the appeal inadmissible, insofar as it is directed against the failure to make a timely decision;
- declares the appeal, insofar as it is directed against the contested decision, to be unfounded;
- instructs the Board to reimburse the paid court fee of € 181.00 to the claimant;
- orders the Board to pay the plaintiff's legal costs in connection with the appeal against the failure to make a timely decision to the amount of € 379.50.

This statement was made by mr. E.J. Govaers, chairman, and mr. R.P. Brothers and
Mr. S.A.M.L. van de Sande, members, in the presence of W.J.C. Gordon, op
November 30, 2022, and made public by means of anonymised publication on www.rechtspraak.nl.

clerk
chair
A copy of this judgment has been sent to the parties at:
Information on appeal
A party that disagrees with this ruling can send a notice of appeal to the Administrative Jurisdiction Division of the Council of State explaining why this party disagrees with this ruling. The notice of appeal must be submitted within six weeks of the day on which this judgment was sent.

Appendix: Laws and regulations important for this ruling
Article 1, first paragraph, of the GDPR reads as follows:
For the purposes of this Regulation, "personal data" means any information relating to an identified or identifiable natural person ("the data subject"); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person;
Article 15, first, third and fourth paragraph, of the GDPR reads as follows:
1. The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed and, where that is the case, to obtain access to those personal data and to the following information:
a. the processing purposes;
b. the categories of personal data concerned;
c. the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
d. (…)
3. The controller shall provide the data subject with a copy of the personal data being processed. If the data subject requests additional copies, the controller may charge a reasonable fee based on administrative costs. Where the data subject submits his request electronically, and does not request any other arrangement, the information shall be provided in a commonly used electronic format.
4. The right to obtain a copy referred to in paragraph 3 shall not affect the rights and freedoms of others.

Article 2:3 of the Awb reads as follows:
1. The administrative authority shall immediately forward documents for handling which are apparently competent to another administrative authority to that authority, at the same time notifying the sender thereof.
2. The administrative authority shall return documents that are not intended for it and which will not be forwarded to the sender as soon as possible.
1 Article 6:2, preamble and under b, in conjunction with Article 7:1, first paragraph, preamble and under f, of the Awb
2 Article 6:12, second and third paragraph, of the Awb
3 Among other things, the judgment of 7 June 2017, ECLI:NL:RVS:2017:1519