OLG Brandenburg - 12 W 23/22
|OLG Brandenburg - 12 W 23/22|
|Court:||OLG Brandenburg (Germany)|
|Relevant Law:||Article 15(3) GDPR|
|National Case Number/Name:||12 W 23/22|
|European Case Law Identifier:||ECLI:DE:OLGBB:2022:0801.12W23.22.00|
|Appeal from:||LG Cottbus (Germany)|
3 O 163 / 21
|Appeal to:||Not appealed|
|Original Source:||Land Brandenburg (in German)|
|Initial Contributor:||Sara Horvat|
The data controller has partially failed to let the data subject exercise her right to access upon Article 15(3) GDPR.
English Summary[edit | edit source]
Facts[edit | edit source]
The data subject made a request upon Article 15 (3) GDPR to get access to her treatment Data from the time from 14th December 2020 to 19th February 2021. He has already received a Paper File in which X-Ray, MRI, and CT reports were missing. The data controller, a hospital where the data subject has received her treatment, has claimed, that she has received the X-Ray, MRI and CT reports on a Compact Disc (CD) in a PDF Format File, along with all the other documentation. The data controller has claimed €6,000 as the dispute value for the violation of Article 15(3) GDPR. The Regional Court in Cottbus has set in his decision the value on €1,000.
Holding[edit | edit source]
The Higher Regional Court of Brandenburg confirmed the decision of the Regional Court in Cottbus. The court held that the data controller has partially fulfilled his obligation to provide the access to the data subjects’ own data since the majority of the Data requested was already provided in paper form, from which she could already get an insight into her treatment at the data controller’s institution. Due to this, the court held, that the value of the dispute could not be valued as high as it was claimed by the data subject. The court has dismissed the appeal and upheld the first-instance judgement.
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the German original. Please refer to the German original for more details.
I. With the lawsuit, the plaintiff has requested that the defendant be ordered to provide her with free information in accordance with Art. 15 (3) GDPR about the personal data stored by the defendant by sending the complete treatment documentation in PDF format for the treatment period from December 14th .2020 until February 19, 2021. Hospital documents already sent in a box are incomplete. In particular, X-rays and MRI and CT reports were missing. The value in dispute was given by the plaintiff as provisionally €6,000.00. In a decision dated September 10, 2021, the district court declared that it was not competent and assessed the plaintiff’s interest in information at a value of €1,000.00. With the statement of defense dated September 14, 2021, which was received by the district court, the defendant denied that the treatment documents handed out so far were incomplete. On the day of her release, the imaging diagnostic recordings available in the system were put on a CD and handed over to the plaintiff together with a doctor's letter, as is usual in other respects. Without acknowledging a legal obligation, she nonetheless sent the plaintiff's legal representative a CD with patient documents in PDF format and a CD with the imaging diagnostics, whereupon the plaintiff withdrew the action in a letter dated September 21, 2021. In a brief dated October 20, 2021, the defendant's attorney-in-fact applied for an assessment of the amount in dispute for the purpose of calculating the attorney's fees. In a decision dated November 19, 2021, the district court set the amount in dispute at €1,000.00. A complaint was lodged against this decision in a written pleading by the plaintiff’s legal representative dated November 25, 2021 and requested that the amount in dispute be set at €6,000.00, with reference being made in this respect was based on a decision of the Dresden Regional Court of May 29, 2020, Az. 6 O 76/20. In any case, a value in dispute of at least €5,000.00 can be assumed. The district court did not remedy the complaint by decision of June 13, 2022 and submitted the matter to the complaints court for a decision and explained as a reason that the value in dispute of a request for information by transmission of the patient files in PDF format with reference to the GDPR is based on the plaintiff’s interest in information. For the lawsuit, a fraction (1/10 - 1/4) of the value of the claim, the assertion of which he is supposed to prepare, should be taken into account. Sometimes an even lower value is estimated. When determining the amount in dispute, it was taken into account that the request for information was about fundamental rights-protected positions and that the information could be the basis for further claims. II right within the meaning of Section 32 (2) RVG. The plaintiff would not be better off, but worse off, if the value in dispute were raised, especially given that the lawsuit was withdrawn, so that there is no complaint. Only a complaint by the procuratorate in his own right is therefore possible. Since the complaint was not expressly filed on behalf of the plaintiff, but ultimately only a general complaint against the decision of November 19, 2021, the Senate understands this procedure to mean that it is a complaint by the legal representative in his own name. It should also be taken into account that the district court’s decision on the amount in dispute was only used to calculate the lawyer’s fees anyway, because the defendant’s representative’s application in the brief dated October 20, 2021 was based on that alone. The other admissibility requirements are based on Section 68 (1) GKG. They are given. In the matter, however, the complaint is unsuccessful. The justification given by the regional court for an assessment of the value in dispute with a value of €1,000.00 is not convincing, because the value in dispute in the case of a requested information according to § 15 DSGVO is to be measured according to a fraction of the value of the claim, the assertion of which is to be prepared for this claim, as far as can be seen, is not represented in case law and literature and also does not result from the literature reference in Zöller's ZPO commentary referred to by the district court. The fraction of a possible entitlement to benefits that may still be enforceable can primarily be used if the right to information is intended to prepare for the enforcement of a possible entitlement to benefits. However, this intention is not automatically the basis of the claim under Art. 15 GDPR to enable the applicant to exercise the other rights under the GDPR, i.e. in particular the right to correction under Art. 16, to deletion under Art. 17 or to restriction of the Processing according to Art. 18. It is therefore not a question of a pecuniary claim, even if information about personal data within the meaning of Art. 15 DSGVO can produce findings and indications that are suitable for justifying a claim for damages The plaintiff relies exclusively on a decision of the Dresden Regional Court of May 29, 2020 for his opinion that the value of the interest in information should be measured at €6,000.00 and complains that the Regional Court did not deal with this groundbreaking decision. This is in no way understandable. It is not clear to what extent this decision is supposed to be a groundbreaking judgement. Apart from the statement in the judgment that the value in dispute is set at €6,000.00, the decision contains no further justification. The plaintiff's attorney-in-fact does not provide this either, so that it is incomprehensible why a value of €6,000.00 should be set for such lawsuits. Occasionally, a value interest of only €500.00 is assumed (LG Bonn, judgment of July 1st, 2021, Az. 15 O 355/20; LAG Berlin-Brandenburg, decision of March 18th, 2021, Az. 26 Ta (Kost) 6110/20 ). Some senates of the Cologne Higher Regional Court (resolutions of September 3rd, 2019, Az. 20 W 10/18; of February 6th, 2020, Az. 20 W 9/19; of November 12th, 2020, Az. 9 W 34/20) and subsequently also some other courts (cf. e.g. Munich Regional Court, decision of January 22, 2018, Az. 29 O 8286/17) set the value in dispute of a data disclosure claim in accordance with Art. 15 GDPR at €5,000.00, partly with reference to Section 48 Para. 2 GKG, in some cases an analogous application of Section 23 Para. 3 S. 2 RVG is also used. The decisions of the Cologne Higher Regional Court also show that the economic interests of the plaintiff can also be taken into account within the scope of the discretionary decision to be made for the determination of the amount in dispute if the assertion at least indirectly also has an economic goal, such as the enforcement of any claims for damages stands. If this is the case, the Cologne Higher Regional Court generally assesses the amount in dispute at €5,000.00. It remains to be seen at this point whether this can ultimately be followed unreservedly. In any case, for the present individual case, it must be taken into account that the protection of immaterial fundamental rights on which the right to information is based is to be rated only slightly, since the plaintiff, according to her own submission, had already been sent the treatment documents in a cardboard box. To the extent that it was claimed that this was done incompletely, the main justification was that X-rays and MRI and CT reports were missing. Apparently, the plaintiff has already gained initial insights from the treatment documents, in which it is stated that there were different opinions between the anesthesiologist and the doctors performing the operation with regard to the surgical procedure, although it remains completely open what the concrete consequences of this should be. In any case, however, the plaintiff had already received some meaningful documents and insofar as she justified the incompleteness with the fact that imaging documents were not available, the defendant submitted in the statement of defense that these had already been handed over to the plaintiff upon her release, as the consistent practice. Against this background, the plaintiff's interest in additionally receiving the treatment documentation in PDF format cannot be assigned a value of €5,000.00, but significantly less. The Higher Regional Court of Stuttgart, judgment of June 17, 2021, Az. 7 U 325/20, assessed the value in dispute for a claim for information pursuant to Art. 15 (1) GDPR at only €2,000.00, namely for a total of three independent requests for information and In its judgment of August 31, 2021, Az. 4 U 324/21, the Higher Regional Court of Dresden set a value in dispute of €3,000.00, also for several asserted claims for information together. Since in the present case only a right to information is asserted and the plaintiff's interest in information is no longer to be regarded as particularly valuable in the run-up to the lawsuit, as explained, the assessment of the amount in dispute at €1,000.00 seems appropriate for the present case. It has not been shown that the plaintiff's right to information was based on a special economic interest behind the protection of immaterial fundamental rights. The statement of claim as such does not relate at all to the extent to which the right to information serves to prepare a claim for damages in medical liability proceedings. After all, it has to remain with the determination of the amount in dispute by the regional court. The decision is made free of court fees; there is no reimbursement of costs (§ 68 Para. 3 GKG).