OVG Berlin - OVG 3 S 24/20

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OVG Berlin - OVG 3 S 24/20
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Court: OVG Berlin (Germany)
Jurisdiction: Germany
Relevant Law:
Article 16 TEU - Treaty of the European Union
Article 17 (1) (a) (d) TEU - Treaty of the European Union
Article 17 (1) (a) TEU - Treaty of the European Union
§ 4 (1) School Law of Berlin (Schulgesetz Berlin - SchulG BE)
Decided: 01.07.2020
Published:
Parties:
National Case Number/Name: OVG 3 S 24/20
European Case Law Identifier: ECLI:DE:OVGBEBB:2020:0701.3S24.20.00
Appeal from: Verwaltungsgerichts Berlin
Appeal to: Unknown
Original Language(s): German
Original Source: Entscheidungen der gerichte in Berlin und Brandenburg (in German)
Initial Contributor: n/a

The right to erasure (Art. 17 (1) GDPR) has been denied for documents which are part of a student´s file.

English Summary[edit | edit source]

Facts[edit | edit source]

A student, his/her parents and the school authority communicated a lot, this communication was requested to be deleted from the student´s file, as well as a copy of one report card.

Dispute[edit | edit source]

The school and authority refused to take out these documents, although the claimant claimed that they do not correspond with the reality.

Holding[edit | edit source]

An obligation to remove that document, which formed the basis for the written reprimand issued on 11 October 2018, cannot be required in a claim for interim injuction. In any event, there is no need for legal remedy in this regard in view of the appeals brought against the school regulation measure, which also open a review of the decision taken in the class conference.

The argument that pages 51 to 54 contain clearly incomplete copies of notices of opposition is not comprehensible.

Insofar as the applicants request the removal of the copy of the report card dated 1 February 2019 (page 2), a serious and unreasonable disadvantage, which could no longer be remedied by a decision in the main proceedings, is in any event not recognisable, in view of the undisputed failure to assess the individual subjects and the fact that an assessment of the applicant's conduct in the second place for the first half of the school year 2018/2019 can no longer be inferred from the school record.

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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.

Court: Higher Administrative Court Berlin-Brandenburg 3rd Senate
Decision date: 01.07.2020
File number: OVG 3 S 24/20
ECLI: ECLI:DE:OVGBEBB:2020:0701.3S24.20.00
Document type: Decision
	
Source:	
standards:	Article 17(1) TEU 2016/679, Article 17(1)(a) TEU 2016/679, Article 17(1)(d) TEU 2016/679, Article 16 S 1 TEU 2016/679, § 4(1) SchulG BE

    No right to "clean up" a pupil's sheet

Tenor

    The applicants' appeal against the order of the Berlin Administrative Court of 28 February 2020 is dismissed.

    The applicants shall bear the costs of the appeal.

    The value of the subject of the appeal is set at EUR 2,500.00.

Reasons

1

    The complaint was unsuccessful. The submission of the appeal, which is the sole subject-matter of the examination by the Higher Administrative Court (Paragraph 146(4), sixth sentence, of the VwGO), does not justify amending the order under appeal, by which the Administrative Court rejected the application for the third partial file of the pupils' sheet relating to the applicant in 2.

2

    To the extent that the applicants claim that they were not given the opportunity to adjust their applications before the resolution was adopted in response to the defendant's written statement of 21 February 2020, in which the removal of sheet 61 of the schoolchildren's sheet was promised, this does not help the appeal to succeed, because no relevance of this circumstance is apparent - not least with regard to § 155.1 sentence 3 of the German Rules of the Administrative Courts (VwGO).

3

    The statements of the applicants do not thoroughly question the assessment of the Administrative Court that the requirements for a claim for cancellation under Art. 17 (1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 June 2016/679 on the protection of public health and safety at work in the internal market are met. April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (the Basic Data Protection Regulation) do not apply to the documents cited by the applicants, since neither a loss of purpose within the meaning of Article 17(1)(a) of the Basic Data Protection Regulation nor unlawful processing under Article 17(1)(d) of the Basic Data Protection Regulation has been established. In so far as they claim that unlawful processing is the result of the fact that the file was "created for the purposes of the current procedure" and that the principles of record keeping were thus infringed, they do not provide any conclusive evidence. A formal objection to the keeping of a file does not automatically mean that a data processing operation is substantively unlawful. Irrespective of that, a non-chronological stapling, incomplete pagination or the duplication of some letters does not in itself justify the assumption of manipulation of the pupils' sheets, as alleged by the applicants. It remains both unclear for which "procedure" this is being carried out and with what motivation it is supposed to have been carried out. The argument that "the school" had tried to "put the applicant in a bad light" is speculative, since it ignores the fact that the documents in question are from two school years (2018/2019 and 2019/2020) during which the applicant attended two different schools. There is no other conclusion with regard to sheet 61 of the school record, because a single document, the removal of which the respondent has already agreed to, does not support such further-reaching assumptions.

4

    The fact that, as the applicants claim in their pleadings of 30 March 2020, the pupil's form does not include various letters (such as letters from the applicants on 1 and 3, certificates and apologies for a missed class, applications for leave of absence and change of compulsory elective subject) does not allow for a reliable conclusion to be drawn that the pupil's form was subsequently changed, nor does it establish that the documents currently contained in the pupil's form need to be removed. Should the applicants consider the data on the pupil's application form to be incomplete in view of this, they are free to seek completion of the file in accordance with Art. 16 sentence 2 DSGVO. Moreover, correspondence between the applicants and the school supervisory authority in Spandau or the Senate Administration for Education, Youth and Family Affairs can, by its very nature, only be taken into account for the pupils' form if it has reached the persons responsible for keeping the pupils' form pursuant to Article 2(5) of the Regulation on the Processing of Personal Data in the School System (Schuldatenverordnung - SchuldatenV).

5

    The complaint's argument that the correspondence between the parents and the school and the school inspectorate had no place in the pupils' record does not provide sufficient grounds for an adequate examination of the contested order. In this respect, the Administrative Court based its decision on the express provision in § 2.4 sentence 2 of the Pupils' Data Protection Ordinance, according to which the correspondence concerning the pupil is collected in the pupils' questionnaire. According to the assessment of the Administrative Court, which the applicants do not substantiate in question, this also covers correspondence with third parties. The applicants do not sufficiently explain what the requirement they have set out that correspondence with third parties cannot be included in the school questionnaire if it has any connection whatsoever with school matters, but only if it has a direct impact on the school relationship itself. The pupil's record is an instrument for recording information about a pupil and the lessons, which is required at school over a longer period of time for teaching and educational work and the necessary administrative work (§ 1 Para. 1 SchuldatenV), and, in accordance with the specific purpose of § 2 Para. 1 Sentence 1 SchuldatenV, serves on the one hand to improve understanding of the pupil's personality and at the same time as a document for cooperation between school and parents. It can only do justice to this if it covers the various aspects of the school relationship in its breadth. Both an accurate assessment of the pupil's individuality and targeted communication and cooperation with the parents (cf. § 4 subsection 1 SchulG) justify, in the pupil's interests, the measures described in § 2 subsection 1 SchulatenV in the interests of the pupil throughout his or her school career - especially in the event of a change of school (cf. § 10 subsection 3 SchuldatenV). 4 sentence 2 of the School Data Ordinance (SchuldatenV) - the broad understanding expressed in § 2 subsection 4 sentence 2 of the School Data Ordinance of the documentation task of the pupil's record, which also includes notes on incidents in everyday school life and the school reactions to them, as well as contacts with the parents or guardians, which substantiate their view of the child's school development. The complaint does not substantiate the fact that, contrary to the differentiating assessment of the first instance decision, the individual documents in question here do not meet these requirements, but rather, with regard to pages 17, 18, 19, 20, 21 to 25, 26, 27, 28, 29 to 30, they do not show that the child's school development has been taken into account, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, 47 to 50, 55, 56 to 60, 62, 64 to 66, 67 to 69, 71, 73, 75, 76, 77, 78, 79 to 80, 81 to 84.85, 87 to 89 and 90 to 112 of the pupils' questionnaire, they were "not necessary from the outset" for the purpose of collecting data.

6

    Nor is there any justification for amending the contested decision in the light of the minutes of the class conference of 10 October 2018 (sheet 5). An obligation to remove that document, which formed the basis for the written reprimand issued on 11 October 2018, cannot be required in summary proceedings. In any event, there is no need for legal remedy in that regard, in view of the appeals brought against the school regulation measure, which include a review of the decision taken in the class conference. The applicants have not exhausted these possibilities, as the notice of appeal of 10 September 2019 has obviously become final. Apart from that, the applicants do not conclusively show that this letter does not correspond to reality and is therefore factually incorrect. A mere presumption that it is not clear whether the minutes of the class conference in the file are correct in terms of content is not sufficient to satisfy the burden of substantiation incumbent on the applicants for the existence of the grounds for cancellation (see Kamann/Braun, in: Ehmann/Selmayr, DSGVO, 2nd ed., Article 17 marginal no. 19). This also applies in consideration of the lack of a signature, as this alone does not support the assumption that the minutes are incorrect in content.

7

    The argument that pages 51 to 54 contain clearly incomplete copies of opposition notices cannot be accepted. As the Administrative Court has already stated, these sheets are the complete duplicates of the opposition notices of 10 September 2019, which are printed on the front and back, with page numbers throughout.

8

    In so far as the applicants request the removal of the copy of the report card of 1 February 2019 (Schedule 2), a serious and unreasonable disadvantage, which could no longer be eliminated by a decision in the main proceedings, is in any event not recognisable in view of the undisputed failure to assess the individual subjects and the fact that an assessment of the applicant's employment and social conduct in the first half of the school year 2018/2019 can no longer be inferred from the school record.

9

    The decision on costs is based on Paragraph 154(2) of the VwGO. The determination of the amount in dispute is based on § 47 (1), § 53 (2) No. 1, § 52 (2) GKG.

10

    This decision is unappealable (§ 152 (1) VwGO, § 68 (1) sentence 5 in conjunction with § 66 (3) sentence 3 GKG).