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Rb. Den Haag - SGR 19.5008

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Rb. Den Haag - SGR 19.5008
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Court: Rb. Den Haag (Netherlands)
Jurisdiction: Netherlands
Relevant Law:
General Administrative Law Act
Personal Data Protection Act
Decided: 10.08.2020
Published: 24.08.2020
Parties: Executive Board of TU Delft
National Case Number/Name: SGR 19.5008
European Case Law Identifier: ECLI:NL:RBDHA:2020:7608
Appeal from: Rb. Den Haag (Netherlands)
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Rechtspraak.nl (in Dutch)
Initial Contributor: n/a

The appellant made a subject access request to the administrative body (Executive Board of TU Delft) under the currently repealed Dutch Data Protection Act. After reviewing the response, the appellant concluded that not all data was present and launched an appeal. The court ruled that the appellant should make it evident that personal data in question is indeed being processed by an administrative body (TU Delft). Appeal was rejected.

English Summary[edit | edit source]

Facts[edit | edit source]

The appellant requested TU Delft to provide him with more personal data in response to the subject access request under Personal Data Protection Act. TU Delft refused to give more information and rejected the request under the Dutch Administrative Law Act. In its earlier ruling, this Court has decided that the restriction of access was justified.

Dispute[edit | edit source]

According to TU Delft, the appellant has not made it plausible that the overview of personal data was incomplete; the appellant has also been given sufficient opportunity to take notice of his personal data processed by TU Delft. More specifically, cording to the TU Delft, a copy of the study advisers' work records should be excluded from the scope of subject access request because these records contain personal thoughts that are used for mutual consultation. Lastly, TU Delft states that it has started using a different data storage system from 2010, and not all data has been migrated from the old system. The appellant contests the fact that he has received sufficient access to the personal data in question and points out that he has good reasons to suspect that more personal data is processed.

Holding[edit | edit source]

Based on the existing jurisdiction on the matter, the Court ruled that a person who states that there must be more personal data than what he received from an administrative body in response to a DSAR, must make it plausible that there is indeed more personal data. Complainant did not make it evident that more data is proceed by TU Delft. Appeal was rejected.

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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:RBDHA:2020:7608 
Authority
Court of The Hague
Date of pronunciation
10-08-2020
Date of publication
24-08-2020 
Case number
SGR 19,5008
Areas of law
Administrative law
Special features
First instance - single
Content indication
Personal Data Protection Act, plaintiff has not made it plausible that there are more personal data after administrative body has conducted an investigation and has given access to data, unfounded
Sites
Rechtspraak.nl 
Enriched pronunciation 
Pronunciation
COURT THE HEDGE
Administrative law
case number: SGR 19/5008
judgment of the single chamber of 10 August 2020 in the case between
[plaintiff] , at [residence] , plaintiff
and
the board of directors of Delft University of Technology, defendant
(Agent: J. van Leeuwen).
Process sequence
By order of 13 January 2017 (the primary order), the defendant sent the plaintiff a printed version of the digital file on the plaintiff and offered him access to this file on location.
By decision of 20 June 2019 (the contested decision), the defendant declared the plaintiff's objection unfounded.
The plaintiff lodged an appeal against the contested decision. 
With reference to Article 8:29 of the General Administrative Law Act (Awb), the defendant has stated that only the court may take cognizance of certain documents relating to the case. Upon request, the plaintiff has not granted the court permission to rule partly on the basis of these documents. These documents are therefore not included in the assessment. 
The investigation in session took place on 9 July 2020 via a Skype connection. Claimant has appeared. The defendant has been represented by his representative. Also present was M. Sussenbach of the Faculty of Engineering Governance and Management. 
Considerations
1.1
On 2 January 2017, the plaintiff submitted a request for inspection pursuant to Article 35 of the Personal Data Protection Act (Wbp) with regard to his own personal data. 
1.2
By decision of January 13, 2017, the defendant responded to this request and claims to have submitted the complete hitherto existing personal file as laid down in the defendant's student registration system. Excluded are the personal work records of the student advisors, because they contain personal thoughts of student advisors and are exclusively intended for internal consultation and deliberation. 
1.3
By e-mail dated 23 January 2017, addressed to the study advisor, the plaintiff has indicated that his file is not complete and has requested that the entire file be sent to him. By letter dated 29 May 2017, plaintiff repeated his request.
This request was rejected on July 13, 2017, referring to the earlier decision of January 13, 2017.
1.4
On 14 September 2017, the plaintiff filed an objection to the decision of 13 July 2017 by e-mail. By order of 10 April 2018, the objection was declared manifestly inadmissible because the claimant did not lodge an objection within the time limit set.
2. By decision of this court of 24 April 2019, the court ruled that the defendant was justified in declaring the objection to the decision of 13 July 2017 inadmissible on the grounds of exceeding the time limit. The court also ruled that the defendant was wrong to declare the objection to the decision of 13 January 2017 inadmissible. The court ordered the defendant to make a new decision on the objection to the decision of 13 January 2017. 
3. By the contested decision, the defendant declared the objection unfounded and stated that the plaintiff has been given sufficient opportunity to inspect the personal data processed by the defendant, since the plaintiff received a copy of his personal file in January 2017 and was given access to his personal file on 7 February 2017 and received a copy of a number of missing documents. It is not necessary to provide a copy of the study advisers' work records, as these contain personal thoughts that are used for mutual consultation. To substantiate this, reference is made to the judgment of the Supreme Court of 29 June 2007, with number ECLI:NL:HR:2007:AZ4663, legal consideration 3.14. According to the defendant, the plaintiff has not made it plausible that the overview of personal data was incomplete and the plaintiff has been given sufficient opportunity to take cognizance of his personal data. 
4. In short, the plaintiff argues in appeal that he has not received all the personal data in his personal file. The claim that the plaintiff would have had access to his personal file on 7 February 2017 is untrue. Nor did he receive any missing documents, as the defendant wrongly claims. 
The plaintiff claims that he received enrolment documents from academic years 2004 up to and including 2010. Subsequently, he received a summary of the file from M. Brand, with documents dating from 2010 up to and including January 2017. The documents are missing to prove that the summary of the file is correct. 
With reference to Directive 95/46/EC (the General Data Protection Regulation), the plaintiff claims that he has good grounds to arrive at a different verdict from the defendant. The appeal to the judgment of the Supreme Court is therefore not valid. The plaintiff must be able to check whether the information provided is correct. 
5. The court considers the following.
5.1
First of all, the District Court considers that the present dispute concerns the question whether the plaintiff has been sufficiently enabled by the contested decision to take cognizance of the personal data processed by the defendant. Contrary to what the plaintiff stated at the hearing, at this stage of the proceedings it is not open to review whether the defendant was allowed to submit documents pursuant to Section 8:29 of the General Administrative Law Act that only the court is entitled to inspect. After all, by decision of this court of 6 November 2019, the court has already ruled that the requested restriction of access is justified because this (full) access is at the heart of the dispute. In other words: if the documents for which the defendant has not granted access for the reasons mentioned above do not fall under the limited access as referred to in Article 8:29 of the General Administrative Law Act, the proceedings in that respect would no longer be meaningful. This is because the question of whether or not the defendant has refused inspection of those documents on good grounds is in dispute. Because the plaintiff cannot take cognizance of these documents due to the court's decision, it is up to the plaintiff whether or not to grant the court permission to take cognizance of them. The starting point here is that the withholding of permission must remain at the expense and risk of the plaintiff. This system is applied in a multitude of similar cases under the Wbp, but also under, for example, the Government Information (Public Access) Act (Wob), and, according to established case law, is not generally contrary to the right to a fair trial as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). To the extent that the plaintiff nevertheless disagrees with the court's decision of 6 November 2019, he may appeal this decision at the same time as any appeal against it.
5.2
Since May 25, 2018, the General Data Protection Implementation Act (AVG Implementation Act) has been applicable and the Wbp no longer applies. However, pursuant to Section 48(10) of the AVG Implementation Act, written requests as referred to in (among other things) Section 46 of the AVG Implementation Act that are already pending at the time the AVG Implementation Act comes into effect are subject to the law in force prior to the AVG Implementation Act coming into effect. This transitional provision applies in this case and the request will therefore be assessed on the basis of the Wbp.
5.3
Pursuant to Article 35 of the Personal Data Protection Act, there is a right of access to the processing of personal data of the person concerned who so requests. Contrary to the claimant's assertion, there is therefore no right to the provision of personal data on the basis of the Personal Data Protection Act and the defendant only has to offer the claimant the opportunity to inspect. The documents submitted by the defendant show that the defendant sent a copy of the personal file on 13 January 2017 and provided access to the personal file on 7 February 2017.  In addition, it follows from the contested decision that on 20 June 2019 the defendant sent plaintiff another summary as referred to in Section 35(2) of the Wbp. By providing access to the personal data insofar as the defendant is obliged to do so pursuant to the Personal Data Protection Act (Wbp) and, moreover, by sending these personal data to the plaintiff, the defendant has, in principle, correctly interpreted the plaintiffs' right to inspection pursuant to Section 35 of the Wbp. 
5.4
It follows from the case law of the Administrative Jurisdiction Division of the Council of State, e.g. the judgment of 7 June 2017 (ECLI:NL:RVS:2017:1519), that a person who states that there must be more personal data must make it plausible that there must be more personal data, after the administrative body has investigated those personal data and has not credibly stated that there are no more personal data. The defendant has carried out the above-mentioned investigation and has indicated that for the period from 2004 to 2010 another storage system was used which was replaced at the end of that period. Not all information has been transferred to the new system so that relatively less data is available for this period than for the period thereafter. The Court is of the opinion that the defendant has not implausibly stated in this way that there are no more personal data than has been decided upon. Furthermore, the claim that there should be more information than the defendant provided (whether or not under confidentiality) has not been substantiated or made plaintiff plaintiff plaintiff plausible. The District Court therefore sees no grounds for a different judgment, since the plaintiff has insufficiently substantiated what his suspicion is based on that the position of the defendant is incorrect. It is also important in this respect that the plaintiff, when he states that more data are present, seems to be referring in particular to the data that the defendant did not provide access to and that were provided to the court with reasons, by invoking article 8:29 of the Awb, as described above.
5.5
Since the plaintiff did not grant the court permission to rule on the basis of these documents after the aforementioned decision of 6 November 2019, the court has not reviewed these documents and cannot be involved in the assessment in these proceedings. Insofar as the plaintiff claims that he is entitled to inspect these documents, the court - in the absence of the aforementioned permission - cannot verify this. Now that it has not become apparent of circumstances that make that this should not remain at the plaintiff's risk, the District Court can only consider the defendant's position in the contested decision that this information falls outside the scope of the Personal Data Protection Act to be correct.
5.6
In view of the above, the District Court is of the opinion that the contested decision is well-founded. 
6. The appeal is unfounded.
7. There is no reason for a legal costs order. 
Decision
The court declares the appeal unfounded.
This decision was made by Mr. D. Biever, judge, in the presence of Mr. A.E. Maas, registrar. The verdict was rendered on 10 August 2020. As a result of measures relating to the coronavirus, this ruling was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this verdict will still be pronounced in public. This verdict will be published as soon as possible on www.rechtspraak.nl.
The judge is prevented from signing the judgment
court clerk judge
Copy sent to parties on:
Legal remedy
An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State against this ruling within six weeks of the date it was sent. If an appeal has been lodged, a request may be made to the Interim Injunction Judge of the Higher Appeal Court for a preliminary injunction or for the annulment or modification of a preliminary injunction made by this judgment.