Rb. Limburg - AWB-20 1431

Rb. Limburg - AWB-20_1431
Court:	Rb. Limburg (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15 GDPR
Decided:	18.06.2020
Published:	23.06.2020
Parties:
National Case Number/Name:	AWB-20_1431
European Case Law Identifier:	ECLI:NL:RBLIM:2020:4383
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Uitspraken (in Dutch)
Initial Contributor:	n/a

An applicant requested access to a document to the city who granted access under the condition that the two other persons concerned would be there during the time when documents were accessed. Despite both parties agreed that this should be assessed under Article 15 GDPR, the Court considered that this request to access documents was not made under Article 15 GDPR but under another administrative procedural law and the decision to grant it was therefore illegal.

English Summary

Facts

An applicant requested a city to access his file but also the ones of two other parties. The city conditioned access to these files to the presence of the two other persons concerned.

Holding

The Court ruled that the access to document was not made under Article 15 GDPR but under another national provision granting access to file in the context of a procedure challenging the decision. Therefore, the decision of the city to grand access under condition was unlawful.

Comment

Interesting to see that the Court re-qualified the nature of the access request.

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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.

Ruling
RIGHTBANK limburg
Administrative law

Case number: AWB 20/1431

judgment of the court in preliminary relief proceedings of 18 June 2020 on the application for interim relief in the case between

[name 1] , living in Stein, applicant
(Agent: Mr A. C.S. Grégoire),

and

the College of Mayor and Aldermen of the municipality of Stein, defendant.
Proceedings
By decision of 27 May 2020 (the contested decision), the defendant took a decision on the applicant's request for access to the documents contained in the benefit file of [initial 1] [name 2] with effect from 1 January 2019.

The applicant objected to that decision. He applied to the Interim Injunction Judge for interim relief.

Recitals
1. The Court in preliminary relief proceedings sees reason to adjudicate without a hearing and pursuant to Section 8:83(3) of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), because the request is manifestly well-founded. In the unsubstantiated request of the applicant to be heard, the judge in preliminary relief proceedings saw no reason not to make use of the authority given to it in Section 8:83(3) of the Awb. The assessment of the contested decision that follows is a preliminary assessment to which the court is not bound in any appeal case.

Established facts and circumstances

2. The applicant has twice applied to the defendant for access to the benefit file of [name 2] . The applicant has indicated that he requests access to the file of [name 2] for the purpose of contesting the defendant's decision of

20 December 2019 as fully as possible. By that decision, the benefit granted to [name 2] was withdrawn. Subsequently, the applicant requested access to the file of [name 2] pursuant to the Government Information (Public Access) Act (Wob). In response to the latter request, the defendant informed the applicant that it was not clear whether the applicant intended to make a request under the Wob. The defendant explained that if the requested information were to be made public pursuant to the Wob, anyone would be able to take note of it. Since the applicant had already requested access to the file earlier in the objection procedure regarding the decision of 20 December 2019, the defendant informed the applicant that, pursuant to Section 7:4 of the Awb, he may submit an application to inspect documents or to make documents available for inspection and that disclosure of the requested documents is then limited to this objection procedure only. In response to this, the applicant informed the defendant that, in his opinion, it is sufficiently clear that he bases his application on the Wob and he also points to the right of inspection in Article 15 of the General Data Protection Regulation (AVG).

The contested decision

3. The defendant interpreted the request for information as a request under Article 15 of the AVG and decided to grant the applicant access to the file of [name 2] on this basis. As it is a joint file, which also concerns [initials 2] [name 3] , the defendant made it a condition that [name 2] and [name 3] must be present at the inspection.

The objection

4. The applicant disagrees, inter alia, with the condition that [name 2] and [name 3] be present at the inspection and takes the view that there is no legal basis for imposing that condition. Moreover, the applicant submits that it is not for the defendant to qualify the request.

The application for interim relief

5. The applicant requests the Court in preliminary relief proceedings to give a provisional ruling that the defendant wrongly or at least insufficiently substantiated a condition of the inspection that [name 2] and [name 3] are present at the inspection and to determine that he will have access to the file before 14 June 2020 subject to forfeiture of a penalty payment if the defendant fails to do so and otherwise to make another provisional provision. In addition, the applicant requests the Court in preliminary relief proceedings to determine that as a result of the inspection, in deviation from the provisions of Section 7:4 of the General Administrative Law Act, he may submit additional grounds and/or documents before and/or during the hearing of

15 June 2020.

The preliminary assessment of the legality of the contested decision

6. The defendant regarded the applicant's request for information as a request for inspection pursuant to Article 15 of the AVG and made the inspection subject to the condition that [name 2] and [name 3] were present at the inspection. The parties do not agree on this condition. However, before it can be assessed whether the Respondent was entitled to attach this condition to the inspection pursuant to Article 15 of the AVG, it will first have to be assessed whether Article 15 of the AVG applies to this case. The Court in preliminary relief proceedings is of the opinion that this is not the case. Pursuant to Article 15 of the AVG, a data subject has the right that the data controller informs him or her about whether data about him or her are being processed, with the aim of being able to inspect the personal data that are being processed and to check whether these personal data are correct and lawfully processed. It has become apparent that the applicant only wants to consult the benefit file of [name 2] in order to be able to substantiate as fully as possible his objection to the decision withdrawing the benefit of [name 2]. Therefore, despite the inclusion of the AVG in the application, he made a request pursuant to Article 7:4 of the Awb. For its opinion the Court in preliminary relief proceedings sought to follow the decision of the Administrative Jurisdiction Division of the Council of State of the Netherlands.

25 April 2018 (ECLI:NL:RVS:2018:1348) in which the Section ruled the same on a request based on the Personal Data Protection Act, which has been followed up by the AVG. This judgment also shows that it is up to the defendant to indicate a request for information.

7. Because Article 15 of the AVG is not applicable in this case, the Court in preliminary relief proceedings is not entitled to assess whether the inspection pursuant to Article 15 of the AVG may be made subject to the condition that [name 2] and [name 3] are present at the inspection and whether the setting of this condition is sufficiently substantiated.

Conclusion

8. It follows from the considerations set out above that the contested decision will not be able to stand as an objection because it is unlawful. In its objection, the defendant will have to revoke the contested decision because the request for information is not an application under the AVG. The application for interim relief is manifestly well-founded and will be granted because the unlawful contested decision should not be enforceable. The Court in preliminary relief proceedings will suspend the contested decision until six weeks after publication of the decision on the objection.

9. As appears from the above, the Court in preliminary relief proceedings is of the opinion that the defendant should have interpreted the applicant's request as a request for inspection pursuant to Section 7:4 of the Awb, possibly in the sense that the objection file is not complete. Any disputes about this may be raised in the objection procedure against the decision to withdraw the benefit. It is not up to the Court in preliminary relief proceedings to determine that the applicant may, contrary to the provisions of Section 7:4 of the Awb, submit additional grounds and/or documents before or during the hearing, so that the Court in preliminary relief proceedings will not do so.

Clerk's fees and costs of proceedings

10. By granting the application, the Interim Injunction Judge shall order the defendant to pay to the applicant the court registry fee paid by him. Contrary to the applicant's claims, the correct amount of court fee was levied for this case, because the appeal was not lodged against a decision as described in the Rules on reduced court fees annexed to the General Administrative Law Act.

11. The Interim Injunction Judge orders the defendant to pay the costs of the proceedings incurred by the applicant. Pursuant to the Decree on Administrative Law Costs, the Court in preliminary relief proceedings sets the costs of legal assistance granted by a third party to € 512 (1 point for filing the application with a value of € 512 and a weighting factor of 1).

Decision
The preliminary relief judge:

- suspends the contested decision until six weeks after publication of the decision on appeal;

- orders the defendant to pay to the applicant the Registry fee of EUR 178

reimburse;

- order the defendant to pay the applicant's legal costs in the amount of € 512.

This judgment was rendered by M.A.H. Span-Henkens, judge in preliminary relief proceedings, in the presence of A. W.C.M. Frings, registrar. This judgment was rendered on 18 June 2020

As a result of measures surrounding the coronavirus, this verdict was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this decision will, insofar as necessary, still be pronounced in public.

The court is prevented from signing the verdict.

Registrar

Copy sent to parties on: 18 June 2020

Legal remedy
There is no right of appeal against this judgment.