Rb. Midden-Nederland - C/16/542054 / KG ZA 22-341
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| Rb. Midden-Nederland - C/16/542054 / KG ZA 22-341 | |
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| Court: | Rb. Midden-Nederland (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR Article 6(4) GDPR |
| Decided: | 10.08.2022 |
| Published: | 10.08.2022 |
| Parties: | Municipality of Amersfoort |
| National Case Number/Name: | C/16/542054 / KG ZA 22-341 |
| European Case Law Identifier: | ECLI:NL:RBMNE:2022:3193 |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | rechtspraak.nl (in Dutch) |
| Initial Contributor: | Jette |
The Dutch District Court of Midden-Nederland held that a municipality was not obliged to disclose the name and address details of data subjects looking for paranormal activity at a cemetery to the parents of two deceased children buried there.
English Summary
Facts
Data subjects were a group looking for paranormal activities. They visited a cemetery in the municipality of Amersfoort (controller) to conduct a séance, "looking for energies of the deceased". This happened with the permission of the director of the cemetery.
The parents of two children who were buried at the cemetery later found out about the séance and requested the data subjects' NAW-data (name, address and residence) from the municipality. They wanted to talk to them directly and possibly hold them liable for the damage they suffered as a result of the séance. The mother stated that it is absolutely not allowed to summon "spirits or devils" at graves in their Islamic culture. As a result of the séance, she claimed to have suffered serious psychological problems.
The data subjects did not want their personal data to be disclosed. They had received serious threats because of the incident and felt unsafe.
The municipality apologised for the events but stated that it was not obliged to disclose the personal data to the parents. It did offer to facilitate a conversation between the parties, during which the data subjects would remain anonymous, but the parents declined the offer. The parents were of the opinion that the municipality was acting unlawfully by not providing the personal data, so they brought the case before the court.
Holding
The District Court of Midden-Nederland (Rechtbank Midden-Nederland - Rb. Midden-Nederland) heard the case. The Court stated that the data subject's did not consent to the disclosure of their personal data and this does not fit with the purpose for which the data was initially processed. It must therefore be tested against Article 6(1)(f) and (4) GDPR.
The Court noted that (1) there must be legitimate interest, (2) the disclosure must be necessary and (3) it had to balance the interests of both parties: the right to protection of personal data and the safety of the research group and the right to information and effective legal protection of the parents.
Initially, the Court found that the parents had a legitimate interest to access the personal data of, at least, the representative of the paranormal group. Then they could learn more about what exactly happened at the graves of their children and get answers to the questions they still had. The Court also held that the condition of necessity had been met.
However, the Court held that the safety aspect weighed heavily. The mayor had also received threats, after which a conviction followed. Although the interests of the parents were important, they did not outweigh the interests of the data subjects.
Moreover, the alternatives to get answers have not yet been exhausted by the parents. They even turned down previous proposals from the municipality. The data subjects did not want a personal conversation with the parents, and such a conversation cannot be forced.
Lastly, the Court stated that it's doubtful whether the data subjects acted unlawfully towards the parents. Therefore, it was not proportional to take an irreversible decision like the provision of personal data.
Ultimately, the Court held that the municipality was not obliged to provide the name and address details of the data subjects and denied the parents' request.
Comment
The National Ombudsman had also been called in to investigate the actions of the municipality in the matter.
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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.
verdict CENTRAL NETHERLANDS COURT Civil rights trading room location Utrecht case number / roll number: C/16/542054 / KG ZA 22-341 Judgment in summary proceedings of 10 August 2022 in the case of 1 [claimant sub 1], residing at [residence] , 2. [claimant sub 2], both living in [residence] , plaintiffs, lawyer mr. R.G.S. Pennino in Heerlen, against the legal person under public law MUNICIPALITY OF AMERSFOORT, based in Amersfoort, defendant, lawyer mr. H.S. Large in Amersfoort. Plaintiffs will hereinafter be referred to as [claimant sub 1] and [claimant sub 2]. Defendant will be called Municipality of Amersfoort. 1 The procedure 1.1. The course of the procedure is apparent from: - the summons of 19 July 2022 with attached exhibits (1a, 1b, 2a and 2b), - the exhibits 3 -5 of [claimant sub 1] and [claimant sub 2] , - the productions (8) of the Municipality of Amersfoort, - the oral hearing on 27 July 2022, - the pleading note of [claimant sub 1] and [claimant sub 2], - the pleading note of the Municipality of Amersfoort. 1.2. Finally, verdict has been determined. 2 The assessment Introduction 2.1. On September 11, 2021, a group of researchers at the cemetery [cemetery] in Amersfoort conducted an investigation among the children's graves. Two children of [claimant 1] and [claimant 2] are buried there. The relief requested by [claimant sub 1] and [claimant sub 2] in these summary proceedings is intended to provide the Municipality of Amersfoort with the name and address details (name, address and place of residence) of participants of the research group (to the extent known to the Municipality of Amersfoort). and also facilitates that a face-to-face conversation between [claimant 1] and [claimant 2] and the group can take place in the shortest possible time, with the municipality of Amersfoort being ordered to pay the costs of the proceedings . [claimant sub 1] and [claimant sub 2] base this claim on the statement that the Municipality of Amersfoort is acting unlawfully by not providing the personal data. 2.2. The Municipality of Amersfoort disputes that it has an obligation to provide the relevant data. It claims that it only has the data of the representative of the group and invokes a fundamental right: the right to the protection of personal data. Due to the safety of those involved and the irreversibility of the decision, the provision of the personal data would, according to the Municipality of Amersfoort, constitute an unlawful interference with this fundamental right. 2.3. This case concerns a clash of rights and a balancing of mutual interests. After considering this, the preliminary relief judge comes to the conclusion that the Municipality of Amersfoort is currently under no obligation to provide the requested information. The judge explains why this is the case below. First, it will be briefly outlined what the case is about. The period September 11, 2021 - December 17, 2021 2.4. A six-member paranormal investigation group conducted an after-hours investigation between approximately 8:30 p.m. and 11:30 p.m. on Sept. 11, 2021 at [cemetery] — with the permission of the cemetery director. An employee of the cemetery would accompany the group. At one point, the researchers split into two groups of three. One group visited the Kinderhof with the employee. The other group of three walked in the direction of Davidshof unaccompanied. 2.5. The events that took place at [cemetery] on September 11, 2021 have led to a lot of unrest, questions and emotions, also with [claimant sub 1] and [claimant sub 2]. 2.6. The events came to light because one of the participants of the research group left a camera on the path in the Kinderhof. That camera was later found by a father who visited a grave. The camera contained an SD card containing videos of some of the activities on the night in question. The father has informed the Mayor and Aldermen of the Municipality of Amersfoort. 2.7. The Algemeen Dagblad has been informed and published an article on 9 October 2021 with the title 'Spiritual seance at children's cemetery bewilders father'. The article stated that members of a spiritual society, with the knowledge of the board, tried to summon the spirits of deceased children. 2.8. On 13 October 2021, the Municipal Executive of the Municipality of Amersfoort informed the relatives of the deceased at [cemetery] by letter based on what was known at the time. Apologies were also made for allowing the investigation on September 11. It is stated that this should not have happened. The day after, on October 14, 2021, a meeting for parents took place. 2.9. On 20 October 2021, the Municipal Executive requested the National Ombudsman to conduct an independent investigation. The National Ombudsman started the investigation on November 3, 2021. A letter has been sent to the relatives in which a further explanation is given on the investigation that the National Ombudsman will carry out. 2.10. During the investigation of the National Ombudsman, [claimant 1] and [claimant 2] have instituted summary proceedings before this court against the Municipality of Amersfoort. They have demanded that the Municipality of Amersfoort be ordered to provide information about the investigation group. An oral hearing was held in these proceedings on 30 November 2021. An amicable settlement was then reached. 2.11. In a letter dated 17 December 2021, the National Ombudsman informed the Municipality of Amersfoort about the conclusion of the investigation, the assessment and recommendations (exhibit 4 to the summons). Attached to the letter is the 'report of the facts about the investigation at [cemetery] dated September 11, 2021' (exhibit 3 to the summons). The Municipality of Amersfoort informed the next of kin about this in writing on 17 December 2021 after the report of the National Ombudsman was completed. There was also telephone contact between the mayor of the Municipality of Amersfoort and various relatives. 2.12. For an overview of the actual events at [cemetery] on September 11, 2021, the run-up to this and what happened after the camera images were found until the investigation was started, the judge refers to this report from the National Ombudsman. The state of affairs after the investigation report of the National Ombudsman 2.13. The Municipality of Amersfoort has been involved in the care and recovery process of [claimant sub 2] from January 2022 to the present day. It was ensured that she could contact the District Team. In addition, a hotel room has been facilitated and reimbursed for her and an action plan has been drawn up by the Institute for Public Values that, among other things, addresses the request from [claimant sub 1] and [claimant sub 2] for a new home. It is expected that [claimant sub 2] can start treatment in September 2022 at the Sinai Center (treatment and expertise center for PTSD) for her psychological complaints. 2.14. In the letter dated January 27, 2022, the Municipality of Amersfoort informed the next of kin that it wants to bring the people of the group who have been to [cemetery] and the relatives who still need it in contact with each other. [claimant sub 1] and [claimant sub 2] have also been invited. The letter announces that it is possible to ask questions during the conversation about the walking route of the group members, the working method of the group and the videos. The letter further states: ‘(…) Recently a lot of (negative) attention has been paid via (social) media and accusations have been made towards the group that visited [cemetery] on September 11. This creates a feeling of insecurity among these people. That is why they have indicated that they wish to remain anonymous in the conversation. We can comply with this by having the next of kin and the group that was at [cemetery] be present in separate rooms. Via an online connection they are audible but not visible to next of kin. The request is also to deal confidentially with what is shared in the conversation and not to make recordings. (…) In the contacts we have had with relatives, we have also heard that there is a need for a face-to-face conversation. This option has also been presented, but cannot be realized for the reasons mentioned above. The group has indicated that they would like to have a personal conversation with relatives of some graves of which they indicate that they have had contact with energies of a deceased (the two places where the videos were recorded). (…)' 2.15. According to the Municipality of Amersfoort, in the period between January 27 and February 14, 2022, four face-to-face conversations took place between one participant of the group and relatives of whom the group members have indicated that they are relatives of graves where research has been conducted into alleged energies of a deceased. [claimant sub 1] and [claimant sub 2] have not received an invitation for this. 2.16. On 22 and 24 February 2022, the anonymous conversations took place between relatives and part of the group. The Municipality of Amersfoort states that it was not present during the conversations, other than to facilitate the telephone connection between the two rooms. 2.17. [claimant sub 1] was present on 24 February 2022 at the meeting with two members of the research group. According to the Municipality of Amersfoort, these were the representative of the group and one other person. 2.18. After the discussions there was an opportunity to ask written questions, which questions would be answered by the representative of the group. [claimant sub 1] and [claimant sub 2] did not make use of this option. 2.19. [claimant sub 1] and [claimant sub 2] have held the Municipality of Amersfoort liable for the damage suffered by them in connection with the events at [cemetery]. By e-mail of 10 February 2022, (the insurer of) the Municipality of Amersfoort rejected liability. 2.20. [claimant sub 1] and [claimant sub 2] subsequently requested the Municipality of Amersfoort to issue the name and address details of the participants of the group that the Municipality of Amersfoort had not complied with. Legal framework 2.21. The assessment of whether the Municipality of Amersfoort is authorized to provide the requested data to [claimant sub 1] and [claimant sub 2] is contained in Article 6 of the General Data Processing Regulation (GDPR). It is not in dispute that the Municipality of Amersfoort, as a controller within the meaning of Article 4(7) of the GDPR, is subject to the legal obligations under this regulation. It is also established that if the personal data are made available to [claimant sub 1] and [claimant sub 2], this constitutes processing within the meaning of Article 4 sub 2 GDPR. This means that the Municipality of Amersfoort can only lawfully provide the data to [claimant sub 1] and [claimant sub 2] if it can base itself on one of the principles of Article 6 of the AVG, in which the following is stipulated insofar as relevant here: ‘1. The processing is only lawful if and insofar as at least one of the following conditions is met: a)the data subject has consented to the processing of his/her personal data for one or more specific purposes; (…) f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where the interests or fundamental rights and freedoms of the data subject which require the protection of personal data outweigh those interests, in particular when the person concerned is a child. (…) 4. Where the processing for a purpose other than that for which the personal data were collected is not based on the data subject's consent or on a provision of Union or Member State law which, in a democratic society, constitutes a necessary and proportionate measure to ensure the protection referred to in Article 23 , paragraph 1, when assessing whether processing for another purpose is compatible with the purpose for which the personal data were initially collected, the controller shall take into account, inter alia: (…) d) the possible consequences of the intended further processing for the data subjects.” 2.22. The Municipality of Amersfoort has obtained the details of a contact person of the group with the aim of maintaining contact about the request for an investigation and the further follow-up of the investigation at [cemetery]. It is established that the participants in the research group have not given permission to provide their personal data to [claimant 1] and [claimant 2]. Many accusations have been made against the group via (social) media. There have also been threats. Because of the feeling of insecurity that this would entail, they therefore wanted - on the advice of the Municipality of Amersfoort - to remain anonymous in conversations with relatives. [claimant sub 1] was present at one of those conversations. It has become apparent that - unlike with [claimant sub 1] and [claimant sub 2] - 1 or 2 participants of the group did enter into direct and personal conversations with several other relatives. According to the Municipality of Amersfoort, this concerns relatives of several graves of which the group has indicated that they have had contact with the energies of a deceased person at that location (the two places where the films were recorded). This would not have taken place at the graves of the children of [claimant sub 1] and [claimant sub 2], but about 35 meters from there. [claimant sub 1] and [claimant sub 2] doubt whether the locations mentioned are correct. Although the desire of [claimant sub 1] and [claimant sub 2] to enter into a discussion with the group is understandable, they cannot derive any rights from the fact that there was direct contact with another, limited group. The basic principle remains that the participants in the group can decide for themselves with whom they want to talk directly. Moreover, objective criteria have been used for the distinction made between the next of kin. 2.23. Since there is no consent from the data subjects to provide their data to a third party and this does not fit within the purpose for which they were issued, the request must be checked against Article 6 (1) (f) GDPR in conjunction with Article 6 (4) GDPR. This means that the interests of [claimant under 1] and [claimant under 2] must be weighed up against the interests or fundamental rights of the data subject(s) that require the protection of personal data. It is also important what possible consequences the provision has for the participants of the group. In the opinion of the preliminary relief judge, this means that three cumulative conditions must be met in order to assume an obligation to provide personal data. Firstly, there must be a legitimate interest in processing personal data. Secondly, the processing of the personal data must be necessary in the concrete situation. Finally, the interests of the controller or third party must be weighed up, on the one hand, and the interests of the data subject, namely the person whose personal data is involved, on the other. 2.24. It should be noted that it is required to demonstrate with a high degree of probability that these conditions have been met. The judge in preliminary relief proceedings must exercise restraint, because of the irreversible nature of the provision of personal data and the far-reaching consequences that this can have for data subjects. It must therefore be beyond reasonable doubt that the judge on the merits, if such proceedings are instituted, will also rule that the Municipality of Amersfoort has such an obligation. Legitimate interest 2.25. It is sufficiently plausible that [claimant 1] and [claimant 2] have a legitimate interest in providing the personal data of at least the representative of the group. They want (i) to talk directly with the participants because, in their view, this is necessary for the recovery of [claimant 2], and (ii) they must be able to sue the participants of the group (in court) to recover their damages. In the opinion of the preliminary relief judge it is conceivable that a conversation can lead to more clarity about what exactly happened. The information to be obtained then may contribute to her recovery. This is all the more true because the information provided on this subject has not been unambiguous. The Municipality of Amersfoort does not question the interests of [claimant 1] and [claimant 2] either. She has also indicated with her defense that she does not wish to detract from the way in which [claimant 1] and [claimant 2] have experienced in the past period and the psychological complaints that [claimant 2] mentions. As a result of the events on September 11, 2021, she claims to experience serious psychological complaints (PTSD) and re-experiences. [claimant sub 1] and [claimant sub 2] point out that in the Islamic culture in which [claimant sub 2] grew up it is absolutely not allowed to summon spirits or devils (Jins) at graves, let alone at graves of children. Necessity 2.26. In the opinion of the preliminary relief judge, the condition of necessity has also been met. It is plausible that [claimant sub 1] and [claimant sub 2] address their request to provide the personal data to the Municipality of Amersfoort because it has not been shown that they can trace the identity of at least one of the participants in any other way in order to to enter into a conversation and to be able to address them/him for compensation for damage. Balance of interests 2.27. It therefore comes down to the third condition: balancing the right to the protection of personal data on the one hand and the right to information and effective legal protection on the other. The provision of personal data is in fact always an interference with the right to the protection of that data and in principle unlawful, but in certain circumstances it may nevertheless be necessary that the data be provided. In the opinion of the preliminary relief judge, that is not the case in this case because, in the light of what the Municipality of Amersfoort has put forward, insufficient arguments have been made to consider the weighing of interests in favor of [claimant under 1] and [claimant under 2]. drop out. 2.28. The preliminary relief judge considers first of all that in this case it is important that it is plausible that the disclosure of data for (the representative of) the group can be very drastic from the point of view of (their sense of) safety. The accusations and threats made towards the group, including on social media, are a clear and concrete indication of this. The starting point for taking this seriously are also the threats to the mayor as a result of the event and that a criminal conviction has been handed down in connection with this. Under these circumstances, it is of great importance that the personal data is handled with care. It has been argued by [claimant sub 1] and [claimant sub 2] that this only concerns personal data, and that the nature of these data means that confidentiality is less relevant than with special personal data such as medical data. In the opinion of the judge in preliminary relief proceedings, that is not the case. If, as here, there are threats to be taken seriously, the consequences of abandoning protection of the name and address data can also be considerable and caution is advised because of these potentially far-reaching consequences. 2.29. On the other hand, there is the interest of [claimant sub 1] and [claimant sub 2] in finding the truth, which can contribute to processing and recovery. They want to know who conducted the research into the energies, where exactly this was done and what happened. The anonymous contact in February was insufficient. They want to be able to look those involved in the eye. According to [claimant sub 1] and [claimant sub 2] there are indications that participants of the group visited the graves of their daughters. It has been indicated that this would not be the case, but [claimant 1] and [claimant 2] state that they cannot simply rely on the statements made about this. The question that arises as a result of this, however, is whether there are not less drastic ways for [claimant 1] and [claimant 2] to achieve their desired goal of truth-finding. The Municipality of Amersfoort has also made proposals for this, such as submitting questions in writing to the representative of the group, which questions can then be answered in writing. Furthermore, during the oral hearing, it was discussed whether a more interactive way of communicating could be possible using technical means, without the need to immediately disclose the identity. 2.30. [claimant sub 1] and [claimant sub 2] did not accept the proposals, but why the other, less onerous ways for the participants in the group, to obtain information about the events would not suffice, is not sufficiently substantiated. [claimant sub 1] and [claimant sub 2] also do not sufficiently address the claim that a lot of information has already been provided, including during the conversation that took place on 24 February 2022 in which [claimant sub 1] was also present. According to them, the reliability of the information provided is at stake. In the opinion of the preliminary relief judge, however, they should have argued more why the name and address details are needed for that purpose and for that reason their interest in conducting a direct conversation should prevail over the interest of the participants in the group in safety. 2.31. Furthermore, it remains unclear whether the intended aim of [claimant under 1] and [claimant under 2] will be achieved in this way. There must be willingness on the part of the participant(s) of the group to enter into an open conversation with [claimant sub 1] and [claimant sub 2], which does not appear to be. They have responded negatively to recent requests for such a meeting. The Municipality of Amersfoort cannot force a meeting either. On the other hand, once the data is provided, the protection of the security risks of the data subjects is definitively affected. It is therefore more logical at the moment for the parties to further investigate the alternatives for contacting each other and exchanging information. However, the summary proceedings do not provide the scope for this. During the oral hearing, [claimant 1] and [claimant 2] indicated that they (want to) have nothing to do with the threats that were made towards the group and that they distance themselves from them. They have proposed to assume a form of secrecy in order to meet the interests of those involved. In short, the possible alternatives for entering into a conversation in a certain way do not seem exhausted yet. 2.32. In this regard, it is also important to note that the urgency stated by [claimant under 1] and [claimant under 2] in the requested relief to facilitate a face-to-face conversation has proved insufficient in the opinion of the preliminary relief judge. . According to [claimant sub 1] and [claimant sub 2] there must be more clarity about the events on September 11, 2021 before [claimant sub 2] starts with a treatment that is planned in Tunisia in August 2022 in the presence of family and Islamic predecessors, at least for the treatments of the psychiatrist in the Netherlands. It is expected to start in September 2022, after a waiting period of almost a year. During the oral hearing it was already considered that this necessity lacks substantiation and that it has not been made sufficiently plausible. 2.33. [claimant sub 1] and [claimant sub 2] have further argued that they have an interest in providing the personal data in order to be able to sue the (representative of the) research group (in court) in addition to the Municipality of Amersfoort (in court) for the damage as a result of the events on September 11, 2021. [claimant sub 1] and [claimant sub 2] argue that they suffer damage in the form of health complaints and consequential damage (incapacity for work, loss of income). In the context of these interim injunction proceedings, however, it cannot be assumed that this interest ensures that the balance tilts to the side of [claimant under 1] and [claimant under 2]. The following is the reason for this. 2.34. In the preliminary opinion of the preliminary relief judge, it goes too far to assume in these preliminary relief proceedings that the participants of the investigation group acted unlawfully towards [claimant under 1] and [claimant under 2] . For example, there is uncertainty about a criminal prosecution and the Ombudsman's report does not comment on this. It is a fact that the events of September 11, 2021 should not have happened in the manner known so far. The conclusion of the National Ombudsman is also clear: the actions of the Municipality of Amersfoort are regarded as improper. On this basis, however, it cannot simply be assumed that the participants of the research group, or at least the representative of the group, have/has acted unlawfully towards [claimant 1] and [claimant 2]. At the moment there is too much doubt about this to be able to base an irreversible decision to provide the name and address data. Set against the plausible risks for the data subjects, this means that no obligation to provide the data can be assumed. 2.35. [claimant sub 1] and [claimant sub 2] have further argued that the Municipality of Amersfoort has rejected liability and that therefore only the way remains open to address the participants of the group, at least the representative. They need the name and address details, according to [claimant sub 1] and [claimant sub 2] not only for the liability but also, for example, for holding a preliminary witness examination. The preliminary relief judge understands from this that [claimant sub 1] and [claimant sub 2] believe that the judicial process is hindered because the Municipality of Amersfoort does not provide the data. This statement cannot be followed. In addition to the fact that it does not appear that no further legal action is possible in any form, restraint must be exercised in the context of these preliminary relief proceedings. With reference to what has been considered above, the interests of the participants of the research group should at this point take precedence. Conclusion 2.36. The preliminary relief judge comes to the conclusion that it cannot be assumed at this point that the Municipality of Amersfoort is acting in violation of its legal obligation by not providing the requested name and address details. The requested facility is therefore refused. Cost 2.37. [claimant sub 1] and [claimant sub 2] will be ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of the Municipality of Amersfoort are estimated at: - court fee € 676,00 - lawyer's salary 1,016.00 Total €1,692.00 3 The decision The preliminary relief judge 3.1. rejects the claims, 3.2. orders [claimant under 1] and [claimant under 2] to pay the costs of the proceedings, estimated on the part of the Municipality of Amersfoort to date at € 1,692.00, 3.3. declares this judgment provisionally enforceable with regard to the costs order. This judgment was rendered by mr. J.P. Killian and pronounced in public on August 10, 2022.1 1 type: HH (4182) col:
