Rb. Midden-Nederland - C/16/501697 / HA RK 20-117

Rb. Midden-Nederland - C/16/501697 / HA RK 20-117
Court:	Rb. Midden-Nederland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15 GDPR Article 23 GDPR
Decided:	02.12.2020
Published:	18.12.2020
Parties:	SAMEN VEILIG MIDDEN-NEDERLAND
National Case Number/Name:	C/16/501697 / HA RK 20-117
European Case Law Identifier:	ECLI:NL:RBMNE:2020:5410
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	De Rechtspraak (in Dutch)
Initial Contributor:	n/a

Child protective service Samen Veilig was wrong to limit the complainant's access request: Samen Veilig has not made the right assessment of the interests.

English Summary

Facts

In December 2016 the director of the school of the complainant's son filed a report with the child protective service. In December 2017 the report was investigated and closed after the consultation with the parents of the minor. In March 2020 the complainant filed a request with Samen Veilig, asking to provide her with copies of all complete log overviews, including all names of persons who have had access to the file of her son. Samen Veilig responded that it would provide the job titles of the employees, but not their names.

Dispute

Must Samen Veilig provide the names of the employees who have had access to the file of the complainant's son?

Holding

The Court ruled that Samen Veilig did not strike the right balance in their assessment of interests. Samen Veilig has a valid interest of restricting access to the employee information to protect their privacy, when it's necessary for the exercise of their tasks or to investigate or end a (suspected) child abuse. However, these exceptions apply only in individual cases. In this specific case, it has not been asserted that there is any reason to believe that the complainant might misuse the information that will be provided to her. The mere mentioning of job title does not suffice and limits the complainant in the possibility to check whether the access to the file was lawful. Samen Veilig must provide complainant with the requested log files, including names of employees and access time stamps.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

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.

Case number / petition number: C/16/501697 / HA RK 20-117

Decision of 2 December 2020

in the case of

[applicant] ,

residing at [residence] ,

the applicant,

attorney at law A.H. Ekker in Amsterdam,

by

the foundation

TOGETHER SAFE CENTRAL NETHERLANDS,

established at [place of business] ,

defendant,

Authorised representative: [A] ( [.] , working at Samen Veilig).

The parties are hereinafter referred to as [the applicant] and Samen Veilig.

1The procedure
1.1.
On 24 April 2020, [the applicant] lodged an application under Article 15 of the General Data Protection Regulation ('the AVG'). It amended that request on 7 July 2020.

1.2.
Due to the corona crisis, the court decided to continue the case in writing. The parties were informed by letters dated 26 May 2020. Subsequently, the parties have had the opportunity to respond to each other's positions in writing. Samen Veilig submitted a defence. The [applicant] responded to this. Samen Veilig was the last to respond.

1.3.
Finally, the court has determined that a decision will be made.

2 What is it about?
2.1.
[applicant] has a minor son named [name of minor] (hereinafter: [first name of minor] ) born on [date of birth] 2012. She is acting in this procedure as the legal representative of [minor's first name] .

2.2.
Part of the organisation of Being Safe Together and SAVE. Veilig Thuis acts as Advice and Reporting Point for Domestic Violence and Child Abuse as referred to in Article 4.4.1. of the Social Support Act 2015 (WMO 2015) and performs its tasks on the basis of that Act. SAVE carries out youth protection and youth reclassification measures at the behest of the municipalities (in the province of Utrecht). SAVE is a so-called certified institution (GI) as referred to in the Youth Act and performs its tasks on the basis of that Act.

2.3.
In December 2016, the director of the school of [minor's first name] filed a care report with Veilig Thuis. This report was then forwarded to SAVE. In March 2017, the report was dealt with or closed after consultation with the parents of [minor's first name].

2.4.
By e-mail of 3 March 2020, [the applicant] together with Veilig requested that Veilig Thuis and SAVE provide her with "copies of all complete log overviews up to the moment of provision, including all names of persons who have had access to the file".

2.5.
Samen Veilig responded on 17 March 2020 and indicated that it will provide the log overviews of the files of [first name of minor] at both Safe Home and SAVE with the positions of the employees, but not their names. Together, Veilig gave [the applicant] the opportunity to receive those statements by secure email or to retrieve them from SAVE's office. The [applicant] did not make use of that possibility.

2.6.
Subsequently, within six weeks, [the applicant] submitted this request. She requests the Court to grant it, as far as possible, on a provisional basis:

I. Jointly order Veilig, within one week of the date of this decision, to make it available for inspection:

a. the logging records regarding the files of her son, updated to the date of this decision, showing which persons have consulted and/or edited (parts of) these files and/or performed other actions with regard to the data in these files on which date and at which time, and

b. the names of the persons to whom, up to the date of the decision, data have been supplied from the files of her son, as well as the date and time on which this supply took place and an indication of the personal data which have been supplied;

II. Samen Veilig to order the payment of an incremental penalty of € 250.00, or at least an incremental penalty to be determined by the court, for each day or part thereof that Samen Veilig fails to comply in full with the orders referred to under I above;

III. Order Samen Veilig to pay the costs of these proceedings.

2.7.
The applicant bases its request on Article 15 of the AVG in conjunction with Article 35(1) of the General Data Protection Implementation Act (UAVG) and Article 7.3.10 of the Youth Act and Article 5.3.2. WMO 2015, which regulate the right of inspection. In addition, [the applicant] refers to provisions relating to medical treatment agreements (Medical Treatment Agreement Act) and other legislation and regulations or decisions and/or policy rules relating to medical patient files, which must show that the names of those who have had access to the file must also be provided. According to her, the right of inspection in the Youth Act and WMO 2015 has an identical intention and scope as the right of inspection in the WGBO and therefore Samen Veilig must also provide the names of those who have had access to the file of [minor's first name].

2.8.
Insofar as relevant, the parties' statements will be discussed in more detail below.

3 What does the court think?
3.1.
The application of [the applicant] consists of two parts. It requests:

1. logs concerning the files of [minor's first name] , showing, inter alia, the names of persons who have consulted, edited and/or carried out other actions on the files, and

2. names of those to whom information from the files of [minor's given name] has been supplied when and what information has been supplied in connection therewith.

Re 1: The logging records

3.2.
It is not in dispute between the parties whether Samen Veilig must submit the logging summaries, or at least a logical translation thereof. Samen Veilig also has no objection to the issue of these summaries, as evidenced by its e-mail of 17 March 2020. Nor is it in dispute that the assessment of the lawfulness of personal data (the purpose of the right of access) that are processed by Samen Veilig also includes information about who has had access to the file. According to Samen Veilig, she complied with this by informing [the applicant] which officers had access to the file. According to Samen Veilig, the provision of the names of its employees does not fall under the right of inspection because this constitutes an infringement of their personal privacy. In addition, Samen Veilig contends that it has made a balancing of interests in which the interests of its employees to protect their rights and freedoms outweigh [the applicant's] interest in transparency.

3.3.
Contrary to Samen Veilig's opinion, the court is of the opinion that, in principle, the names of those who have had access to the file of a data subject also fall within the scope of this judgment (see ABRvS 30 November 2011, RECLI:NL:RVS:2011:BU6383). The mere mentioning of 'job title' is not sufficient and limits the person concerned to checking whether the access granted was lawful. The court also does not follow Samen Veilig in its opinion that the files it creates should be looked at differently from the medical files, because the counselling/assistance that it provides often takes place without permission and is of a coercive nature. The legislator has coordinated legislation and regulations in the context of the duty to file and access to medical cases as well as guidance/assistance provided by Samen Veilig. After all, both cases involve special (sensitive) personal data that are processed. Thus, merely mentioning the official does not enable [the applicant] to exercise control over the personal data processed. After all, she cannot, as Samen Veilig states, determine on the basis of that information whether it was her contact person or another person who accessed the file. It has not been established, nor has it appeared, that every staff member with a certain position should have free access to the file of [minor's first name].


3.4.
However, the right of inspection is not unlimited. Exceptions to this may be made in accordance with Article 23 of the AVG. For the Netherlands, these exceptions have been elaborated in article 41 UAVG. Article 41 paragraph 1 under i UAVG states that the interest of a person concerned must give way to inspection, among other things to protect the rights and freedoms of others. The Youth Constitution and WMO 2015 also contain restrictions on the right of inspection. Article 7.3.10, last sentence, of the Youth Constitution stipulates that disclosure may be dispensed with to the extent that this is necessary in the interest of the protection of the privacy of another person. Article 5.3.2 WMO contains the same regulation, with the addition that access may also be refused if this is necessary for the performance of the tasks referred to in Article 4.1.1, second paragraph, or to end a situation of domestic violence or child abuse or to investigate a reasonable suspicion thereof. This exception and related obligations of a controller (in this case Samen Veilig) is only possible in individual cases, if strictly necessary and proportional. Whether an exception is justified in a specific case will have to be weighed up by the person responsible for processing.

3.5.
It is therefore important to weigh up the interests of [the applicant] and those of Samen Veilig, at least its employees. According to Samen Veilig, as a good employer, it must protect the interests of its employees so that they can carry out their work without having to worry about their safety, and it is in their interest not to be exposed to light suspicion that their honour and good name is being tarnished. In this context, Samen Veilig states that, although the legal provisions on access to a medical file are identical to those contained in the Youth Constitution and WMO 2015, there is a fundamental difference between medical treatment and the tasks that Samen Veilig carries out. The core task of Samen Veilig is to protect the most vulnerable children and families in society, whereas medical treatment involves individual health care. Samen Veilig does not provide care or assistance. At SAVE there is usually a forced relationship with the young person and his or her parents, and the intervention of Veilig Thuis is not voluntary either. Within youth protection and at Safe Home, therefore, clients' emotions can run high about the fact that a report has been made or a child protection measure has been pronounced. Some clients seem to be aimed at deliberately damaging the staff member involved by submitting complaints, making threatening statements and/or negative reporting via social media, according to Samen Veilig.

3.6.
The court sees the importance of Samen Veilig, but is of the opinion that it has not made the correct assessment of the interests. As considered in paragraph 3.4, the exception to the right of inspection is only possible if it is strictly necessary in the individual case. The interests put forward by Samen Veilig are of a general nature. It has neither been asserted nor appeared that in the case of [the applicant] there is any reason for her to make improper use of the information that will be provided to her. Samen Veilig's defence is therefore unsuccessful. The Court will grant [the applicant]'s request to inspect the logging overview.

Re 2: data provided to third parties

3.7.
The second request made by [the applicant] is not eligible. It is a new request. On 3 March 2020 [the applicant] only requested access to the logging records, as appears from article 2.4, Samen Veilig. In spite of this, Samen Veilig provided the requested information in these proceedings. Subsequently, [the applicant] has not stated that that information is insufficient, so that the court assumes that it no longer has an interest in this part of its request, and this will therefore be rejected.

Penalty payment

3.8.
The periodic penalty payment claimed by [the applicant] will be dismissed as not having been substantiated. Moreover, it is also unlikely that Samen Veilig will not cooperate in the implementation of that decision. Samen Veilig has, in fact, cooperated to date and (wishes to) provide [the applicant] with all the information except the names of its employees.

Legal costs

3.9.
Together Veilig will be ordered to pay the costs of the proceedings as the (most) unsuccessful party. The costs on the part of [the applicant] are estimated:

- court registry fee € 304.00

- lawyer's salary € 1,086.00 (2 points x rate € 543.00)

Total € 1,390.00

4The decision
The court
4.1.
enjoins Samen Veilig, within one week of the date of this decision, to give [the applicant] access to the logs relating to her son's files, updated to the date of this decision, showing which persons consulted and/or edited (parts of) those files on what date and at what time and/or carried out other actions in respect of the data in those files;

4.2.
Orders Samen Veilig to pay the costs of the proceedings [the applicant] , amounting to € 1,390.00;

4.3.
Declares the orders provisionally enforceable;

4.4.
Dismisses the remainder of the application.

This order was issued by Mr S.H. Bokx - Boom and pronounced publicly on 2 December 2020.1