Rb. Midden-Nederland - UTR 19/3302

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Rb. Midden-Nederland - UTR 19/3302
CourtsNL.png
Court: Rb. Midden-Nederland (Netherlands)
Jurisdiction: Netherlands
Relevant Law:

Article 6 GDPR

Article 17 GDPR

Article 82 GDPR

Decided: 9.4.2020
Published: 20.4.2020
Parties:

Ηet college van burgemeester en wethouders van de gemeente Utrecht

National Case Number: UTR 19/3302
European Case Law Identifier: ECLI:NL:RBMNE:2020:1487
Appeal from: n/a
Language: Dutch
Original Source: de Rechtspraak (in NL)

The Court of First Instance of the Central Netherlands decided the processing of data between several local authorities to prevent abuse of the Freedom of information act was proportionate, legitimate and compliant with the GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

Different local authorities were exchanging per email the contact details of an applicant asking to access document under the freedom of information act. This processing of personal data was done in order to prevent abuse of the system of access to documents. The plaintiffs asked for damages for violation of the GDPR after he objected to the use of his/her data in this context.

Dispute[edit | edit source]

The Court had to decide whether the processing was compliant with the GDPR: proportionate, compliant with the data minimization principle, and had a valid ground.

Holding[edit | edit source]

The Court held that the processing of personal data in this context was appropriate, proportionate and compliant with the GDPR since there was no other less intrusive way for the local authorities to prevent abuse of the freedom of information act.

Comment[edit | edit source]

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Further Resources[edit | edit source]

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

Authority
Court of the Central Netherlands
Date of pronunciation
09-04-2020
Date of publication
20-04-2020
Case number
UTR 19/3302
Jurisdictions
Administrative law
Special features
First instance - single
Content indication
Request data erasure e-mail message from 2013. The WBP applies to data processing and on request AVG. Data processing was lawful, because it was necessary for the public task, i.e. the performance of the Wob. Appeal unfounded.

Locations
Rechtspraak.nl
Enriched pronunciation
Ruling
CENTRAL COURT
Sitting place Utrecht

Administrative law

Case number: UTR 19/3302


judgment of 9 April 2020 of the single chamber in the case between
[plaintiff] at [residence] , plaintiff
(Agent: N.G.A. Voorbach),

and

the Municipal Executive of the Municipality of Utrecht, defendant
(Agent: Mr A. Braxhoven).

Process sequence
By order of 7 March 2019 (the primary order), the defendant dismissed as manifestly inadmissible the claimant's request for erasure of data and damages.

By decision of 24 July 2019 (Contested Decision I), the defendant dismissed the claimant's objection as unfounded.

The plaintiff appealed against the contested Decision I.

By decision of 9 December 2019 (Contested Decision II), the defendant amended Contested Decision I on the ground that it wrongly failed to deal with the substance of the objection and declared the claimant's objection well-founded to that extent.

The hearing took place on 12 March 2020. The plaintiff was represented by his agent. The defendant was represented by his representative.

Considerations
The contested decision I
1. In the contested decision I, the defendant dismissed the claimant's objection as unfounded on the ground that, in the defendant's view, the claimant's application had rightly been declared manifestly inadmissible. In Contested Decision II, the defendant replaced Contested Decision I and proceeded to consider the substance of the application and objection. Pursuant to Article 6:19 of the General Administrative Law Act (Algemene wet bestuursrecht (Awb)), the appeal also relates by operation of law to the contested decision II.

2. Since the contested decision I has been replaced by the contested decision II and it has not become apparent that the plaintiff still has an interest in a substantive assessment of the contested decision I, the court will declare the appeal against the contested decision I inadmissible.

Application

3. The plaintiff requested the defendant to delete his personal data on the basis of Article 17 of the General Data Processing Regulation (AVG). It has become apparent to him that data has been processed by means of publication on the VNG Forum and by forwarding his personal data by e-mail to other administrative bodies. These data processing operations were unlawful. For this reason, the claimant also requests compensation pursuant to Article 82 of the AVG.

4. In the contested Decision II, the defendant indicated that the claimant must address its request for the removal of data processing at the VNG Forum to the VNG itself. As regards the forwarding of personal data by e-mail, the defendant acknowledges that Mr [A] sent an e-mail message to other municipalities about the claimant on 20 August 2013 (e-mail message). This e-mail message has already been deleted. Furthermore, the defendant takes the position that the data processing in the e-mail message was lawful. The

e-mail was sent in the context of the implementation of the Government Information (Public Access) Act (Wob), which is a public duty. The exchange of personal data served to prevent the Wob from being misused for the collection of periodic penalty payments. This processing was therefore necessary and in accordance with the principles of proportionality and subsidiarity. There is no reason to award damages. According to the defendant, the claim for damages must be submitted to the civil court.

Legal interest

5. At the hearing it appeared that the plaintiff's appeal only relates to the defendant's e-mail message. The defendant did not process any data at the VNG Forum. It has not been disputed that the defendant has already deleted the e-mail message. According to the claimant, it is in the interest of the defendant to pay damages because the defendant would have unlawfully processed his personal data with the e-mail message. As a result, the claimant no longer has any control over his own personal data. The court assumes that there is an interest in assessing the lawfulness of the data processing with a view to possible compensation for damages and therefore assumes that the plaintiff has an interest in assessing his appeal.

Assessment framework

6. The plaintiff argued that the question of lawfulness should be assessed on the basis of the AVG. Transitional law covers only certain cases. Although the data processing took place when the Personal Data Protection Act (Wpb) was valid, the AVG entered into force on 25 May 2018 and must be assessed on the basis of the ex nunc principle. The plaintiff refers to various judgments in this respect.1

7. The court finds that the AVG entered into force on 25 May 2018 and has immediate effect. The AVG also applies to the legal consequences of facts that occurred prior to its entry into force. However, the question whether the data processing is lawful in 2013 must be assessed on the basis of the Wpb, because this Act was applicable at the time the data processing took place. The immediate effect of the AVG does not mean that facts that took place before the AVG entered into force must also be assessed on the basis of the AVG. In the case of legal consequences of those facts after the AVG entered into force, such as the right to erasure of personal data or the right to compensation, the AVG applies. In the judgements referred to by the plaintiff, the court sees no negation of this principle. The court will therefore assess on the basis of the Wbp whether the data processing in the e-mail message was lawful.

Necessity

8. Plaintiff argues that the data processing was not necessary and that it is up to the defendant to prove that there were well-founded indications of abuse of the Wob. Furthermore, the defendant's findings were not submitted to him. It would have been up to the defendant to ask him how many administrative bodies he had submitted his Wob application to.

9. The District Court put first and foremost that the processing of personal data under the Wbp is only allowed on the basis of one of the processing principles listed in Section 8 of the Wbp. Pursuant to Section 7 of the Wbp, personal data may only be collected for specific, explicit and justified purposes.

10. The District Court considers that the implementation of the Wbp is a public law duty of the defendant. For the proper functioning of the Wob, it is important to investigate abuse of the Wob for the collection of periodic penalty payments and to establish any abuse. At the hearing, the defendant explained that many Wob requests were submitted in 2013 and that it was necessary to send the e-mail message to verify whether there was abuse of the Wob. Furthermore, the defendant explained undisputedly that the plaintiff submitted several Wob applications to various municipalities. Incidentally, it is not important in this context that the e-mail message states that the plaintiff did not submit an objection to the defendant. Pursuant to Section 8(e) of the Wbp, the data processing may also be of importance to the administrative body to which the data are provided. The District Court is of the opinion that the defendant has made it sufficiently plausible that the data processing with the e-mail message was necessary.

Proportionality and subsidiarity

11. Furthermore, the claimant argues that the defendant wrongly failed to examine whether it was possible to achieve the purpose of the data processing without providing personal data, or to limit it to the minimum. It would have been sufficient for the defendant to process only a pseudonym or the domicile of the claimant. In addition, the defendant could have asked the plaintiff how many administrative bodies he had submitted a Wob application to.

12. The District Court is of the opinion that the data processing in the e-mail message also meets the requirements of proportionality and subsidiarity. With the processing of less or no data, it was not possible for the defendant to properly fulfil his public task and to communicate clearly about this. In addition, as part of the proper fulfilment of the public duty, the defendant wanted to build up a file for the determination of possible abuse of the Wob, which is why the defendant did not have to first contact the plaintiff before sending the e-mail message.

Data processing lawful

13. Because the data processing of the plaintiff's name and domicile in the

e-mail was necessary and complies with the principles of proportionality and subsidiarity, the data processing is lawful. For this reason already, the court is not entitled to adjudicate the claim for damages, which was explained at the hearing.

14. The appeal is unfounded. There are no grounds for an order to pay costs.

Decision
The court:

-
Dismisses the action brought against the contested Decision I as inadmissible;

-
Dismisses the action brought against contested Decision II as unfounded.

This judgment was delivered on 9 April 2020 by Mr L.A. Banga, judge, in the presence of

Mr. A. Wilpstra-Foppen, Registrar. As a result of measures concerning the coronavirus, this judgment was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this verdict will still be pronounced in public.