Rb. Noord-Holland - HAA 19/4807

Rb. Noord-Holland - HAA 19/4807
Court:	Rb. Noord-Holland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 12(3) GDPR
Decided:	16.07.2020
Published:	28.07.2020
Parties:	Executive board of the municipality of Haarlem
National Case Number/Name:	HAA 19/4807
European Case Law Identifier:	Zoekresultaat - inzien document ECLI:NL:RBNHO:2020:5342
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtbank Noord-Holland (in Dutch)
Initial Contributor:	n/a

The District Court of the Northern Netherlands declared valid an objection against its earlier decision to fine municipality of Haarlem for failing to make a decision on a data subject access request under GDPR and the Dutch Administrative law.

English Summary

Facts

Complainant has submitted a data subject access request to the executive board of the municipality of Haarlem on 24th of July 2019. On 26th of October 2019 complainant lodged an appeal in connection with a failure to take action on his request. On 20th of December 2019 the municipality made a decision on the request. On 7th of February 2020 the District Court of the Northern Netherlands declared the appeal well founded and ordered the municipality to pay a penalty of EUR 1 442 to the complainant and cover the court fee of EUR 174. The municipality has opposed to this judgement.

Dispute

The Court must decide whether the appeal of the complainant can be considered well-founded without a reasonable doubt. The municipality is of the opinion that the judgement of the 7th of February 2020 did not take into account the argument that the claimant was abusing his rights in order to get paid for the delayed decision on the right of access. Complainant completely ignored requests to provide additional information necessary to action the access request, such as a request for a copy of an ID. Furthermore, the complainant's letter sent to the municipality on 24th of August 2019 cannot be viewed as a penalty payment notice under Article 6:2 of the Dutch Administrative Law Act because the content of that letter doesn't make it clear what request it refers to, the municipality is not requested to make a decision within a certain period of time and the letter does not clearly state that a penalty payment will be required in the absence of such decision. The claimant is of the opinion that there was no abuse of rights; the letter constitutes a valid penalty payment notice of because the municipality hasn't disputed its validity in the previous proceedings and because penalty payment notices were allowed to be submitted in free form.

Holding

The Court established that the parties were not disputing the fact that the decision on the complainant's access request under GDPR should have been taken within one month from the moment of its receipt. This means that the complaint had ground for sending a penalty payment notice to the municipality. The Court has also agreed that such notice can be submitted in a free form. However, the Court ruled that the complainant's letter of 24th of August 2020 failed to urge the municipality to make a decision on his request within a specific time frame, which means it cannot be considered a valid penalty payment notice under the Dutch Administrative law. The objection of the executive board of the municipality of Haarlem is upheld, complainant's appeal is not well-grounded.

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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.

ECLI:NL:RBNHO:2020:5342 
Authority
Court of North Holland
Date of pronunciation
16-07-2020
Date of publication
28-07-2020 
Case number
HAA 19/4807
Jurisdictions
Administrative law
Special features
First instance - single
Resist
Content indication
Resistance well-founded. Action inadmissible. Is the letter of 27 August 2019 to be regarded as a letter of formal notice?
Sites
Rechtspraak.nl 
Enriched pronunciation 
Ruling
NORTH-HOLLAND COURT
Place of session Haarlem
Administrative law
Case number: HAA 19/4807
Judgment of the Single Chamber of 16 July 2020 on the opposition of
the College of Mayor and Aldermen of the municipality of Haarlem, opponent,
and judgment in the appeal case between
[plaintiff] , at [residence] , plaintiff, 
and
the College of Mayor and Aldermen of the municipality of Haarlem,
defendant.
Process sequence
By letter of 26 October 2019, the plaintiff lodged an appeal in connection with the failure to take a decision on his request for access under the General Data Protection Regulation (hereinafter: AVG) of 24 July 2019 on time.
By decision of 20 November 2019, the opposing party decided on the claimant's application. 
By judgment of 7 February 2020, this court, sitting in Haarlem, declared the appeal to be well-founded, determined that the opponent forfeited a penalty of € 1,442 to the plaintiff and ordered the opponent to pay the court fee of € 174 to the plaintiff.
The opponent opposed this judgment. 
The hearing took place on 29 June 2020. Claimant has appeared. The parties did not appear with notice of inability to attend. 
Considerations
1. The court ruled in the appeal case without a hearing. Article 8:54 of the General Administrative Law Act (hereafter: Awb) offers this possibility if the final judgment is beyond reasonable doubt. 
2. In this opposition case, the Opposition Judge assesses in the first place whether the out-of-court ruling was right, that there is no reasonable doubt that the appeal is well-founded. The further content of the grounds of appeal is up to the court in this case if the objection is well-founded.
3. The opponent submits, in summary, the following. The judgment of this court of 7 February 2020 does not address the opponent's argument of 13 November 2019 that the plaintiff is guilty of an abuse of rights. The plaintiff misused the right of inspection to which he is entitled under the AVG in order to collect a penalty payment for failure to make a timely decision. The plaintiff does not respond at all to requests from the opponent that would make it possible to deal with the substance of his request. If the plaintiff had been asked to inspect the processing of his personal data at the defendant's premises, he would have submitted a copy of a means of identification that would enable the defendant to examine the substance of the request and provide the plaintiff with an overview. In addition, plaintiff's letter of 27 August 2019 cannot be regarded as a notice of default as a result of which the condition of Section 6:12(2)(b) of the General Administrative Law Act has not been met. The contents of this letter cannot be traced back to the original application for the decision to be taken. Nor is the opposing party given notice to take a decision within a certain period of time (see judgment of the Administrative Jurisdiction Division of the Council of State (hereinafter: Division) of 5 December 2012, ECLI:RVS:2012:BY5083). Furthermore, the plaintiffs' letter of 27 August 2019 does not clearly state that he requires a decision and that a penalty payment will be demanded in the absence of such a decision. The request in the letter to "proceed expeditiously herein" is too indeterminate. A single reference to "my letter of 24 July 2019" does not make it sufficiently clear to the opponent which request has been made and which decision is required. The plaintiff's letter of 27 August 2019 cannot be regarded as a notice of default as a result of which the condition of Article 6:12(2)(b) of the General Administrative Law Act has not been met.
4. The plaintiff, on the other hand, argues the following. There is no abuse of rights. In its statement of defence of 11 November 2019, the opponent did not put forward the ground with regard to the notice of default. Due to the absence of this ground in the statement of defence, plaintiff's position that there was a valid notice of default remained undisputed. In the alternative, plaintiff argues that it can be deduced from the history of the law that an important point of departure when formulating the penalty payment scheme was low threshold for citizens. The freedom of form of the notice of default is emphasized in the Explanatory Memorandum, Parliamentary Papers II 2004/2005, 29 934, page 3). According to the decision of the Section of 24 December 2014, ECLI:NL:RVS:2014:4682, my letter of 15 February 2019 meets the three requirements for a notice of default. 
5. The Court finds that the plaintiff has lodged an appeal against the failure to decide in due time on his application of 24 July 2019. It is not disputed between the parties that the opponent rightly regarded the claimant's request as a request for access to personal data relating to him under the AVG and that, in view of Article 12(3) of the AVG, the opponent should in principle have decided within one month of receiving the opponent's request. It is clear that the one-month period for taking a decision has expired, since the opponent decided on the claimant's request by decision of 20 November 2019. The plaintiff was therefore entitled to give notice of default to the opponent. 
6. Subsequently, the District Court must assess whether the plaintiff gave notice of default to the opponent with the letter of 27 August 2019. 
6.1
In the judgment of 24 December 2014 of the Section to which the plaintiff refers, the following was considered. A notice of default as referred to in Section 4:17(3) of the General Administrative Law Act is deemed to have been served if it is clear that the interested party is still giving the administrative body notice to take a certain decision. This is the case if it is sufficiently clear to which application the written document relates, if the interested party takes the position that the administrative body did not decide on the application in time and if the interested party insists that such a decision be taken after all. 
6.2
The District Court agrees with the opponent that the notice of default is in principle free of form. However, a notice of default is subject to requirements. These requirements were already set for the notice of default even before the judgment mentioned by the opponent, but have been clarified in this judgment. 
6.3.
In the letter of 27 August 2019, the plaintiff stated the following:
"With this letter, I ask you to make a decision on my letter of 24 July 2019. As I am of the opinion that a decision has not been taken in due time, I ask you to proceed expeditiously'.
6.4
The Court is of the opinion that this letter concerns a reminder of an ongoing request and the notification of the wish to receive a decision on that request as soon as possible. The plaintiff asks the opponent to proceed expeditiously. It cannot be deduced from the letter that the plaintiff wanted to urge the opponent to make a decision on the request within a certain period of time or that a penalty payment will be claimed if the decision is not made within a reasonable period of time (see, inter alia, the judgments of the Division of 23 July 2014, ECLI:NL:RVS:2014:2717 and of the Court of Appeal of 23 July 2014, ECLI:NL:RVS:2014:2717). 
29 January 2020, ECLI:NL:RVS:2020:291). The letter of 27 August 2019 is therefore not to be considered as a letter of formal notice. This ground fails.
6.5
Now that the letter of 27 August 2019 has not been served with notice of default and has not turned out to be another letter with which the opponent has been declared in default, the plaintiff has not met the conditions for lodging an appeal against the failure to decide in time, as stipulated in Article 6:12(2)(b) of the General Administrative Law Act (Awb). It follows from what the opponent argued that the court in the out-of-court judgment wrongly ruled that the appeal was manifestly, i.e. beyond reasonable doubt, well-founded and wrongly dismissed the case without a hearing. The objection is well-founded. This means that the out-of-court settlement lapses and the court resumes the investigation in the state it was in before the out-of-court settlement was made. 
7. In view of the provisions of Section 8:55(10) of the Awb, the District Court will now hear the claimant's appeal.
7.1
The court finds that plaintiffs' grounds of appeal are exactly the same as the grounds he put forward in the opposition proceedings. In this respect, the court refers to paragraphs 6 through 6.6. The appeal is therefore inadmissible. 
7.2
There are no grounds for an order to pay costs. 
Decision
The court: 
* -
declares the resistance well-founded;
* -
dismisses the application as inadmissible. 
This decision has been made by Mr. J.H.A.C. Everaerts, judge, in the presence of Mr. M. Belhaj, registrar. The decision was made on July 16, 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. 
registrar judge
Copy sent to parties on: 
Legal remedy
There is no right of appeal against this decision, insofar as it has been decided on the objection. An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State within six weeks after the date on which the appeal was sent, insofar as a decision was made on the appeal. 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 decision.