Rb. Rotterdam - ROT 22/1631
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| Rb. Rotterdam - ROT 22/1631 | |
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| Court: | Rb. Rotterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 15 GDPR Article 16 GDPR Article 8:88 General Administrative Law Act |
| Decided: | 16.12.2022 |
| Published: | 03.09.2024 |
| Parties: | Rotterdam Municipal Board |
| National Case Number/Name: | ROT 22/1631 |
| European Case Law Identifier: | ECLI:NL:RBROT:2022:11808 |
| Appeal from: | Rotterdam Municipal Board Request for access and rectification |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | rechtspraak.nl (in Dutch) |
| Initial Contributor: | Fahim.H.I. |
The Rotterdam District Court ruled on a plaintiff's request for access to and rectification of her personal data under the GDPR from the Rotterdam Municipal Board, finding the board's actions compliant with GDPR Articles 15 and 16, noting that professional opinions are not subject to rectification. The appeal was dismissed, and no damages were awarded to the plaintiff.
English Summary
Facts
The plaintiff, in search of employment, participated in a reintegration program managed by the Board. Believing the program was providing insufficient assistance, they requested access and further rectification to all the personal data related to 'monitoring', 'logging', 'control', and 'detection' for the period from January 6, 2017, to January 6, 2018.
While providing the documents in their possession, The Board stated they do not have any data in relation to the access request and further rejected the request for rectification on 7 July 2021, citing that they are not obliged to rectify professional opinions and impressions. The plaintiff objected to the rejection of their requests, which the Board declared inadmissible and partly unfounded on 18 February 2022 through a decision. In the case at hand, the plaintiff appealed the aforementioned decision.
Holding
Access to Data (Article 15 GDPR): The court held that the board conducted a reasonable search and provided all available documents. The mere suspicion of additional data was not sufficient to prove they existed, and the burden of proof of such documents lied with the plaintiff. Right to Rectification (Article 16 GDPR): The court agreed with the board that professional opinions, impressions, and conclusions are not subject to rectification. The data the plaintiff wanted to rectify fell into this category and could not be altered. Procedural Conduct: The court found that any delay in the board's decision-making was reasonable under the circumstances and in accordance with existing procedural law and cases. Conclusion: The court dismissed the plaintiff's appeal, ruling that the board had complied with its obligations under the GDPR. The plaintiff was not entitled to further data access, rectification, or compensation. Thus, the court rejected the claims for damages, including those based on alleged violations of the GDPR and delays in the procedure. The court also declined to refer preliminary questions to the Court of Justice of the European Union, stating it was unnecessary for resolving the case.
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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.
Authority Rotterdam District Court Date of judgment 16-12-2022 Date of publication 03-09-2024 Case number ROT 22/1631 Areas of law Administrative procedural law Special characteristics First instance - single Content indication Given the efforts made by the board, the court does not find the board's statement that no more documents are in its possession to be unbelievable. The board did not have to offer any more documents to the claimant for inspection or to rectify documents/passages. Appeal unfounded.” Sources Rechtspraak.nl Enriched judgment Judgment Rotterdam District Court Administrative law case number: ROT 22/1631 judgment of the single-judge chamber of 16 December 2022 in the case between [plaintiff], in [place name], plaintiff, and the board of mayor and aldermen of Rotterdam (the board), defendant, authorized representative: Mr. R.J.M. Codrington. Procedural history During the objection to an e-mail of 18 October 2018, plaintiff requested the board to grant her access to and/or provide copies of personal data from her reintegration file on the basis of the General Data Protection Regulation (GDPR) regarding 'monitoring' and 'logging' for the period from 6 January 2017 to 6 January 2018. By decision of 7 July 2021 (the rejection), the board rejected this request for access. The claimant has lodged an objection against the rejection. By decision of 18 February 2022 (the decision on the objection), the board declared the claimant's objection partly inadmissible and partly unfounded, adopting the advice of the General Objections Committee of 13 January 2022 and the reasons given therein. The claimant has appealed against the decision on the objection. The hearing took place on 24 November 2022. The claimant attended the hearing via Microsoft Teams. The representative of the board appeared in person at the hearing. Introduction 1.1. The claimant has previously made several requests for access to or provision of data. She makes these requests because she wants to check whether the data registered about her in the context of a reintegration programme is correct or complete. According to the claimant, the board does not offer her a suitable reintegration programme, which means that she is in a hopeless situation with no prospect of suitable paid employment. As a result, she states that her health has deteriorated. 1.2. During the appeal procedure on one of the requests for access (ROT 19/3092), the board acknowledged that the claimant had submitted a new request for access during the objection to the email of 18 October 2018. She had requested access to or the provision of copies of documents from her reintegration file on ‘monitoring’ and ‘logging’ in the period from 6 January 2017 to 6 January 2018. The board then forwarded this request to the Employment Department to process the request. During the objection to the rejection, the claimant expanded her request for access and requested additional information on ‘control’ and ‘detection’. In these proceedings, the upheld rejection of the claimant’s request is being reviewed. Decision-making 2. When issuing the rejection on 9 July 2021, the board provided the claimant with documents from the reintegration file, namely: a CV of the claimant, a plan of approach signed on 10 March 2017, two invitations for follow-up interviews on 4 April and 12 May 2017, an invitation to participate in a job market on 2 May 2017, a W&I customer profile created on 27 October 2017, a transfer of job seeker domain work on 27 October 2017 and an overview of monitoring and logging from 6 January 2017 to 6 January 2018. In doing so, the board states that it fully complies with the claimant's request for access. The additional information requested by the claimant during the objection phase about 'control' and 'detection' is not available because no fraud investigation has been carried out against her. The available documents do not provide sufficient basis for the claimant's claim that the board has processed even more or other personal data of her. In addition to the decision to reject, the board rejects the request for rectification of personal data made by the claimant during the objection phase. The inaccuracies that the claimant refers to are professional impressions, opinions and conclusions and the right to rectification is precisely not intended for these data. The board therefore declares the objection made by the claimant unfounded. Assessment 3.1. The court assesses whether the board was right to reject the claimant's request. It does so on the basis of the grounds for appeal that the claimant has put forward. 3.2. The court will disregard the statement of defence because this document was received on 24 November 2022 after the investigation at the hearing was closed. The court can and will include the explanation given at the hearing by the board's representative on the statement of defence in its assessment. 3.3. The court finds that the grounds for appeal of the claimant are unsuccessful and that the board was right to determine that the claimant is not eligible for the requested further inspection and rectification. The court will explain below how it arrived at this conclusion and what the consequences of this conclusion are. 4. The legal framework relevant to this case can be found in the appendix to this ruling. Request for inspection 5. The claimant argues that the board has not fully complied with her request for inspection. It cannot be otherwise than that the board has processed more or other personal data of her. It is therefore implausible that the board does not have more or other documents than the copies that it has already provided. It must also be taken into account that the board has not been sufficiently helpful in specifying the request for inspection of the claimant. It is difficult for it to determine exactly which data is involved. 6.1. According to article 15, paragraph 1, of the GDPR, the data subject has the right to inspect personal data processed about him. Article 15 of the GDPR aims to enable the data subject to take cognizance of the personal data collected about him and to check whether that data is correct and has been processed lawfully (see recital 63 of the GDPR). 6.2. The claimant requested the board to inspect and provide copies of data from her reintegration file on ‘monitoring’, ‘logging’, ‘control’ and ‘detection’ for the period from 6 January 2017 to 6 January 2018. Although the board rejected the claimant’s request, it provided her with the documents mentioned in 2. The court finds that the board has thus complied with the request for inspection. It explains this as follows. 6.3.1. The claimant’s argument that the board’s statement that there are no more documents in his possession is not credible, fails. 6.3.2. According to the established case law of the highest administrative court1, when an administrative body states that after investigation it has become apparent that a document is not or no longer in its possession and such a statement does not seem implausible, it is in principle up to the person requesting information to demonstrate that, contrary to the results of the investigation by the administrative body, a specific document is nevertheless in the possession of that administrative body. 6.3.3. The board forwarded the claimant's request to the Employment Department because this department is responsible for (among other things) reintegration procedures. The Employment Department conducted a search in the digital system RAAK using the search term 'reintegration' within the period from 6 January 2017 to 6 January 2018. This search yielded the documents mentioned in 2 and the claimant was given access to these by means of the copies provided to her on 9 July 2021. The board explained the absence of documents on 'control' and 'detection' by stating that no fraud investigation had been conducted into the claimant. Given the efforts made by the board, the court does not find the board's statement that there are no more documents in its possession to be implausible. The claimant's mere conviction that the board must have more documents is merely a suspicion and insufficient to make it plausible that there are more documents in the board's possession. 6.4.1. The claimant's argument that the board was insufficiently helpful in specifying the request for access is also unsuccessful. It follows from the rejection decision that the board offers the claimant the opportunity to make an appointment with her work consultant to view her file. The board has also previously offered the claimant this opportunity. By making use of this, the claimant can find out what other personal data her file contains. The fact that the claimant does not make use of this because she prefers to receive digital screenshots is at her own risk. Request for rectification 7. The claimant argues that the board wrongly rejected her request for rectification of her personal data. At the hearing, the claimant explained, when asked, that she wanted to have the comments about her employment history and her application behaviour in the W&I customer profile and the monitoring and logging overview rectified. This ground for appeal failed. The court will explain this below. 8.1. According to Article 16 of the GDPR, the data subject has the right to obtain immediate rectification of incorrect personal data concerning him from the controller. 8.2. To the extent that the claimant argues that professional impressions, opinions and conclusions also fall under the right of rectification under the GDPR, this fails. In the context of an earlier request for access by the claimant, the court has already answered this legal question and ruled that the right of rectification does not apply to professional impressions, opinions and conclusions.2 The highest administrative court has endorsed this position of the court.3 8.3. To the extent that the claimant argues that the board wrongly states that the rectifications she intended relate to professional impressions, opinions and conclusions, this also fails. On page 8 of the W&I customer profile, the relevant employee of the municipality notes that it can be inferred from the claimant's CV that she has done little paid work in her life. This comment does not relate to a determination of the paid employment history expressed in figures, but to a subjective assessment thereof, and therefore to a professional impression, opinion or conclusion. The same applies to the comment that the claimant is not prepared to apply for vacancies below her level on page 20 of the monitoring and logging overview. Given the context in which this statement was made, this is also a professional impression, opinion or conclusion and not a fact. It is also important that the board stated during the objection phase that the claimant can, if desired, have her written opinion added to the reintegration file. If she wishes to make use of this, she must indicate to which document the addition is desired. This possibility was pointed out to her again in the advice of the General Appeals Committee and at the hearing by the representative of the board. The fact that the claimant does not see the point of this does not detract from this. 8.4. To the extent that the claimant argues that at the time of the decision on the objection, national law did not offer her sufficient legal protection and that this lack of legal protection must be supplemented with the Charter of Fundamental Rights of the European Union (hereinafter: Charter), this also fails. The GDPR entered into force on 25 May 2016 and applies from 25 May 2018. The decision on the objection dates from after 25 May 2018. The law that applies and that was actually applied is the GDPR. There are therefore no grounds for the judgment that the claimant was not offered effective legal protection because the national law provisions of the Personal Data Protection Act were wrongly not supplemented with provisions from the Charter.4 Negligent conduct during the objection phase 9.1. The claimant argues that the decision on the objection was reached without due care because the board only decided on her objection after more than six months. This ground for appeal fails. Insofar as the decision period has been exceeded, this does not make the decision on the objection unlawful. The appropriate way to address an exceedance of a decision period is to put the administrative body in default and then appeal to the court for failure to decide on time. The fact that the claimant has not used this legal remedy is at her own risk. 9.2. Insofar as the claimant objects to the decisions to postpone the decision period (of 16 September 2021, 5 October 2021 and 3 January 2021), she cannot appeal against them on the basis of Article 8:4, first paragraph, opening sentence and under c, of the General Administrative Law Act. Moreover, the decision period was postponed the last time at the request of the claimant herself. Abuse of rights 10. The ground for appeal that the board wrongly accused the claimant of abuse of rights fails. The court notes that the board did not accuse the claimant of abuse of rights in this case. Nor did the board accuse the claimant of abuse of rights in any other way in this case. To the extent that the claimant argues that the board wrongly accused her of abuse of rights in previous or other cases, these cases are not subject to review in this appeal. Damages 11. The claimant requests the court to order the board to pay damages in the amount of €500 per half year calculated from the moment the request for inspection was submitted. 12.1. To the extent that the claimant requests damages due to the exceeding of the reasonable period as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the court rejects this. Based on established case law5, the court has not adjudicated a case within a reasonable period if it does not render a decision within two years after the administrative body has received the notice of objection. On 18 August 2021, the claimant lodged an objection to the rejection of 7 July 2021 (issued on 9 July 2021). This decision was made on 16 December 2022. There are therefore approximately 1 year and 4 months between the moment of receipt of the notice of objection and the decision. That is still well within the reasonable period of two years. 12.2. To the extent that the claimant requests compensation on the basis of Article 8:88, first paragraph, under a and b, of the General Administrative Law Act, the court rejects this, as this case does not concern an unlawful decision. 12.3. To the extent that the claimant requests compensation on the basis of Article 8:88, first paragraph, under c, of the General Administrative Law Act due to the failure to decide on an objection in a timely manner, the court also rejects this. It follows from the case law of the highest administrative court6 that the mere fact that an administrative body takes a decision in excess of the statutory decision period is insufficient for the judgment that liability exists on the basis of Article 6:162 of the Civil Code for damage that may result from that exceeding of the period. That period is primarily intended to allow the administrative body to decide expeditiously and to provide clarity to those involved about the period within which the decision can be expected. The statutory decision period is not intended in itself to also protect against possible damage that may arise for an interested party if the decision is not made within that period. The issue is whether the exceeding of the decision period was reasonably acceptable in light of the circumstances of the case (that is to say: was not negligent towards the person involved). To the extent that the board has already exceeded the decision period, the court finds the excess in this specific case to be reasonably acceptable. In doing so, the court takes into account that this concerns a possible exceedance of the term of (at most) two months, that the board offered the claimant a remedy in the objection, that she adjusted and expanded her request in the objection phase and that the decision period was extended once at her request. Furthermore, it has not been demonstrated that she insisted on obtaining a decision during the period in which the decision period would have been exceeded, for example by putting the board in default. The court therefore finds it plausible that the board was not aware of the claimant's (financial) interests in obtaining a decision, or were insufficiently aware of them.7 12.4. To the extent that this request must be interpreted as a request for compensation as referred to in Article 82 of the GDPR, the court also rejects this. Since no infringement of this regulation has been demonstrated, Article 82 of the GDPR alone does not provide a basis for the damage claimed by the claimant. Preliminary questions 13. The court sees no reason to submit preliminary questions. Answering the questions raised by the claimant is not necessary for a solution in this case. Furthermore, the Court of Justice of the European Union cannot rule on the provisions of the ECHR, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights cited by the claimant in the proposed preliminary questions because these are not EU law. Conclusion and consequences 14. The appeal is unfounded. This means that the claimant is not in the right. The board therefore did not have to offer the claimant any more documents for inspection or to rectify documents/passages. Furthermore, the claimant is not eligible for compensation. 15. The claimant will therefore not be reimbursed for the court fee and is also not entitled to an award of costs. Decision The court declares the appeal unfounded. This decision was made by Mr E. Lunenberg, judge, in the presence of Mr D.J. Bes, registrar. This decision was made in public no later than 16 December 2022. The registrar and the judge are unable to sign the decision registrar judge A copy of this decision was sent to the parties on: Do you disagree with this decision? If you disagree with this decision, you can send a letter to the Administrative Jurisdiction Division of the Council of State explaining why you disagree. This is called an appeal. You must file this appeal within 6 weeks after the date on which this decision was sent. You can see this date above. APPENDIX General Data Protection Regulation According to Article 6, paragraph 1, processing is only lawful if and to the extent that at least one of the following conditions is met: a. a) the data subject has given consent to the processing of his personal data for one or more specific purposes; b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; c) processing is necessary for compliance with a legal obligation to which the controller is subject; d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. Pursuant to Article 13(1), where personal data relating to a data subject are collected from that data subject, the controller shall provide the data subject at the time when the personal data are obtained with all of the following information: a. (a) the identity and contact details of the controller and, where applicable, of the controller's representative; b) where applicable, the contact details of the data protection officer; c) the purposes of the processing for which the personal data are intended and the legal basis for the processing; d) the legitimate interests pursued by the controller or by a third party, where the processing is based on point (f) of Article 6(1); e) where applicable, the recipients or categories of recipients of the personal data; (f) where applicable, that the controller intends to transfer the personal data to a third country or an international organisation; whether or not there is an adequacy decision by the Commission; or, in the case of transfers referred to in Article 46, Article 47 or the second subparagraph of Article 49(1), what the appropriate or suitable safeguards are, how to obtain a copy of them or where they can be accessed. Pursuant to Article 15, the data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information: a. (a) the purposes of the processing; b) the categories of personal data concerned; c) the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations; d) where possible, the envisaged period for which the personal data will be stored, or, if that is not possible, the criteria used to determine that period; e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning him or her, as well as the right to object to such processing; f) the existence of the right to lodge a complaint with a supervisory authority; g) where the personal data are not collected from the data subject, any available information as to their source; h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject. Pursuant to Article 16, the data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by providing a supplementary statement. Pursuant to Article 82(1), any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered. Pursuant to Article 99(1), this Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Pursuant to Article 99(2), it shall apply from 25 May 2018. General Administrative Law Act Pursuant to Article 7:10(3), the administrative body may postpone the decision for a maximum of six weeks. Pursuant to Article 7:10(4)(a) and (b), further postponement is possible provided that (a) all interested parties agree; ( b) the person lodging the objection agrees to this and the interests of other interested parties cannot be harmed as a result. Pursuant to Article 8:4, first paragraph, under c, no appeal may be lodged against a decision as referred to in Article 7:1a, fourth paragraph, 7:10, second, third or fourth paragraph, or 7:24, third to sixth paragraph. Pursuant to Article 8:88, first paragraph, opening sentence and under a, b or c, the administrative court is authorised, at the request of an interested party, to order an administrative body to pay compensation for damage that the interested party suffers or will suffer as a result of a. an unlawful decision; b. another unlawful act in preparation for an unlawful decision; c. failure to take a decision in a timely manner; 1See, for example, the judgment of the Administrative Jurisdiction Division of the Council of State (Division) of 3 March 2021, ECLI:NL:RVS:2021:452. 2See judgment of 9 April 2021, ECLI:NL:RBROT:2021:3034. 3See the Divisional judgment of 20 July 2022, ECLI:NL:RVS:2022:2053. 4Idem. 5See the judgment of the Supreme Court of 19 January 2016, ECLI:NL:HR:2016:252. 6See the Divisional judgment of 9 December 2020, ECLI:NL:RVS:2020:2914. 7Compare the judgment of the Trade and Industry Appeals Tribunal of 13 July 2021, ECLI:NL:CBB:2021:723.
