Rb. Zeeland-West-Brabant - AWB- 20 5255
|Rb. Zeeland-West-Brabant - AWB- 20_5255|
|Court:||Rb. Zeeland-West-Brabant (Netherlands)|
|Relevant Law:||Article 12 GDPR|
|National Case Number/Name:||AWB- 20_5255|
|European Case Law Identifier:||ECLI:NL:RBZWB:2020:2631|
|Original Source:||Uitspraken (in Dutch)|
The plaintiff requests the establishment of two penalty payments, with respect to the failure to decide in time on his request for inspection and with respect to the failure to decide in time on an objection. The court order the minister to take a decision subject to a daily penalty.
English Summary[edit | edit source]
Facts[edit | edit source]
The plaintiff asked the minister of justice to access personal data on his detention. The minister did not answered within the deadline.
Dispute[edit | edit source]
Holding[edit | edit source]
The court instructs the Minister, within four weeks of the date of dispatch of the decision, to take a decision of the complainant and order the payment of € 100 for each day without taking such a decision. The court also decides on a penalty of 1442 euros for failure to decide on the objection in good time.
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Court of Zeeland West Brabant Date of pronunciation 19-06-2020 Date of publication 03-07-2020 Case number AWB- 20_5255 Jurisdictions Administrative law Special features First instance - single Content indication AVG Sites Rechtspraak.nl Enriched pronunciation Ruling SEAS-WEST BRABANT COURT Administrative law Case number: BRE 20/5255 AVG Judgment of the Single Chamber of 19 June 2020 in the case between [name plaintiff] , at [place name] , plaintiff and the Minister for Legal Protection, defendant. Litigation The plaintiff has lodged an appeal against the Minister's failure to take a decision on his request for access to personal data under the General Data Protection Ordinance (AVG) on time. The court has decided to speed up the handling of the appeal, pursuant to Section 8.2.3 of the General Administrative Law Act (Awb). The court then applied Section 8:54(1) of the General Administrative Law Act (Awb), so that no hearing was required. Considerations 1. On 26 May 2019 the plaintiff requested the Head of D&R of the Penitentiary Institution Vught (PI Vught) on the basis of the AVG to inspect processed personal data relating to the ZBBI/PP detention phase of the plaintiff. By order of 1 July 2019, the Minister granted access by providing three documents. By letter of 31 July 2019, the claimant submitted an (additional) request for access to missing decisions, recommendations, reports and (interim) reports. In doing so, he referred to the AVG and the decision period referred to therein. By letter of 2 September 2019, the claimant submitted a notice of default because no decision had yet been taken on his request of 31 July 2019, while the period for making a decision had expired. He requested that a decision be made within two weeks, with reference to the penalty arrangement in Article 4:17 of the Awb. By decision of 22 October 2019 (primary decision), the Minister granted access to two documents. It was stated that the reporting of team meetings and/or interviews is related to official applications and advice. These are not transparent in the penitentiary file and will be destroyed after dismissal. In a letter dated 4 November 2019, the plaintiff objected to the primary decision and also requested that the forfeiture and amount of the penalty payment for failure to make a timely decision be determined at his request. By letter of 19 January 2020, the claimant submitted a notice of default because a decision on the objection had not yet been taken, while the period for making a decision had expired. He requested that a decision on his objection be taken within two weeks, with reference to the penalty payment arrangement in Article 4:17 of the Awb. By letter of 10 March 2020, the claimant lodged an appeal against the Minister's failure to take a decision on the objection on time. By letter of 6 May 2020, the Minister submitted the documents relating to the proceedings and a statement of defence. Failure to decide in time 2. An appeal may be lodged against failure to take a decision in time (Article 6:2, opening words and under b, in conjunction with Article 7:1, paragraph 1, opening words and under f, of the General Administrative Law Act). The notice of appeal may be lodged as soon as the administrative body is in default of taking a decision on time and two weeks have elapsed since the administrative body received a written notice of default (Section 6:12(2) of the Awb). The administrative body shall decide on the objection within six weeks of the day on which the objection period has expired (Section 7:10(1) of the General Administrative Law Act). If the administrative body has set up an appeals committee, the decision period is twelve weeks after the day on which the objection period has expired (Sections 7:10(1) and 7:13 of the Awb). In the notice of defence the Minister confirmed that the decision on the claimant's objection was not made in time and that a notice of default had been received. The Minister is of the opinion that the AVG does not apply to plaintiffs' request, but the Judicial and Criminal Records Act (Wet justitiële en strafvorderlijke gegevens, Wjsg) applies. Subsequently, the Minister takes the position that by providing the documents to the plaintiff and offering the possibility to inspect his penitentiary file by telephone, the obligation to inspect has been fulfilled. The District Court is of the opinion that the Minister, stating his position in the statement of defence, has still not (formally) decided on the claimant's objection. The Minister has confirmed that he did not decide on the claimant's objection in time and has received a notice of default dated 19 January 2020. The documents in the file do not show the date on which the Minister received the notice of default. The Court deems it plausible that the notice of default was received by the Minister one day after the date, i.e. 20 January 2020. The District Court finds that (more than) two weeks have elapsed since then. The appeal is manifestly well-founded. 3. Pursuant to Section 8:55d(1) of the Awb, the District Court determines if the appeal is well-founded and a decision has not yet been announced that the administrative body shall publish a decision within two weeks of the day on which the decision is sent. In view of the measures that currently apply in the Netherlands to prevent the spread of the corona virus COVID-19, the District Court is of the opinion that there is now a special situation as referred to in Section 8:55d(3) of the Awb. The District Court will therefore rule that the Minister must still take and send a decision on an objection within four weeks of the day on which this decision is sent. Pursuant to Section 8:55d(2) of the Awb and in accordance with national policy (published on www.rechtspraak.nl), the District Court stipulates that the Minister must pay a penalty of € 100 for each day by which the aforementioned period is exceeded, subject to a maximum of € 15,000. Penalty payment 4. Pursuant to Article 8:55c of the General Administrative Law Act (Awb), if the appeal is well-founded, the District Court shall, if so requested, also determine the amount of the penalty payment forfeited pursuant to Section 4.1.3. The plaintiff requests the establishment of two penalty payments, with respect to the failure to decide in time on his request for inspection and with respect to the failure to decide in time on an objection. The Minister states that no periodic penalty payments have been forfeited, since it concerns the processing of personal data pursuant to the Wjsg. The provisions with regard to periodic penalty payments in the Awb are excluded on the grounds of Article IIB of the Penalty Payments Act (Wet dwangsom en beroep bij niet tijdig beslissen op hierop). 5. Pursuant to Article IIB of the Penalty Payments and Appeals for late decisions (insofar as relevant here), paragraph 188.8.131.52 of the Awb is not applicable for three years after the date on which Article 4:16 of that Act expires, with regard to decisions taken under Title 2, Section 5 of the Wjsg and with regard to decisions on appeals made against such decisions, insofar as not otherwise provided by statutory regulation or by decision of the administrative body. 6. The Court is of the opinion that the penalty payment regulation in Section 184.108.40.206 of the General Administrative Law Act does apply to this dispute. The Minister's decisions of 1 July 2019 and 22 October 2019 do not show that the Minister has assessed the claimants' request against the AVG or the Wjsg. Even if the Wjsg is applicable, the penalty payment scheme is not excluded. Article 4:16 of the General Administrative Law Act expired on 1 October 2009. Nor is there a decision under Title 2, Section 5 of the Wjsg in this case, which relates to a statement of conduct. 7. The Court rejected the request for determination of the forfeited penalty payment with respect to the failure to decide on the claimant's request for inspection in time, because the conditions as set out in Section 8:55c of the Awb have not been met. This failure to decide in time on the claimant's request for inspection is not at issue. The appeal has only been upheld with regard to the failure to decide in time on the applicant's objection. This does not detract from the fact that the Minister, when assessing the complainant's objection, must also decide on his request to determine the penalty payment that has been forfeited. 8. Now that the appeal against the failure to decide on the claimant's objection in time has been declared well-founded, the District Court will, at the claimant's request, determine the amount of the penalty payment for failure to decide on the objection in time. The notice of default with respect to the failure to decide on the objection in time is dated 19 January 2020. For this purpose, the District Court assumed receipt of the notice of default from the Minister on 20 January 2020. From the 15th day after receipt of the notice of default, a penalty will be payable. The Minister has still not decided on the claimants' objection. The penalty is fully paid and amounts to € 1,442. Legal costs 9. Because the court declares the appeal to be well-founded, the court determines that the Minister reimburses the plaintiff for the court fee paid by him. There is no reason to award a court order because it has neither been claimed nor proved that the court costs are eligible for reimbursement. Decision The court: - declares the appeal well-founded; - nullifies the failure to take a decision in due time, which is equivalent to a decision on objection; - instructs the Minister, within four weeks of the date of dispatch of this order, to to take and send a decision on the objection; - provides that the Minister shall forfeit to the claimant a penalty payment of € 100 for each day by which it exceeds the abovementioned time limit, up to a maximum of € 15.000,-; - rejects the request for determination of the penalty payment on account of failure to decide in good time at plaintiff's request; - sets the penalty payment forfeited by the Minister on account of failure to decide on the objection in good time fixed at € 1,442; - instructs the Minister to compensate the plaintiff for the court fee of € 178. This judgment was rendered by P.H.J.G. Römers, judge, in the presence of M.H.A. de Graaf, registrar, on 19 June 2020 and made public by means of anonymous publication on www.rechtspraak.nl. The Registrar is not in a position to sign the judgment. judge Copy sent to parties on: What can you do if you disagree with this statement? The parties and other interested parties can object to this ruling in court. The time limit for lodging an objection is six weeks and starts on the day after this ruling is sent.