VG Karlsruhe - 7 K 2578/22
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| VG Karlsruhe - 7 K 2578/22 | |
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| Court: | VG Karlsruhe (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 15(1) GDPR Article 15(3) GDPR |
| Decided: | 19.10.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 7 K 2578/22 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | openjur.de (in German) |
| Initial Contributor: | co |
A German court held that test questions do not constitute personal data under the GDPR and thus shall not be included in a copy of the data provided to a data subject in the context of an access request under Article 15(3) GDPR.
English Summary
Facts
A data subject took a test to a German University in order to be admitted to a Degree in Medical studies.
The data subject sent an e-mail to the coordination office for the test, submitting that he had taken the test in Frankfurt on 7 May 2022 and requested a copy of his examination file as it contained personal data about him, in accordance with Article 15(3) GDPR and citing CJEU case C-434/16.
On 15 June 2022 the coordination office replied to the e-mail giving an overview of the personal data about him that were being stored and a scan of the information on test processing. In addition to this, the office sent him a copy of the test booklet where the content of the test was blackened but his answers and notes were readable.
The data subject replied to the e-mail complaining about the blackening of the test questions and he asked to receive a copy of the test including the questions too, within a week. As he did not get a reply within one week he sent another e-mail to the coordination office stating that he would file suit with the Administrative Court of Karlsruhe (Verwaltungsgericht Karlsruhe - VG Karlsruhe). The office replied that they believed that such a request might be unfounded or excessive and they could not provide any more information than what they did.
On 03 August 2022, the data subject, hereinafter the plaintiff, filed suit with the VG Karlsruhe asking to obtain a non-redacted copy of the test he took under Article 15(3) GDPR, not to delete certain data about him and requesting access to other information about the testing procedure. As regards the test questions, he submitted that even though questions per se do not constitute personal data, the multiple choice answers he chose to tick do reflect his own choices and thus can constitute personal data.
In its submissions, the test coordination centre, as a defendant, argued that it complied with the access request under Article 15(3) GDPR by providing the plaintiff with a copy of the test booklet in which his personal data were contained and that the test questions do not entail any personal data about him, hence the defendant has no obligation to provide them to him. Further, the defendant expressed doubts regarding the nature of his access request, since the plaintiff is also an entrepreneur and thus might have abused his rights. Also, the defendant stated that it would not delete his personal data and proved to have answered all other questions regarding the test.
Holding
On 19 October 2023, the VG Karlsruhe issued its judgment on the case.
As regards the request by the plaintiff to obtain a non-redacted copy of the test questions, the VG first of all considered that the coordination office of the University is a controller within the meaning of the GDPR. The court considered that the controller sufficiently complied with the plaintiff’s access request by providing him with an overview of the data about him being processed and by sending him a copy of the test booklet on which his answers and notes were written down.
In this, the court sided with the controller in claiming that the plaintiff does not have a right to receive a non-redacted copy of the test questions. As a matter of fact, the latter cannot be said to constitute personal data within the meaning of Article 4(1) GDPR and thus cannot be object of an access request under Article 15(3) GDPR. Making reference to CJEU case C-434/16, the court reiterated that answers given by a student in a test could be considered personal data, however, the CJEU made it clear that test questions cannot be considered personal data. The argument that the test questions are strictly linked to the answers given by the plaintiff was also not accepted by the court which held that the questions do not reveal anything about the level of knowledge of the plaintiff and thus do not constitute personal data.
Also, the court argued that access requests under Article 15 GDPR serve the purpose of making data subjects aware of the processing of their personal data and to verify the legality of processing. Hence, in the court’s view, it is irrelevant that the plaintiff needed access to the test questions for the purpose of interpreting the test result because he does not have a right to access under the GDPR for such purpose.
For all these reasons, the court held that the plaintiff does not have a right to obtain a copy of the non-redacted test questions under Article 15(3) GDPR, as this would also adversely affect the interest in secrecy of the defendant as established in Article 15(4) GDPR and taking into account Recital 63 GDPR. Effectively, the court established that the test questions constitute trade secrets under German Trade Secret Law (Gesetz zum Schutz von Geschäftsgeheimnissen - GeschGehG) and thus the defendant had an interest in not disclosing them.
Comment
The VG Karlsruhe reached a fair judgment in this case, however, it can be argued that in light of CJEU case C-307/22 a different interpretation is possible. As a matter of fact, the CJEU considered that "The first sentence of recital 63 cannot be interpreted as meaning that a request must be rejected if it is intended for an objective other than that of taking knowledge of the processing of the data and verifying its lawfulness." In this sense, it could be asserted that the controller might have to provide the data subejct with information that is necessary to pursue other objectives, such as that of interpreting the test result. Yet, the CJEU's stance is rather broad and leaves room for interpretation.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
1. The questions in the test for medical degree programs do not constitute personal data within the meaning of Art. 4 No. 1 GDPR. Therefore, according to Art. 15 Para. 3 Sentence 1 i. V. Art. 15 Para. 1 GDPR no right to release the test questions.2. The right to have the test questions provided also conflicts with an interest in confidentiality in accordance with Art. 15 Para. 4 GDPR.3. The request under Section 1 Paragraph 2 LIFG for information about the costs paid by the Central Coordination Office for the creation and implementation of the TMS is contradicted by the reason for exclusion in Section 6 Paragraph 2 LIFG. tenor 1. If the parties involved have declared the legal dispute settled in the main matter, the proceedings will be discontinued. Otherwise, the lawsuit will be dismissed.2. The plaintiff bears 5/6 and the defendant 1/6 of the legal costs of the proceedings. The plaintiff bears two thirds of the defendant's out-of-court costs. Otherwise, the parties involved retain their out-of-court costs. Facts of the case The plaintiff also requests that the defendant university hand over a copy of the plaintiff's unredacted booklet of the test for medical courses, information on how high the costs of the Central Coordination Office TMS are, which are paid to the company..., and how these are composed, alternatively the notification of what the defendant's total payments were to ... in the years 2021 and 2022, and finally to determine that the defendant is not entitled to charge a participation fee for participation in the TMS. The test for Medical degree courses (hereinafter: TMS) is a subject-specific study aptitude test that is intended to check the participants' understanding of scientific and medical problems and thus their suitability for the medical degree programs in human, dentistry and veterinary medicine. The TMS is organized and carried out by the TMS Central Coordination Office (hereinafter: Coordination Office), which is located at the defendant's medical faculty, on behalf of the universities that take the TMS results into account in the admission procedures for their medical degree programs. The coordination office commissions ... with the test development and evaluation. The plaintiff is the owner and managing director of ..., which, among other things, arranges medical study places abroad and supports the preparation for entrance tests. The plaintiff took part in the TMS in Frankfurt on May 7th, 2022. In an email dated May 17th, 2022 to the coordination office, the plaintiff announced that he had taken part in the TMS in Frankfurt on May 7th, 2022 and sent the confirmation of participation and his identification number in the attachment. He requested the coordination office to send him a copy of his audit file in accordance with Article 15 (3) GDPR. There was a lot of personal data on his test sheet that he wanted to look at again. As a precautionary measure, he based his concern on Section 29 LVwVfG and referred to the judgment of the European Court of Justice of December 20, 2017 - C-434/16 -. In an email dated June 15, 2022, the coordination office gave the plaintiff an overview of the procedures for processing the TMS personal data stored about him as well as a scan of the general information on test processing. In addition, the plaintiff was sent a copy of the test booklet from the morning part and the plaintiff's answer sheet for the morning part, in which the plaintiff's personal notes were visible; In addition, the test booklet was blacked out. A copy of the test booklet from the afternoon part was not sent because the plaintiff did not take part in the TMS in the afternoon. In an email dated June 15, 2022, the plaintiff complained that the task booklet with blacked out test questions had been sent to him. He wanted to take another look at the test questions and, among other things, his markings there. He didn't take part in the afternoon part because he assumed that his score from the first part was already completely sufficient for a good result. Since the afternoon part is still included in his assessment, his right to insight should also extend to this. Perhaps he would come across questions that were inadmissible or ambiguous and therefore had to be excluded. A deadline for sending will be set by June 22nd, 2022. In an email dated June 24th, 2022, the plaintiff further stated that he interpreted the lack of response as a refusal of his request for access and that he would take the matter before the Karlsruhe Administrative Court next week ; He will give the statement of claim and the court file number to the press. In an email dated June 27, 2022, the coordination office announced that the concerns about the fairness of the request for information had not been resolved, which is why no further information could be provided. The announcement to initiate legal proceedings and to contact the press is noted. In an email also dated June 27, 2022 to the coordination office, the plaintiff announced that he would have the amount of the invoiced administration fee verified in the legal proceedings become. Therefore, please send the notification of the participation fee by email. He also requested information on the following questions in accordance with Section 7 of the State Freedom of Information Act (LIFG):1. Do examinees receive access to their examination file upon request?2. How many such file inspection questions were there in 2022, 2021 and 2022?3. How are such file access questions dealt with? Have there already been legal proceedings regarding this?4. Have there been any other legal disputes regarding the TMS? Which type? How did these turn out?5. What is the legal basis for charging participation fees for the TMS?6. How is the participation fee determined? Which committee, which is specifically made up of whom, decides on this? How will the decision on the fee level be announced?7. How is sales tax paid for the participation fees collected? If not: why not?8. How high was the turnover from participation fees collected in 2020, 2021 and 2022?9. What were the costs for implementation in 2020, 2021 and 2022?10. Have there been any profits made from implementing TMS in the past? If yes: In which years and to what extent?11. How much are the costs paid to ... in Bonn? How are these made up?12. Apart from the participation fees, do financial, material or human resources from Heidelberg University flow into the TMS coordination office?13. Do the other faculties involved in the TMS contribute to the costs incurred? What does the participation look like? In an email dated July 8, 2022, the defendant announced that, according to Section 2 (3) LIFG, this law does not apply to institutions with the task of independent scientific research and universities in accordance with Section 1 of the State Higher Education Act (LHG); in this respect the scope of application is not open. The legal basis for charging a test fee is the attached statutes on the charging of fees for the test for medical degree programs (TMS) in Baden-Württemberg from 2007 in the version dated December 2nd, 2020. We contacted you by email dated July 11th, 2022 The plaintiff addressed the State Commissioner for Freedom of Information in Baden-Württemberg with a request for clarification as to whether the defendant university was allowed to refuse to answer the questions that did not relate to research, art, teaching, performance assessments and examinations, but rather the selection process. In a letter dated On August 2, 2022, the plaintiff applied to the coordination office for a refund of the test fee of EUR 100, which he paid on January 4, 2022, for participation in the TMS. In a letter dated August 10, 2022, the coordination office granted the request as a gesture of goodwill and paid the test fee back to the plaintiff. The plaintiff filed a lawsuit on August 3, 2022 and requested1. to give him a copy of the unredacted test booklet TMS-ID: .../morning/form/2/2022 relating to him;2. not to delete his personal data by the deadline of September 30, 2022;3. to provide him with information on the following questions:1. Do examinees receive access to their examination file upon request?2. How many such file inspection questions were there in 2022, 2021 and 2022?3. How are such file access questions dealt with? Have there already been legal proceedings regarding this?4. Have there been any other legal disputes regarding the TMS? Which type? How did these turn out?5. What is the legal basis for charging participation fees for the TMS?6. How is the participation fee determined? Which committee, which is specifically made up of whom, decides on this? How will the decision on the fee level be announced?7. How is sales tax paid for the participation fees collected? If not: why not?8. How high was the turnover from participation fees collected in 2020, 2021 and 2022?9. What were the costs for implementation in 2020, 2021 and 2022?10. Have profits been made from implementing TMS in the past? If yes: In which years and to what extent?11. How much are the costs paid to ... in Bonn? How are these made up?12. Apart from the participation fees, do financial, material or human resources from Heidelberg University flow into the TMS coordination office?13. Do the other faculties involved in the TMS contribute to the costs incurred? What does participation look like?4. to refund him the participation fee of EUR 100 that he had paid, or alternatively to refund him EUR 17 of the participation fee. The justification was that he had a legal right to receive an unredacted copy of the test booklet. He wants to repeat the test. This is also possible. If the personal data were deleted, this could contradict his request. The defendant did not respond to his request for information. With regard to the test fee, the fee regulations have the legal basis in Section 16 Paragraph 3 of the State University Fees Act (LHGebG) of Baden-Württemberg, according to which the universities charge application fees of up to 100 per criterion for conducting study aptitude tests and selection interviews and other oral procedures as part of the entrance examination and selection process EUR, but not more than EUR 250 in total. This does not apply because, according to the appendix to § 4 of the defendant's selection statutes for admission to medicine and dentistry, it is not the defendant who carries out the test, but the .... The defendant has opposed the lawsuit. Regarding the lawsuit 1: There the plaintiff, as managing director, ... is active in business, a case of abuse of law is conceivable in connection with the conduct of business. However, the claim under Article 15 (3) GDPR was met anyway by providing a copy of the plaintiff's test booklet, from which the personal data can be seen. Access to the processed personal data was made possible. The plaintiff's answers and his handwritten notes, each of which represented personal data, were transmitted by copy. There are no comments from an examiner, so transmission is out of the question. The test tasks are not the subject of personal data. These have therefore been blacked out. Sending a copy of the plaintiff's unredacted test booklet in accordance with Section 29 (1) LVwVfG is also out of the question. Only those who are involved in the administrative procedure have the right to inspect files. At most, these are the universities. If the plaintiff does not agree with a university's selection decision, he can take legal action directly against the university, which is solely responsible for the selection process. However, there is no independent right to abstract control of the TMS (VG Cologne, decision of March 21, 2014 - 6 L 1691/13 -). A right to inspect files in accordance with Section 29 Para. 1 LVwVfG cannot be asserted in isolation from an appeal against the decision on admission to the course. A current decision by the Higher Administrative Court of Münster dated August 22, 2022 (13 A 442/20) confirms that applicants are free to have the selection decision made by the university alone examined by a court. This must be justified by her and, upon request, the essential aspects of her decision documented by her must be made accessible by means of inspection of the files in accordance with 29 LVwVfG. The student applicant's right to inspect files then extends to the files maintained or accessed by the authority. The university is therefore not obliged to always obtain all test documents ex officio, especially if it has ensured the general suitability of the test procedure and its proper implementation. In addition, there is a significant public interest in keeping the test tasks secret due to the high development costs. The test tasks would be developed by an expert committee made up of specialist representatives (university and high school teachers) and psychologists (experts in aptitude diagnostics) in a multi-stage development and revision process. The high quality assurance requirements made the creation of the TMS tasks complex and correspondingly cost-intensive. Using a completely new test version for every test date is not affordable. Test tasks would therefore have to be used multiple times and kept strictly secret before and after use. From the point of view of equal opportunities for participating student applicants, it must therefore be guaranteed that in future assignments the tasks will not be known to any participant in advance. Incidentally, ... is not the sole owner of the rights to the tasks in the TMS collection. A large part of the task pool for the TMS holds the ..., rights. With regard to further subsequent use, there are contractual confidentiality obligations between those involved. As a claim for damages for a test version that can no longer be used due to it becoming known, costs for a new creation of EUR 250,000 to EUR 300,000 can be assumed. Because of the legitimate interests of third parties, the test tasks would have to be kept secret within the meaning of Section 29 Paragraph 2 LVwVfG. The same considerations would also apply with regard to the plaintiff's asserted claim under Article 15 (3) GDPR. According to Recital 63 Sentence 5 of the General Data Protection Regulation, rights and freedoms are primarily understood to mean business secrets and intellectual property rights (cf. OVG Münster, judgment of June 8, 2021 -16 A 1582/20-). The rights ... to the test tasks would conflict with the right to release them. The OVG Münster also determined in the decision of August 22, 2022 that the test tasks of the TM-WISO - conceptually comparable to the TMS - required secrecy. Regarding the claim 2: Of course, no personal data of the plaintiff would be used against him as part of the pending court proceedings will deleted; this will be confirmed. The request not to be deleted was made for the first time with the claim 2. Regarding the claim 3: The questions would be answered as follows:Question 1: Upon request, examinees could have access to the personal data stored about them by the TMS coordination office. Disclosure of the examination tasks from the test booklets is not intended. Question 2: According to Section 1 Para. 2 LIFG, those entitled to apply have a right to access to official information from the bodies required to provide information in accordance with the law. After each round, examinees would have various questions about their test results. Statistics on individual inquiries are not kept. Experience has shown that specific requests to view tests are very rare. Question 3: The TMS coordination office answers all requests to the best of its knowledge and belief and within the framework of the legal requirements. Questions regarding the TMS results would be referred to the cooperation partner ITB. In the course of this there was only one legal procedure. This was ended with a comparison.Question 4: A procedure concerned the use of the TMS results in the context of student selection at a private university. This procedure was ended with a settlement. Two further proceedings dealt with subsequent admission to the TMS after missing the registration deadline. This request was also rejected.Question 5: The collection of participation fees is based on Sections 2 Paragraph 2 and 16 Paragraph 3 of the State Higher Education Act. Based on this, the Senate of the University of Heidelberg passed the statutes on the charging of fees for the test for medical courses in Baden-Württemberg at the University of Heidelberg dated December 2nd, 2020. Question 6: The amount of the participation fee is set out in a guideline based on full cost coverage. The Senate of Heidelberg University decides on the statutes in accordance with Section 19 Paragraph 1 No. 10 LHG. The rector then gives his consent. According to Section 19 Paragraph 2 LHG, the composition of the Senate is regulated in the basic regulations. The statutes would be published in the Rector's newsletter, which would be available both in print and online. The personal details would be published on the central website. In addition, in this case, there is a publication on the TMS website. Question 7: No sales tax is paid. The receipt of participation fees does not constitute a commercial operation. The fees are therefore not taxable. Question 8: The turnover from participation fees collected depends on the number of participants who are bindingly registered for the TMS. Registration becomes binding upon transfer of the test fee. ... paid registrations, ... paid registrations and ... paid registrations (May).Question 9: The costs for the relevant test rounds were as follows:2020: ... EUR; 2021: ... EUR; 2022: The TMS accounting year has not yet been completed. Question 10: As part of Heidelberg University, the TMS coordination office is a public institution that calculates in a process-oriented manner and does not make any profits from implementing the TMS. Regarding question 11: Through this question The contractual partner's interests worthy of protection would also be affected. Therefore, this information should not be passed on without his consent. Question 12: As part of the University of Heidelberg, the TMS coordination office uses the administrative structures of the university and the university hospital. Question 13: Faculties or institutions contribute to the costs with an expense allowance the implementation of the TMS insofar as the shortfalls would be compensated by the association. Regarding the claim 4: Since the test fee of EUR 100 paid by the plaintiff was exceptionally refunded as a gesture of goodwill; the need for legal protection no longer applies. In a letter dated October 11, 2022, the plaintiff declared the legal dispute to be settled with regard to claim 2 and with regard to claim 3 with regard to questions nos. 1 to 10, 12 and 13. The defendant should be ordered to pay the costs of the proceedings. He submitted his request for information on June 27, 2022. The defendant should have responded within one month in accordance with Section 7 LIFG BW. The one-month deadline for providing information had already expired on July 8, 2022 and he was entitled to sue from that point on. The action was admissible as an action for failure to act. The request for information was submitted on June 27, 2022. The information was given on October 8th, 2022. In any case, at the time of settlement, the conditions for the action for failure to act were met. He also stated in relation to claim 1: He had a legitimate interest in being able to provide as much in-depth information as possible about the nature of the test when a customer conversation was about TMS, among other things. He made handwritten notes and he could not be blamed for making these on the test sheet. Because no other paper apart from the test sheets may be used. He only took part in the morning. He realized that he would probably not be able to cope with the high demands of the test. It is all the more important that he gains clarity about the events from the test procedures. He has a claim under the General Data Protection Regulation. Of course, it could be argued that the examination tasks as such and in themselves did not and could not contain any data relating to the test candidate. According to the Advocate General's opinion of July 20, 2017 in the case Nowak/Data Protection Commissioner ECJ C-434-16, this is the case because an examination paper is not limited to the results of the examination, but rather the assessment is based on those documented in the examination work I receive services which, together with the examination task, represent “a bundle of personal data”. At the very least, his answering behavior is personal data." If several answer options are available and he chooses one of these answer options, this is information linked to his person and nothing else applies to the decision not to tick answer options. This follows, even if one takes exam questions As such, he does not consider the answers to be personal data and that the answers should be made known to him. The requirements themselves are inextricably linked to the examination tasks and cannot be mentally separated from them. This is not the case with regard to Section 29 LVwVfG about a judicial review of the examination decision or about an abstract control of the TMS. He wants insight, nothing more and nothing less. Interest in secrecy is nonsense. They are completely normal questions in the answer-choice procedure. There are hundreds of thousands, if not millions, of these. This... every year I create exam tasks in answer-choice procedures for several exam campaigns for medicine, pharmacy, and psychotherapy. These are published regularly and are known to the examination candidate. Conflicting rights of third parties would mean that every authority could protect its activities from transparency if it only partially outsourced its tasks under private law. The aptitude procedure is an official task. Third-party rights do not change the legal obligations of the authority and if the authority feels the need to protect itself from the assertion of third-party rights against it, it must take this into account when drafting the contract. But this cannot have an external effect. With regard to claim 4: This is declared settled. In addition, a declaration is requested that a participation fee of EUR 100 or EUR 83 may not be charged for participation in the TMS. He intends to register for a repeat in the future. In a letter dated October 26, 2022, the defendant replied: The plaintiff submitted the LIFG request for information by email on June 27, 2022. On July 8, 2022, he received a response from the coordination office without any information about legal remedies. Due to a lack of legal information, he could have challenged the rejection within a year by filing an objection. Before filing an action for failure to act, the necessary objection procedure had to be carried out first. The 3-month period will only come into effect after the objection has been lodged. Contrary to the plaintiff's statements, contractual partners' interests worthy of protection would also be taken into account in the State Freedom of Information Act. According to Section 6 LIFG, access to company or business secrets may only be granted if and as long as the protected person has consented. For this reason, the defendant is currently conducting a participation procedure in accordance with Section 8 LIFG and has given ... the opportunity to comment and to give its consent to access to information within one month. The plaintiff was involved in accordance with Section 8 LIFG. Regarding the test fee: There is no legitimate interest in converting the payment application to a determination application. An interest in determining the TMS fee statutes is not sufficient. The stated intention to repeat the test is not sufficient. The plaintiff did not register for the current autumn session in November 2022. The legal basis for charging a test fee is the statute on the charging of fees for the test for medical courses in Baden-Württemberg from 2007 in the version dated December 2nd, 2020. The Senate of Heidelberg University issued the TMS fee regulations based on Sections 2 Paragraph 2 and 16 Paragraph 3 LHGebG. § 16 Para. 3 LHGebG expressly allows universities to charge application fees of up to EUR 100 for conducting study aptitude tests. In a letter dated February 14, 2023, the defendant also decided on the legal dispute with regard to claim 2 and with regard to claim 3 to questions No. 1 to 10, 12 and 13 and with regard to the lawsuit 4 declared settled. With the decision dated November 17th, 2022, the defendant has already rejected the plaintiff's request for information according to the LIFG "How high are the costs that... which ... are paid? How are these costs made up?" rejected. The justification was that ITB had refused consent in accordance with Section 6 LIFG. There is also a legitimate interest in secrecy. In its rejection, the ITB itself refers to the fact that cost calculations constitute a relevant business secret. This is also confirmed by the university. She can also recognize adverse effects. The amount and composition of costs made it possible to draw conclusions about calculations, market strategies and thus the economic situation of the company. With this knowledge, the applicant could become aware of information that could weaken the company's competitive position, especially since this information is not available to other competitors. The plaintiff filed an objection to this rejection decision on December 14, 2022 on the grounds that it would doubts whether cost calculations constituted a relevant trade secret. Furthermore, no cost calculations were asked. The interest would not be in gaining insight into the individual cost items and/or expenses or in finding out the earnings situation..., but rather in the question of how much money the university paid to... Ultimately, this is just one sales item in a variety of positions. Alternatively, please inform us what the university's total payments were to ... in the years 2021 and 2022. With an objection notice of May 22, 2023, the defendant rejected the plaintiff's objection with costs and free of charge. The justification was that, contrary to the plaintiff's statements, the requested information was not just one position among many. The exact composition of the costs was asked. This information enables conclusions to be drawn about calculations, market strategies and thus the economic situation of the company, especially in conjunction with publicly available information, and is therefore capable of weakening the company's competitive position. In addition, the plaintiff did not provide any justification for the application in accordance with Section 7 Paragraph 1 Sentence 3 LIFG. The alternative request to receive the university's total payments to ... in 2021 and 2022 should also be rejected according to Section 6 LIFG. According to case law, a trade or business secret is understood to mean “all facts, circumstances and processes relating to a company that are not obvious but are only accessible to a limited group of people and that the legal entities have a legitimate interest in non-disclosure”. These conditions are met in the present case. There is a company connection. Furthermore, the requested information is not obvious. There is also a legitimate interest in secrecy. The amount of total payments from 2020 and 2021 is based on specific circumstances of specific business relationships. By passing on the requested amount of total payments, information could be passed on which - in conjunction with publicly available information from the university and ... - would allow conclusions to be drawn about operational management and cost calculations .... Competitors would therefore have access to this sensitive information and could use it for themselves, while conversely it would not be available. On June 26, 2023, the plaintiff submitted the defendant's decision of November 17, 2022 and their objection decision of May 22, 2023 Lawsuit included. He therefore finally requests: 1. to give him a copy of the unredacted test booklet TMS-ID: ...Morning/Form/2/2022 relating to him;2. to annul the defendant's decision of November 17th, 2022 and its objection decision of May 22nd, 2022 and - accordingly - oblige the defendant to provide information about the costs incurred by the ... are paid and how they are made up; alternatively, to provide information as to what the defendant's total payments were to ... in the years 2021 and 2020.3. determine that the defendant is not entitled to charge a participation fee of EUR 100 or EUR 83 for participation in the TMS. The reasoning was additionally stated: The defendant is taking on a public law task, namely determining suitability for the study of medicine. To do this, she commissions a private service provider. When it comes to providing information, private law protection interests are put forward in order to make the public law protected information interest come to nothing. She is also a monopolist. The protection of competitive interests is likely to be less important the more dominant a company is in the market. The defendant finally requests that the lawsuit be dismissed. The reasoning was additionally stated: The amount and composition of costs (including total payments from 2020 and 2021) made this possible Conclusions on particularly sensitive areas of business management such as calculations, market strategies and thus the economic situation of a company. With this knowledge, the plaintiff would become aware of information that would be capable of specifically weakening the company's competitive position. The company concerned, on the other hand, would have no access to corresponding information from competitors. This would enable potential competitors to circumvent the protection of trade secrets if the authority rather than the company provided the information. For example, it would be possible to make offers based on this knowledge to universities and/or other potential contractors that would undercut these costs or expand the offer accordingly. I have exactly this knowledge... but not the other way around. There is also no reason to lessen the interest in protection. It is not a monopolist. In addition to the TMS, developed by the ITB, there are currently the Hamburg Natural Sciences Test (HAM-Nat-Medizinertest) and the MedAT-Medizinertest (Austria), which meet the above requirements and are therefore in competition as potential providers. The implementation and further development of the test and the associated further collaboration with ... are subject to constant review. It is not enough to see potential competitors only in the area of medical testing. The field of activity ... includes more than just the provision and evaluation .... The activities included, among other things: Aptitude and management diagnostics as well as personnel development for companies and universities. In the higher education sector alone, we are developing ... selection procedures for universities, educational institutions and scholarships and organizations; She also develops and evaluates subject-specific and general study aptitude tests for various study institutions, e.g. B. natural science and technical courses. There is also the market for preparation for the TMS or study aptitude test. What should be highlighted here is the competition in the field of study aptitude tests in general. Precisely because this is a very established provider, it could be relevant for competitors to find out something about the information at issue. No interest in protection under private law is merely put forward in order to make the interest in information protected under public law come to nothing. Even if the applicant has a particular interest in receiving this information, the person concerned, i.e. H. the owner of the property right or the company secret, decide on granting access to information. Section 6 LIFG is about the legally regulated protection of private interests. It is the task of the body required to provide information to check whether there is a legitimate interest in maintaining secrecy. A balance between the legitimate interest of secrecy and the public interest in information is not provided for in Section 6 LIFG. Since ... did not agree to the provision of information, the request for access to information should be rejected. For further details, reference is made to the content of the exchanged pleadings and the present court file. reasons The chamber was able to decide without an oral hearing because the parties involved chose not to hold an oral hearing (Section 101 Para. 2 VwGO). To the extent that the parties agreed that the main issue was settled, the procedure was in accordance with Section 101 (2) VwGO. 92 Para. 2 VwGO. To the extent that the plaintiff has also requested that the defendant be obliged to hand over to him a copy of the unredacted test booklet TMS-ID: TMS .../morning/form, 2/2022 relating to him, the Lawsuit unsuccessful (1.). To the extent that the plaintiff also requests that the defendant university be obliged to provide information on how high the costs are that are paid to ... and how these are made up, alternatively, what are the total payments made by the defendant university to ... in the years 2021 and 2020, the lawsuit is also unsuccessful (2.). Finally, the plaintiff is also not entitled to a declaration that the defendant is not entitled to charge a participation fee for participation in the TMS (3.), so the lawsuit had to be dismissed in this respect.1.a) The lawsuit for the release of his unredacted test booklets, is admissible as an action for obligation and is also admissible in other respects. Admissible type of action for the legal assertion of a claim under Article 15 paragraph 1 and paragraph 3 sentence 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and the repeal of Directive 95/46/EC (General Data Protection Regulation, ABlL 119 page 1) - GDPR - is the obligation action (cf. BVerwG, judgment of November 30, 2022 - 6 C 10.21 -, juris). The person responsible (Art. 4 No. 7 GDPR) must decide on this claim by means of an administrative act on the basis of a review program, which relates in particular to possible exclusions or restrictions. Such a decision was also made in the present case. b) However, the lawsuit is unfounded. The plaintiff is not entitled to be provided with a copy of an unredacted test booklet relating to his TMS participation. The refusal of the coordination office to issue a corresponding copy is therefore lawful and does not violate the plaintiff's rights (Section 113 Paragraph 5 Sentence 1 VwGO).aa) The basis for the plaintiff's request is Article 15 Paragraph 3 Sentence 1 GDPR . According to Art. 15 Para. 3 Sentence 1 GDPR, the person responsible provides the data subject with a copy of the personal data that is the subject of processing free of charge in accordance with Art. 12 Para. 5 Sentence 1 GDPR. The coordination office of the defendant university should Responsible persons within the meaning of Section 15 Paragraph 1 i. V. m. Paragraph 3 Sentence 1 GDPR and thus be the body responsible for the requested decision. According to Art. 4 No. 7 GDPR, a controller is the natural or legal person, authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data. The implementation of the TMS was at the relevant time of the plaintiff's participation in the test in May 2022 in § 4 and in the appendix to § 4 of the statutes of the defendant university for admissions to the study programs Medicine (Faculty of Heidelberg), Medicine (Faculty of Mannheim) as well as dentistry, each with a state examination in accordance with the university's own selection process (AdH) and the additional aptitude quota (ZEQ) of September 29, 2021 (hereinafter: admission statutes). In the current version of December 8, 2022, the implementation of the TMS is regulated in § 5 of the Admission statutes and the defendant's statutes for conducting the test for medical degree programs (TMS) dated December 8, 2022. On the website for the TMS, the coordination office of Heidelberg University is named as the person responsible for data collection and processing with regard to the processing of personal data (https://www.tms-info.org). The coordination office of the defendant University of Heidelberg is therefore likely to be the body that - at least together with the body responsible for test development and test evaluation ... - decides on the purposes and means of processing personal data. However, the plaintiff has no claim against the coordination office Publication of his unredacted test booklet regarding his test participation on May 7th, 2022 in Frankfurt. The TMS coordination office sent the plaintiff an overview of the personal data stored about him to process the TMS as well as a scan of the general instructions for test processing. He was also sent a copy of his test booklet from the morning part as well as his answer sheet for the morning part, in which the plaintiff's personal notes were visible. Furthermore - regarding the test questions - the test booklet sent was blacked out. A copy of the test booklet from the afternoon was not sent because the plaintiff did not take part in the TMS in the afternoon (see the defendant's email dated June 15, 2022). The plaintiff in the present proceedings is concerned with the morning part also receive a copy of the test questions. Art. 15 Paragraph 3 Sentence 1 i. V. with Art. 15 Para. However, 1 GDPR does not justify such a claim. The test questions do not involve the plaintiff's personal data. According to the definition in Article 4 No. 1 GDPR, "personal data" is all information that relates to an identified or identifiable natural person. A natural person is considered identifiable if he can be identified directly or indirectly, in particular by means of an identifier such as a name, an identification number, location data, an online identifier or one or more special characteristics that express the psychological, physiological , genetic, psychological, economic, cultural or social identity of that natural person. The European Court of Justice stated in its judgment in case C-434/16 (Nowak) of July 20, 2017 that a candidate's answers in a written examination and the examiner's comments on these answers may constitute personal data of the examinee and thus the obligation to provide information subject to. According to the ECJ, examination answers, including the examiner's corrections, meet these requirements, among other things, insofar as, on the one hand, they reflect the examinee's level of knowledge and competence in a specific area as well as, if applicable, his train of thought, judgment and critical thinking, and, on the other hand, the use of this information , which is expressed in particular in the success or failure of the examinee in the examination in question, can affect his or her rights and interests, in particular determine or influence his or her chances of taking up the desired profession or obtaining the desired position. In the board's opinion, this applies to the plaintiff's answer sheet for the morning part and to the plaintiff's personal notes. These were also made available to the plaintiff (see email from the defendant dated June 15, 2022). On the other hand, according to the European Court of Justice, the examination questions, in this case the test questions, do not as such represent the examinee's personal data, so that the examinee's right to information under the GDPR does not extend to this (ECJ, judgment of December 20, 2017, - C-434/ 16 –, juris, para. 58). In the Chamber's opinion, this also applies to the TMS test questions. The test questions have no relation to the examinee as the affected person. They do not in themselves reflect any information about the examinee's level of knowledge and/or competence in a particular area or about his or her thought process, judgment and critical thinking. Nothing else follows from the fact that - according to the plaintiff - the answers are inseparably linked to the examination tasks and cannot be mentally separated from them. This does not mean that the examination tasks become “personal data”. The services provided by the plaintiff in the TMS are determined and documented through his answers. The information he provides is his most personal and individual service and therefore also personal data. For all task groups in the TMS, the answers may only be marked on the answer sheet and not in the test booklet. Markings in the test booklet will not be taken into account. On the answer sheet there are several boxes printed next to each question number that are assigned to the answer letters. The test participant must mark the box that, in his opinion, corresponds to the correct answer (see information brochure from the TMS coordination office; https://www.tms-info.org, "Important things on the test day"). The answer sheet alone provides information about the test participant's level of knowledge. It reflects which answer the participant gave to which question. There is therefore no personal reference to the test questions that are not included in the answer sheet. The answer sheet for the morning part was sent to the plaintiff as shown in the email from the TMS coordination office dated June 15, 2022. Since the plaintiff no longer took part in the test in the afternoon, there is no answer sheet for the afternoon part. As explained above, the questions from the afternoon part are not personal data that must be released in copy, regardless of whether their release was even requested in the present proceedings. Since the right to information according to Art. 15 GDPR serves to be aware of the processing of personal data and to be able to check their legality (see recital 63), it is not crucial for the existence of a right to information that the disclosure of the test questions is necessary in order to be able to check the test result. For this purpose, an examinee/participant does not have a right to information under the General Data Protection Regulation. The decision of the Higher Administrative Court of North Rhine-Westphalia (decision of April 25, 2017 - 6 B 480/17 -, juris), which is further cited by the plaintiff, concerned admission to the Training for the police service and the selection process carried out in this context. The obligation to make the tasks, answers and evaluation of a test procedure that was carried out as part of a selection process accessible has its basis in Article 33 Paragraph 2 of the Basic Law in conjunction with. V. m. Article 19 Para. 4 GG. According to this, the employer is obliged to put down the essential selection considerations on which his decision is based in writing and to make them accessible to the unsuccessful applicant by inspecting the files in order to enable him and, if necessary, the court to carry out appropriate control. The application of the General Data Protection Regulation and thus the presence or absence of “personal data” was not the subject of this decision. The TMS is not comparable to a selection decision under civil service law that is measured by Art. 33 Para. 2 GG (see on TM-WISO: OVG North Rhine-Westphalia, judgment of August 25, 2022 - 13 A 442/20 -, juris).In addition is entitled to the provision of a copy of the plaintiff's unredacted test booklet in accordance with Article 15 Paragraph 3 Sentence 1 i. V. m. Art. 15 Para. 1 GDPR contradicts an interest in confidentiality according to Art. 15 Para. 4 GDPR. According to that provision, the right to obtain a copy of the personal data subject to processing must not prejudice the rights and freedoms of other persons. As can be seen from Recital No. 63 of the General Data Protection Regulation already cited, the group of other persons within the meaning of this provision also includes the person responsible for data processing. The rights and freedoms of other people include trade secrets or intellectual property rights and in particular the copyright in software (see Recital No. 63 to the GDPR). The TMS is operated on behalf of the universities that use the TMS results in the admissions process medical degree programs, organized and carried out by the defendant's central coordination center TMS, which is located at the defendant's medical faculty. The coordination office commissions ... the test development and evaluation. Recital 63 of the General Data Protection Regulation, as already stated, makes it clear that the right of access must not affect the rights and freedoms of other persons, such as trade secrets or intellectual property rights and in particular the copyright in software. “Other people” are all people other than those affected, i.e. H. also the person responsible and the processor (see BeckOK Data ProtectionR/Schmidt-Wudy, 45th ed., August 1st, 2023, GDPR Art. 15, Rn. 96). From a legal perspective, the test questions constitute trade secrets within the meaning of Section 2 No . 1 of the Act on the Protection of Trade Secrets (GeschGehG). This applies in particular with regard to ..., who - according to the defendant - are also the owner of the rights to the tasks in the TMS collection. According to Section 2 Paragraph 1 No. 1 GeschGehG, a trade secret is information that is neither generally known nor readily accessible, either as a whole or in the exact arrangement and composition of its components, to the people in the circles who usually deal with this type of information and is therefore of economic value (a) and which, under the circumstances, is subject to appropriate secrecy measures by its rightful owner (b) and which has a legitimate interest in secrecy (c).From the statement obtained from the defendant... for inspection of the test documents by participants in study aptitude tests from August 31, 2022, it can be seen that the creation of the test documents is based on a scientifically sound and complex process involving a large number of people, which also necessarily involves considerable economic effort. This states, among other things: "All test tasks are developed by experts in aptitude diagnostics (academic degree in psychology, experience in the development of psychometric tests) in a multi-stage development and revision process. For difficult subject-related tasks (e.g. for medical, scientific or... technical issues), external expert assessors are also called in in the case of the test for medical courses in medicine or the natural sciences, often chairs at universities. All newly developed task drafts are first checked by several experts for correctness of content, factual clarity and linguistic precision checked and then revised. The revised tasks are then tested under serious conditions. Only those tasks that meet the psychometric quality criteria described above are included in the test as evaluated tasks. This approach ensures that only those tasks that (a) reliably capture the skill construct targeted by the entire group of tasks and (b) do this with a clear task and an equally clearly correct solution among the solution options offered are included in the test. The described functionality of the study aptitude tests explains why there is no need to inspect the material content of the tests. Empirical proof of the suitability of each task in terms of the use of the test and the guarantee of the internationally customary or required quality criteria is sufficient. The creation of the tasks under the above mentioned Conditions and requirements are extremely complex and correspondingly cost-intensive. It is not affordable to use a completely new test version with previously tested tasks for every test date. This means that the test tasks corresponding to the quality criteria must be used multiple times, as is very common in other international test projects. This in turn requires the strict secrecy of all tasks before and after use in the test. The reusability of tasks requires rigorous test protection. It must be guaranteed that in future assignments, not a single task will be known to any participant in advance. All tasks are only accessible to an extremely narrow circle of people who are sworn to secrecy. Accordingly, the strictest measures are taken to ensure the secrecy of the tasks before, during and after the test is carried out. The essential public interest in the secrecy of the test tasks due to the high development costs and the rigorous test protection required as a result prohibits access to the specific contents."In view of this, the test questions constitute trade secrets in legal terms within the meaning of Section 2 Paragraph 1 No. 1 GeschGehG. In addition, the test questions of the TMS also require secrecy by their nature. The interest in secrecy therefore also follows from the fact that the test measures cognitive abilities. For its meaningfulness, it is therefore of crucial importance that the test questions have corresponding answers If possible, they should not be trainable because this would result in a distortion of the test results and ultimately the unusability of the test. The disclosure of the test questions and answers as well as the opportunity requested by the plaintiff to make copies of them would contribute to trainability. This purpose is also the case Examination requires the confidentiality of the test tasks (cf. on this: OVG North Rhine-Westphalia, judgment of August 25, 2022 - 13 A 442/20 -, juris and decision of October 9, 1987 - 11 B 1951/87 -, NVwZ-RR 1989, 189). After all, issuing a copy is possible an unredacted test booklet, which results in the disclosure of the test questions, is necessarily accompanied by a violation of the interest in secrecy with regard to the examination tasks. Since the defendant undisputedly provided a blacked-out copy of the plaintiff's test booklet from the morning part and the plaintiff's answer sheet for the morning part, in which the personal notes were visible (cf. the defendant's email dated June 15, 2022), the The plaintiff's right to information in accordance with Article 15 Para. 1 i. In accordance with Paragraph 3 Sentence 1 of the GDPR, this is also not entirely thwarted.bb) The plaintiff also has no right to have his unredacted test booklet released by way of inspection of the files in accordance with Section 29 LVwVfG. According to Section 29 Paragraph 1 Sentence 1 LVwVfG, the authorities must allow those involved to inspect the files relating to the proceedings to the extent that their knowledge is necessary to assert or defend their legal interests. It is already questionable whether Section 29 LVwVfG applies to the applicant and the coordination office applies at all. Because in this relationship there should be no administrative procedure within the meaning of Section 9 LVwVfG in which Section 29 LVwVfG applies. The coordination office should not be an independently acting body in the admissions process for medical courses with decision-making powers under public law. According to Section 4 of the defendant's admission statutes in the relevant version, the TMS is carried out jointly by the medical faculties in Baden-Württemberg as well as other faculties and institutions in other federal states. As already stated, the coordination office is responsible for organizing and coordinating the test procedure. This commissions ... with the test development and evaluation (see appendix to § 4 of the statutes in the relevant version, 2, I.2; now: § 1 paragraph 2 of the TMS implementing statutes of December 8, 2022.). In view of this, the coordination office could simply be the “administrative assistant” of the universities that take the TMS results into account in the admissions process for their medical degree programs and on whose behalf the TMS is carried out. Even if the implementation and evaluation of the TMS is likely to be an indirectly job-related performance survey with regard to Article 12 of the Basic Law, the respective test result is not likely to be an independently verifiable administrative act, but rather an internal process, i.e. H. the test result in itself does not trigger any independent legal effects. Rather, the test result only acquires legal effects in connection with an admission process, namely with an application for admission to a medical course at one of the universities that take the TMS result into account in their admission process. Without the initiation of an admission procedure, the test result - unlike other examinations - should not convey any kind of legal status to the outside world that the examinee would be able to exploit. Only non-admission to the course taking the test result into account leads to the legal impairment of the person who took part in the TMS. Furthermore, Section 29 LVwVfG could no longer be applicable in the present proceedings because the right to inspect files according to Section 29 LVwVfG with the conclusion of the administrative procedure ends (Kallerhoff/Mayen, Stelkens/Bonk/Sachs, VwVfG, 10th edition 2023, § 29, Rn. 38). The test result will be made available for retrieval and printing under the personal account created by each test taker and will be deleted on October 1st for the spring TMS and April 1st for the fall TMS (https://www.tms-info.org, "After TMS", test result). The plaintiff's TMS procedure is therefore likely to have ended in this case, especially since the plaintiff has not yet taken action against the test result and does not intend to do so, as he expressly stated in his letter dated October 11, 2022. Since the plaintiff also stated in this letter that he was not interested in an abstract control of the TMS, it is also not clear why the requested access to files is necessary to assert or defend the applicant's legal interests (§ 29 Paragraph 1 Sentence 1 LVwVfG). Ultimately, it remains unclear whether Section 29 VwVfG can even be considered as a basis for the claim in this case. Even if this were the case, the applicant's claim to have a copy of his unredacted test booklet failed, i.e. H. including the test questions, in any case because the test questions require confidentiality due to the legitimate interests of those involved and third parties. According to Section 29 Para. 2 LVwVfG, the authority is not obliged to allow access to files if it impairs the proper performance of the authority's tasks, if the knowledge of the contents of the files would harm the welfare of the federal government or a state or if the processes are must be kept secret by law or by their nature, in particular because of the legitimate interests of those involved or third parties. In essence, processes requiring secrecy are those for which no secrecy regulations apply, but for which there is a legitimate interest in secrecy, which, when weighing up interests and quality in the individual case, outweighs the interest of those involved in accessing the files (cf. OVG North Rhine-Westphalia, judgment of 08/25/2022 - 13 A 442/20 -, juris; Herrmann, Bader/Ronellenfitsch, BeckOK VwVfG, as of: 04/01/2023, § 29, Rn. 30). In the private sector, the need for secrecy is to be affirmed, particularly in the case of business secrets (Stelkens/ Bonk/Sachs, VwVfG, 10th edition 2023, § 29, paragraphs 73 to 74). As already explained, the test questions represent protected trade secrets. S.v. GeschGehG. In addition, there is a legitimate interest in secrecy from the fact that, as already stated, the test measures cognitive abilities. For its significance, it is therefore crucial that the test questions and the associated answers are as untrainable as possible, because this would distort the test results and ultimately make the test unusable. The disclosure of the test questions and answers as well as the opportunity requested by the plaintiff to receive copies of these would contribute to trainability (see OVG North Rhine-Westphalia, judgment of August 25, 2022 - 13 A 442/20 -, juris, on the TM -WISO and resolution of October 9, 1987 - 11 B 1951/87 -, NVwZ-RR 1989, 189 f. on the TMS).After all, the applicant has no right to have his unredacted test booklet issued in copy.2.a. The plaintiff's lawsuit demanding that the defendant university be obliged to provide information as to how high the costs are that are paid by the coordination office to the ... and how these are made up, alternatively, what the total payments to ... in the years 2020 and 2021 is admissible as an obligation action. The decision on a request for information in accordance with the Freedom of Information Act of the State of Baden-Württemberg (LIFG) meets all the requirements of an administrative act in accordance with Section 35 Sentence 1 LVwVfG. The authority examines comprehensively whether the legal requirements for a right to information are met and whether there are any reasons for refusal. In doing so, it must weigh up goods and interests. This decision contains the regulation that speaks for the existence of an administrative act (cf. BVerwG, judgment of February 20, 2013 - 6 A 2.12 -, juris and decision of May 3, 2016 - 7 C 7.15 -, juris). The preliminary procedure required by Section 68 Paragraph 1 Sentence 1 VwGO was carried out at least at the relevant time of this decision. After the defendant initiated a participation procedure in accordance with Section 8 LIFG and ... refused its consent to provide the information, the defendant rejected the plaintiff's application in a decision dated November 17, 2022. The defendant rejected the plaintiff's objection to this with a notice of objection dated May 22, 2022.b. However, the lawsuit is unfounded. As a result, the defendant rightly refused to provide the plaintiff with the requested information. The scope of application of the LIFG is not blocked in accordance with Section 2 Paragraph 3 No. 2 LIFG. According to Section 2 Paragraph 3 No. 2, the LIFG does not apply to institutions with the task of independent scientific research, universities according to Section 1 of the State Higher Education Act, schools according to Section 2 of the School Act for Baden-Württemberg as well as training and examination authorities, insofar as research, art, Teaching, performance assessments and examinations are affected. In the broadest sense, this is about the implementation of the TMS by the coordination office, which is affiliated with the defendant University of Heidelberg. The TMS is also likely to be a performance assessment (see admission regulations, appendix to § 4, I., 1). However, the exclusion only applies to teaching, academic work, performance assessments and examination procedures in the actual sense, but not to general administration outside of teaching, e.g. B. Use of funds and procurement issues (see Beyerbach, BeckOK, Information and Media Law, Gersdorf/Paal, 40th Edition, as of November 1st, 2021, LIFG BW, § 2, Rn. 15). In the present case, the requested information, namely the amount of costs that the coordination office pays to ... in connection with the implementation of the TMS, concerns the area of use of funds and thus an activity that can be assigned to the administrative area. Basis for the claim with the main application and the plaintiff's request pursued in the alternative application is Section 1 Paragraph 2 LIFG. According to this provision, those entitled to apply have a right to access to official information from the bodies required to provide information in accordance with the LIFG. The plaintiff is entitled to apply as a natural person within the meaning of Section 3 No. 1 Variant 1 LIFG; The defendant is a body required to provide information within the meaning of Section 3 No. 2 LIFG in conjunction with. V. m. § 2 Para. 1 No. 3 LIFG. Regarding the information requested by the plaintiff, namely the amount of costs that are paid to ..., in particular - according to the auxiliary request - the total payments to ... in the years 2020 and 2021, this is official information within the meaning of Section 3 No. 3 LIFG. This includes any record that already exists at a body subject to the information obligation and serves official purposes, regardless of the type of storage, with the exception of drafts and notes that are not intended to become part of a process. In particular, these are records for official purposes. The costs that are paid to ... in connection with the TMS are incurred in the performance of an official activity and are related to an official activity. They arose as part of the coordination office's responsibility to organize and carry out the TMS as an indirectly job-related performance survey with regard to Article 12 of the Basic Law. However, the plaintiff's request for information is contradicted by the reason for exclusion in Section 6 (2) of the LIFG. According to Section 6 Sentence 2 LIFG, access to trade or business secrets may only be granted if and as long as the protected person has consented. The protection of trade and business secrets through Section 6 Sentence 2 LIFG takes into account the freedom of occupation and property in Articles 12 and 14 of the Basic Law as well as – for fiscal action by the public sector – budgetary principles. The words “company or business secret” represent vague legal terms and are fully reviewable in court. The concept of operational or business secret is not described in more detail in the LIFG, but is assumed by it as it has been developed in administrative case law, taking into account the understanding of the term under competition law. According to this, trade and business secrets are all facts, circumstances and processes relating to a company that are not obvious but are only accessible to a certain group of people and the legal entity has a legitimate interest in not disseminating them. An interest in non-distribution is recognized if the disclosure of the information is likely to make exclusive technical or commercial knowledge available to competitors and thus adversely affect the company's competitive position (see above: VG Freiburg, judgment of November 30, 2021 - 10 K 4047 /20 -, juris with references to the case law of the BVerwG and the VGH Baden-Württemberg; see also: BVerwG, judgment of June 17, 2020 - 10 C 22.19 -, juris; VGH Baden-Württemberg, judgment of June 29, 2017 - 10 S 436/15 -, juris; BayVGH, decision of January 7th, 2020 - 8 ZB 18.1652 -, juris; OVG Rhineland-Palatinate, decision of January 8th, 2014 - 10 A 11064/13 -, juris; OVG North Rhine-Westphalia, judgment of December 18, 2013 - 5 A 413/11 -, juris; VG Stuttgart, judgment of October 29, 2020 - 14 K 2981/19 -, juris). It is sufficient for the protection of secrets if the information disclosed does not itself constitute a business secret, but allows conclusions to be drawn about it (cf. BVerwG, judgment of September 24, 2009 - 7 C 2.09 -, juris). All trade and business secrets are included technical data of a company, e.g. E.g. construction documents, computer programs and model sketches. Accordingly, the payments..., in particular the total payments in 2020 and 2021, are company-related information. They are also not obvious because they are kept in the corporate sphere and are not easily accessible to any external party or even generally known. This is precisely where the plaintiff's request for information arises. There is also a legitimate interest in secrecy. This exists if the disclosure of the information is likely to make technical or commercial knowledge accessible to market competitors and thus adversely affect the company's competitive position (BVerwG, judgment of May 28, 2009 - 7 C 18.08 -, NVwZ 2009, 113 f. ). The special features of the respective law or subject area must be taken into account. According to this, the requested information about the amount of the costs and, furthermore, the requested breakdown of the costs are to be viewed as trade secrets. Disclosing the amount of the costs combined with a breakdown contradicts the legitimate economic interests.... Even after the defendant's explanation, the defendant refused to consent to the disclosure of the costs on the grounds that its cost calculation represents a relevant business secret. The plaintiff has not claimed anything to the contrary and is not otherwise apparent to the chamber. To the extent that the plaintiff in the objection proceedings requested the release of a copy of the message with which consent was rejected, it should be noted that a company must in principle demonstrate to the authorities that it is a trade secret. However, this only serves to check the authority. If the authority shares this view, it does not have to forward the justification to the applicant. The authority examines the existence of operational and business secrets ex officio. In individual cases, it can decide independently whether trade secrets exist if it has sufficient knowledge to do so (see VG Braunschweig, judgment of October 17, 2007 - 5 A 188/06 -–, juris). This is the case here. The plaintiff is currently requesting information about the payments that the coordination office made to... Naturally, she is completely familiar with these. She can therefore check on her own initiative whether these are trade secrets, which she has done. In its negative decisions, the defendant explained that there were trade secrets. The payments that the coordination office makes to ... for the development and evaluation of the TMS are relevant to competition law. Getting known can promote foreign competition and weaken your own. It is sufficient for this that it can have a detrimental effect on ... if competitors become aware of the costs (cf. VG Braunschweig, judgment of October 17, 2007 - 5 A 188/06 -–, juris). Passing it on to third parties would be likely to cause economic damage. Third parties would thereby be able to offer the coordination office the test development and evaluation more cost-effectively or to calculate it more cost-effectively, with the further consequence that the coordination office could also offer the TMS to participants more cheaply. It is common knowledge that each test participant has to pay a fee of EUR 100 for their intended participation in the TMS. Furthermore, the defendant university informed the plaintiff that the amount of the participation fee is set within the framework of a guideline based on full cost coverage and that no sales tax is paid. Furthermore, the defendant university answered the plaintiff's question about the turnover from participation fees collected in the years 2020, 2021 and 2022 in figures and stated that the turnover from participation fees collected is based on the number of participants who are bindingly registered for the TMS. The costs for carrying out the test runs in 2020 and 2021 were also given in figures. Finally, the defendant has stated that no profits are made from implementing the TMS. If the defendant were to now also announce how much the coordination office paid to ... for the test development and evaluation, it would easily be possible to calculate how much of the participation fee using the information already provided, which is therefore also generally known EUR 100 towards the costs of... This rate is not yet generally known. So far, knowledge of this only exists in the contractual relationship between the coordination office and ..., and possibly also in the relationship with the universities involved in the TMS, on whose behalf the TMS is carried out. With knowledge of this quota, companies that are not or are not yet in competition with ... in the area of medical tests or study aptitude tests could also enter the market as new providers to the coordination office and offer their services within the framework of the TMS that the coordination office could ultimately offer the TMS more cheaply for the participants. Section 6 sentence 2 LIFG applies absolutely and is not subject to any consideration (see Beyerbach, BeckOK Information and Media Law, Gersdorf/Paal, 40th edition, as of November 1st, 2021, LIFG BW, § 6 marginal number 2). Therefore, even if the applicant has a particular interest in receiving this information, the information must be refused. Apart from that, the plaintiff did not justify his application in accordance with Section 7 Paragraph 1 Sentence 3 LIFG and did not demonstrate an interest in information in the present proceedings. Finally, contrary to the plaintiff's opinion, third parties within the meaning of Section 8 Paragraph 1 LIFG can also be a legal entity under private law , such as ..., which an authority uses to fulfill its public law tasks. Such a person, who is not obliged to make a claim under the LIFG (cf. Section 3 No. 2 LIFG in conjunction with Section 2 Paragraph 1 LIFG), occupies a kind of “hybrid position”. Functionally, the private law subject is z. B. involved in the execution of official tasks, as in the present case, as administrative assistants or through other forms of cooperation. Personnel remains the legal subject of private individuals whose personal data, company and business secrets, etc. are protected. To the extent that relevant information is available at the body required to provide information, as is the case here, the subject of private law can assume the role of a “third party” and is subject to the requirements of Section 8 Paragraph 1 i. V. m. § 6 LIFG to participate in the proceedings (see Schoch, Freedom of Information Act, 2nd edition 2016, § 8 Rn. 24). After all, the plaintiff is not entitled to information about the amount of the costs incurred by the coordination office which ... provides.3.The plaintiff's claim to establish that the defendant is not entitled to charge a participation fee of EUR 100 or EUR 83 for participation in the TMS is also unsuccessful. The lawsuit is already inadmissible. The plaintiff originally requested a refund of the participation fee paid in the amount of EUR 100. After the defendant had done this - from its point of view as a gesture of goodwill - the plaintiff requested in a letter dated October 11, 2022 to determine whether the defendant is entitled to pay a participation fee of EUR 100 or EUR 83 for participation in the TMS to raise. This application for a declaratory judgment is inadmissible. In terms of its content, it is not aimed at clarifying the existence or non-existence of a legal relationship between the parties involved (Section 43 Paragraph 1 Sentence 1 1st Alternative VwGO). Rather, the validity of the defendant's statutes on the charging of fees for the test for medical studies (TMS) in Baden-Württemberg from December 2nd, 2020, according to which, according to § 2, the fee for participation in the TMS is EUR 100 per person, ultimately becomes made the subject of the declaratory judgment action. The fact that this is the plaintiff's concern can also be seen from the statements in the statement of claim dated August 3, 2022 with regard to the original challenge that the fee statute refers to Section 16 (3) LHGebG BW as the legal basis, according to which the universities charge the fees could, but on the other hand... performs the TMS. However, the legal system in Baden-Württemberg only provides the regulatory review application in accordance with Section 47 VwGO for the direct review of the validity or invalidity of the statutory law, so that the declaratory judgment action is therefore excluded as a permissible type of action. Furthermore, the plaintiff has not demonstrated any interest in making a determination; In particular, the stated intention to repeat the test alone is not sufficient to establish a risk of repetition. According to Section 8 Paragraph 1 Sentence 1 Annex to Section 4 of the Admission Regulations, participants who have already taken part in a TMS test and received a TMS result have the opportunity to repeat the test once. According to Section 8 Paragraph 1 Sentence 2, the prerequisite is to register again within one year (12 months) after initial participation. After this repeat period has expired, taking part in the test again is excluded. The plaintiff, who took part in the TMS in Frankfurt on May 7th, 2022, has not stated that he even registered for the fall TMS 2022 or for the spring TMS in May 2023. 4. As far as the parties involved in the main case have declared settled with regard to the application not to delete the plaintiff's personal data by the deadline of September 30, 2022, as well as with regard to the requested provision of information on the questions posed in the statement of claim dated August 3, 2022. Numbers 1 to 10, 12 and 13 are over § 161 Paragraph 2 Sentence 1 VwGO to decide on the costs of the procedure at its reasonable discretion. When deciding on costs, which must take into account the current state of affairs and the dispute, there is no need for further clarification of the facts or the decision of difficult legal questions. The defendant did bring about the final event by providing the information requested by the plaintiff in its response to the lawsuit dated September 28, 2022 has issued and has met the requested request and the plaintiff has subsequently declared the legal dispute settled in the main matter. However, when bearing the costs, it must be taken into account that the plaintiff does not have his personal data deleted by the deadline of September 30, 2022 with regard to the request , made this request to the defendant for the first time in the statement of claim. Since the defendant complied with this request immediately in the statement of defense, it is justified to allow the plaintiff to bear the costs of the proceedings. With regard to the questions posed in the statement of claim, which the defendant answered in the statement of defense dated September 28, 2022, this corresponds it is at its reasonable discretion to split the costs of the proceedings against one another. This decision is based on the following considerations: The defendant's email dated July 8th, 2022, in which she declared that the scope of application of the State Freedom of Information Act was not open according to Section 2 Paragraph 3 LIFG, could be a rejection of the email dated June 27th .2022 represent questions asked. It would then have been incumbent on the plaintiff to carry out preliminary proceedings before bringing the present action; The present action for failure to act would have been inadmissible due to the lack of an objection to the email dated July 8, 2022 that rejected the requested information. In view of this, it might be appropriate for the plaintiff to bear the costs. On the other hand, the defendant's email dated July 8th, 2022, which in particular does not contain any tenor or information on legal remedies, could not represent a negative decision, with the result that the plaintiff's application for information pursuant to Section 7 LIFG was sent in an email dated June 27th .2022 was not decided at all before the action was filed, in particular not within the deadline of Section 7 Paragraph 7 LIFG. In this respect, the action would then be admissible as an action for failure to act. Since the defendant provided the requested information directly in its defense and the plaintiff immediately declared the legal dispute settled, it would be justified to let the defendant bear the costs of the proceedings. The question of whether the defendant's email of July 8, 2022 represents a decision rejecting the requested information in accordance with Section 7 LIFG does not need to be decided in the present dispute. It is not the court's job to decide legal questions that remain unresolved in the main matter after the legal dispute has been settled simply for the sake of apportioning costs (BVerwG, decision of April 19, 2021 - 6 C 5.20 -, juris). Given this factual and legal situation, the Chamber is of the opinion that it is justified to split the costs of the proceedings against each other. The parties involved therefore each bear half of the court costs and each of the parties involved retains their extrajudicial costs.5. If the lawsuit was dismissed, the plaintiff must bear the costs of the proceedings in accordance with Section 154 Paragraph 1 VwGO. If the legal dispute in the main matter has been declared settled and the costs of the proceedings have been decided at reasonable discretion in accordance with Section 161 Paragraph 2 Sentence 1 VwGO, the judgment is incontestable (Sections 92 Paragraph 3 Sentence 2, 158 Paragraph 2 VwGO).In Otherwise, the following appliesB E S C H L U S SThe amount in dispute is determined in accordance with Section 39 Paragraph 1 GKG in conjunction with. In accordance with Section 52 Para. 2 GKG set at EUR 30,000 (EUR 5,000 for the publication of the unredacted test booklet; EUR 5,000 for not deleting the personal data; EUR 5,000 for the right to information about the costs paid to ITB according to the LIFG; EUR 5,000 for the application for a declaration regarding the charging of fees; EUR 5,000 for the information on questions 1 to 4 and EUR 5,000 for the information on questions 5 to 10, 12 and 13).
