VGH München - 7 CE 20.1822

VGH München - VGH 7 CE 20.1822
Court:	VGH München (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 4 (1) Bavarian Press Law (Bayerisches Pressegesetz - BayPrG) Article 5 (1) Basic Law for the Federal Republic of Germany (Grundgesetz - GG) Article 11 BayPrG
Decided:	19.08.2020
Published:
Parties:
National Case Number/Name:	VGH 7 CE 20.1822
European Case Law Identifier:
Appeal from:	VG Ansbach (Germany) AN 14 E 20.1446
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Bayerische Staatskanzlei (in German)
Initial Contributor:	n/a

Request for information on the cumulative total number of COVID-19 infections in a county of Bavaria does not interfere with data protection law and Article 11 BayPrG is not applicable.

English Summary

Facts

As a freelance editor of the daily newspaper "Main-Post", the applicant asserts a right to information under press law by way of interim relief. The defendant challenges that decision by lodging an appeal. He submits that the cumulative total of COVID-19 cases in the individual administrative district communities since the outbreak of the infection in Germany, as requested by the applicant, does not justify a far-reaching public interest in information, nor does it allow a conclusion to be drawn on health risks which could justify a particular urgency in providing information. The decision does not provide any information on the public interest in information to be weighed up.

Dispute

A journalist of the "MainPost" requested the cumulative total of COVID 19 cases in county municipalities of county N. in Bavaria since the outbreak of the pandemic in Germany. The district of N. consisted of 38 municipalities, some of which had fewer than 1,000 inhabitants. The defendant argues that due to the small-scale and village character alone, it can be expected that a reconstruction of personal references is easily possible. He makes a reference to the statements of the Bavarian State Commissioner for Data Protection in his Current Information 31 "Statistical data on COVID-19 diseases accurate to the community? (as of 1.7.2020), that only in municipalities with at least 10,000 inhabitants do not generally raise any data protection-related objections to the disclosure of daily total numbers of diseases since the beginning of the SARS Cov-2 pandemic.

Holding

Article 11 BayPrG is not applicable. This rule applies to situations of further processing of data by press companies. However, it cannot be inferred from the statements made by the Bavarian Commissioner for Data Protection that the information requested by the applicant, relating to those municipalities in the district of N. in which fewer than 10 000 people live, makes it possible to draw conclusions about persons specifically affected. The applicant is not requesting information on the daily infection figures, but only on the cumulative total number of infections documented to date in the individual municipalities. On the basis of these flat-rate figures over a period of several months (since January 2020), it cannot be assumed - even in small communities with low infection rates - that it is possible to draw conclusions about specific persons at reasonable expense without further facts.

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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.

Title:
Request for information on the cumulative total number of COVID-19 infections in a county
Standard chains:
BayPrG Art. 4 para. 1
VwGO § 123 (1) sentence 2, § 146, § 152, § 154 (2)
ZPO § 920
Basic Law Article 5(1)
GKG § 47, § 52 (2), § 53 (2) No. 1
Keywords:
Press law information request, SARS Cov-2 pandemic, community-specific infection figures, claim, order, injunction, emergency legal protection, reporting, SARS Cov-2, information, information request, COVID-19, interest in information, health data, pandemic
lower court:
VG Ansbach, decision of 03.08.2020 - AN 14 E 20.1446
Place of discovery:
BeckRS 2020, 20467
 
Tenor
I. The appeal is dismissed.
II. order the defendant to pay the costs of the appeal proceedings.
III. the amount in dispute for the appeal proceedings is set at EUR 2,500.
Grounds
I.
1
As a freelance editor of the daily newspaper "Main-Post", the applicant asserts a claim for information under press law by way of interim relief.
2
By order of 3 August 2020, the Ansbach Administrative Court granted the applicant's application for a temporary injunction pursuant to Section 123 (1) sentence 2 of the German Rules of the Administrative Courts (VwGO) and obliged the defendant to provide the applicant with information on how many confirmed COVID-19 cases there are to date in District N., broken down by the individual municipalities in the district.
3
That decision is challenged by the defendant in his appeal. He submits that the cumulative total figures of COVID 19 cases in the individual rural district communities since the outbreak of the infection in Germany, as requested by the applicant, do not establish a far-reaching public interest in information, nor do they allow conclusions to be drawn about health risks which could justify a particular urgency in providing information. The decision does not provide any information on the public interest in information to be weighed up. The rate of infection in the district concerned is very low. The figures at district level are reported daily, so that the public's interest in information is taken into account. The Court of First Instance failed to take account of the private rights or fundamental rights of third parties. The administrative district is extremely small, the majority of the municipalities are village-based. Therefore, information about the municipalities concerned was an essential starting point for locating the persons affected. Since "everybody knows everybody", it is possible to quickly reconstruct the personal data. This leads - as past cases have shown - to the identification of affected persons and the impairment of personal rights. Furthermore, the information requested by the applicant did not have sufficient topicality to justify a temporary injunction. The requested numerical material does not show any rate of increase in the number of persons currently tested positive for COVID-19. However, a possibly still recognisable reference to the present lacked the necessary weight due to the lack of up-to-date information.
4
The defendant claims that the Court should
5
reject the applicant's application, amending the order of the Ansbach Administrative Court of 3 August 2020
6
The applicant claims that the Court should
7
dismiss the appeal.
8
In support of his claims, he essentially submits that rights to information under press law are regularly urgent. It falls within the right of self-determination of the press to decide whether there should be timely reporting. The Administrative Court had rightly denied that the right of personality of persons who are ill had been infringed, since without additional information such as name, age or sex, the incidence figures alone do not allow any conclusion to be drawn as to identity even in the case of municipalities with a small number of inhabitants. The reported case of a family from O. does not change this assessment. For in this case, in addition to the place name and the acute infection, the fact that the family had returned from a skiing holiday in South Tyrol in February was also reported. The information provided by the Bavarian State Commissioner for Data Protection is irrelevant here because neither the Bavarian Data Protection Act nor the Basic Data Protection Regulation (DGSVO) applies because of Article 11 BayPrG.
9
For further details of the state of facts and of the dispute, reference is made to the contents of the court files of both instances.
II.
10
The admissible complaint is unsuccessful on the merits. For the reasons given in the appeal proceedings, which the Senate is limited to examining (Paragraph 146(4), first and sixth sentences, of the VwGO), it does not follow that the decision of the administrative court must be amended.
11
1 The Administrative Court rightly assumes that the applicant has substantiated a claim for an injunction (§ 123 (3) VwGO, § 920 ZPO). The defendant's obligation, which the administrative court tends to deny, to notify the applicant of the cumulative total infection figures broken down by the municipalities in the district of N. since the beginning of the SARS Cov-2 pandemic does not - this is to be admitted by the defendant - constitute a provisional arrangement but a definitive anticipation of the main proceedings. With the provision of information, the applicant's claim under Article 4(1) BayPrG is fulfilled and any substantive issues are settled. This is because the applicant is requesting one-off information in the present proceedings. It is therefore not important that the infection figures possibly change during the course of the (judicial) proceedings. The Administrative Court initially assumed that there was no anticipation of the main proceedings. However, in the alternative, it justified its decision by stating that in the present individual case the more stringent requirements for an anticipation of the main proceedings by a final decision were also met. This is not objectionable.
12
The prohibition of anticipating the main proceedings does not preclude an order under Paragraph 123 of the German Rules of the Administrative Courts (VwGO) if this is necessary to grant effective legal protection and a high degree of probability indicates that the claim pursued in the main proceedings is well-founded (BVerwG, U.v. 18 April 2013 - 10 C 9.12 - NVwZ 2013, 1344 marginal no. 22; BayVGH, B.v. 18 March 2020 - 7 CE 19.2143 - juris marginal no. 16). In this context, stricter requirements must be imposed on the presentation of both the asserted reason for the order and the claim for the order. The stronger the reason for the order, the more likely it is that an anticipation at the expense of the authority will be considered (stRspr, cf. e.g. BayVGH, B.v. 24 January 2017 - 7 CE 16.2056 - juris marginal no. 9; Happ in Eyermann, VwGO, 15th edition 2019, § 123 marginal no. 66a).
13
These conditions are met here. The defendant does not succeed in its argument that the applicant's request for information lacks the necessary topicality. It must be borne in mind in this connection that, in principle, the press itself decides, within the limits of the law, whether and how it reports on a particular subject. The "whether" and "how" of reporting is part of the right of self-determination of the press, which also protects the manner in which it procures information directed at it under fundamental rights. The right of self-determination in terms of time also includes the freedom of the press to decide whether reporting should be timely. In this context, however, it is sufficient if urgent legal protection is only granted if there is an increased public interest and the reporting has a strong relevance to the present (cf. BVerfG, B.v. 8 September 2014 - 1 BvR 23/14 - juris para. 30), so that the issue of a temporary injunction is necessary to avert substantial disadvantages. In order for the press to be able to exercise its control and mediation function, no excessive requirements may be imposed, particularly with regard to the topicality of a report. Therefore, an increased public interest and a strong reference to the present cannot be denied in principle simply because the reporting is not aimed at reports that cannot be postponed, such as the discovery of serious breaches of the law by state decisions, and it remains possible at a later date (BVerfG, B.v. 8.9.2014 loc. cit. para. 30). In the present case, the applicant has sufficiently demonstrated why it needs the requested information immediately and that the temporary injunction applied for is still necessary for this purpose even at the time of the appeal decision. The applicant's argumentation, which the Administrative Court rightly follows, that it is currently of high public interest to report on the development of the SARS Cov-2 pandemic, also in relation to specific areas, is not objectionable. The reporting intended by the applicant has sufficient topicality. Irrespective of the fact that it is questionable whether he could even claim this in the present case, it is currently not necessary for the applicant to know daily infection figures in order to be sufficiently up-to-date. The press must remain free to decide for itself which data basis it will use for its reporting. An evaluation and weighting of the press' interest in information is generally not possible. It is not compatible with the constitutional protection of the press (Article 5 (1) sentence 2 of the Basic Law) to make the enforcement of its interest in information dependent on a state assessment of the content of the information request. The press decides for itself what it considers to be in the public interest and what not. It is therefore up to the press itself to assess what information it needs in order to prepare a specific topic for the purpose of possible reporting (see BVerwG, U.v. 16.3.2016 - 6 C 65.14 - juris nos. 18 f.).
14
2 The Administrative Court also rightly assumes that the applicant can in principle base the claim for information asserted by him (claim for an injunction) on Art. 4 BayPrG. According to this, the press has a right to information vis-à-vis authorities which it can exercise through its editors (Art. 4 Para. 1 Sentences 1 and 2 BayPrG).
15
a) The District Office, as the authority obliged to provide information, may only refuse to provide information if there is a duty of confidentiality based on civil service law or other legal provisions (Art. 4 para. 2 sentence 2 BayPrG). The Bavarian Press Act does not provide for a right to refuse to provide information beyond the aforementioned confidentiality obligations. However, the Administrative Court rightly assumes that duties of confidentiality not only follow from (general) "secrecy regulations", but that limits may also arise to the right to information under press law if the answer to an enquiry affects the fundamental rights of third parties, such as the right to informational self-determination as a special expression of the general right of personality (cf. e.g. BayVGH, U.v. 7 August 2006 - 7 BV 05.2582 - juris marg. 48). The protection of individuals against unauthorised disclosure of their personal data is covered by the right to informational self-determination as a characteristic of the general right of personality (Art. 1(1) and Article 2(1) of the Basic Law; Articles 100, 101 of the Federal Constitution) (fundamentally BVerfG, U.v. 15 December 1983 - 1 BvR 209/83 and others - BVerfGE 65, 1/43; BayVGH, U.v. 7 August 2006 - 7 BV 05.2582 - VGH as amended 59, 196/204). This fundamental right guarantees the individual's right to decide when and within what limits personal life facts, including health data such as COVID-19 infections, are disclosed.
16
b) If fundamental rights positions oppose each other, they are to be brought into an appropriate balance and it is to be weighed in particular whether this is constitutionally justified on the basis of the freedom of the press (Article 5.1 of the Basic Law). (Article 5.1 sentence 2 of the Basic Law) or the interest in secrecy, which is also constitutionally protected, of the district residents infected or sick with COVID-19 is to be given preference (see BVerwG, U.v. 27 September 2018 - 7 C 5/17 - juris marginal no. 29; BayVGH, U.v. 24 November 2016 - 7 B 16,454 - juris marginal no. 17). The requested information on the cumulative total number of persons who have fallen ill with COVID-19 since the beginning of the pandemic in relation to the respective area of the 38 rural district communities in the district of N. does not constitute an encroachment on the scope of protection of the fundamental right to informational self-determination. In the end, it is therefore no longer necessary to weigh up the various options.
17
c) The Administrative Court rightly assumed that an infringement of the personal rights of private individuals is not to be feared and consequently affirmed the applicant's right to information regarding the question asked. The defendant did not succeed in its argument that the general right of personality of the persons concerned was also affected if they could be individualised or identified without being named.
18
aa) The information requested by the applicant is already not personal data. According to Art. 4 No. 1 Half. 1 DSGVO, personal data is all information relating to an identified or identifiable natural person.
19
The desired information (community-specific cumulative infection figures since the beginning of the SARS Cov-2 pandemic) clearly does not refer to concrete, named persons, but only to the abstract total number of COVID-19 infections in the individual district communities.
20
Nor is it information whose personal reference is not evident from the desired concrete data set, but which can be established with the help of otherwise known information and thus with the help of so-called additional knowledge. According to the case law of the Federal Administrative Court (U.v. 27.11.2014 - 7 C 20.12 - juris marg. no. 41), it must be decided on a case-by-case basis whether a deanonymisation of data and thus a subsequent individual assignment to a person can be expected with sufficient probability. This is not the case in the present case, contrary to the statements in the grounds of appeal.
21
The applicant's request for information extends, without demanding further differentiation, to the cumulative total number of COVID-19 infections in District N. broken down by the individual district communities since the beginning of the pandemic. A further differentiation, e.g. according to the number of patients recovered, hospitalised or deceased, or according to the number of currently "active" cases, or according to the gender or age of the affected persons, is not requested. Particularly against the background that the reporting period of the requested information covers the total duration of the SARS Cov-2 pandemic since January 2020 and no further differentiations are queried apart from the community-specific breakdown, the information content of the requested information is reduced to such an extent that it offers too few starting points for further research aimed at obtaining additional knowledge, on the basis of which it would be possible to draw conclusions about a specific person. In particular, the Senate is of the opinion that the requested information does not allow conclusions to be drawn about persons currently acutely infected or ill with COVID-19.
22
bb) This applies irrespective of the fact, which the defendant has put forward in the statement of grounds of appeal, that the district of N. consists of 38 municipalities, some of which have fewer than 1,000 inhabitants. The defendant does not get away with the argument that, due to the small-scale and village character alone, it can be expected that a reconstruction of personal references is easily possible. Nor does the reference to the statements of the Bavarian State Commissioner for Data Protection in his Current Information 31 "Statistical data on COVID-19 diseases accurate to the community? (as of 1.7.2020), that only in municipalities with at least 10,000 inhabitants does he not generally raise any data protection-related objections to the disclosure of daily total numbers of diseases since the beginning of the SARS Cov-2 pandemic, does not help the defendant to succeed.
23
It is true that, contrary to what the applicant claims, data protection requirements must be observed in the present case, as stated above. For in the present constellation it must be examined whether the defendant is obliged to hand over the requested data to the applicant. In the context of this examination, data protection aspects must be taken into account. Art. 11 BayPrG is not applicable in this relationship. This provision applies to the perspective of further processing of data by press companies, which must be distinguished from the present one. However, the reverse conclusion cannot be drawn from the statements made by the Bavarian Commissioner for Data Protection that the information requested by the applicant in this case with regard to those administrative district communities in the District of N. in which fewer than 10,000 people live makes it possible to draw conclusions about those specifically affected. This is because the applicant is not requesting information on the daily infection figures, but only on the cumulative total number of infections documented to date in the individual municipalities. On the basis of these flat-rate figures over a period of several months (since January 2020), it cannot be assumed - even in small communities with low infection rates - that it is possible to draw conclusions about specific persons at reasonable expense without further facts. The Senate does not ignore the fact that it is generally easier to reconstruct personal data in very small municipalities than in larger ones. However, there is a lack of other data categories (e.g. time of infection, number of patients recovered, hospitalised and deceased, number of "active" cases) or other location-related and concrete indications in individual cases (cf. the example of the BayLfD, Aktuelle Kurzinformation 31, p. 2 box) which could be used to produce an individualisation with reasonable (research) effort.
24
This also applies with regard to the case of a family from the district municipality O., named by the defendant, which had partially fallen ill with COVID-19 in February 2020 and was under considerable social pressure due to press reports in which the municipality O. was named. This situation cannot be compared with the present constellation. Notwithstanding the fact that the pandemic was still in its early stages in the Federal Republic of Germany at that time and that there was therefore a great deal of media interest in the first people to fall ill with COVID-19, the fact that the infection was "active" and the immediate return of the family from a skiing holiday in South Tyrol were published at that time in addition to the data "COVID-19 infection" and "name of the municipality". Such additional facts are missing in the present case. The applicant seeks only information on the total number of infections without demanding further differentiation. A reconstruction of the personal reference is not to be feared - without additional knowledge of at least the respective infection dates since January 2020 - at any rate with reasonable effort. In particular, it cannot be assumed that currently infected or sick persons can be identified. For even if the applicant and, if applicable, the public obtains knowledge of the spatial distribution of the occurrence of infections in the district through the requested information, this does not allow any conclusion to be drawn as to when the infections were present there and thus no reliable indication for further investigations and subsequently the reconstruction of a reference to a person.
25
As a result, the requested information on the cumulative infection figures in the individual district communities does not lead to the reconstruction, at reasonable expense, of which natural persons there were or are infected with COVID-19. The information requested is therefore not personal data. This means that the scope of protection of the basic right to informational self-determination is not violated.
26
It is therefore no longer necessary in the present case to weigh this against the applicant's interest in information, which is constitutionally guaranteed by the freedom of the press.
27
The decision on costs is based on § 154 (2) VwGO. The determination of the amount in dispute results from sec. 47, sec. 53 para. 2 no. 1, sec. 52 para. 2 GKG in conjunction with No. 1.5 of the Catalogue of Disputed Values for Administrative Jurisdiction (printed by Eyermann, VwGO, 15th edition 2019) and corresponds to the amount in dispute in first instance proceedings.
28
This decision is not subject to further appeal (§ 152 (1) VwGO).