The qualification of information requests to the government: nothing is what it seems

In May 2020, the Administrative Law Division of Raad van State (Division) issued a ruling clarifying when there is a request for information under the Wob.(1). In summary, the Division explained in this ruling that although a requester does not have to state an interest when making a Wob request, the interest of the requester or the intent or purpose with which he makes a request may be relevant. First, to determine whether there is an abuse of rights and, second, in determining whether a request for information actually qualifies as a Wob request.(2)

The main rule is that when a person makes a request to an administrative body for information contained in documents on an administrative matter, invoking the Wob, that request is a Wob request. This is different only if it appears from (i) the nature of the request, (ii) the content of the request or (iii) statements made by the applicant, that the applicant did not intend to submit a Wob request.

The fact that it is not a Wob request may therefore be apparent from the nature of the request. This may be the case, for example, if someone requests access to their file or personal data. In that case, it may concern a request for inspection within the meaning of Article 15 of the AVG instead of a Wob request.

The content of the request may also be relevant. In this context, the Division gives as an example the situations in which a person asks for information, questions or merely requests the transmission of documents in a proceeding in which he is an interested party.

Regarding the relevance of the applicant's statements indicating that it is not a Wob request, consider the situation where the applicant indicates that he does not want the information to be made public and provided only to him.

The main rule and the exceptions formulated to it also apply if the request relates only to (personal) data of the applicant himself. However, that circumstance can be an indication that the requester did not intend to submit a WOB request. This applies in particular if granting the request would mean that (sensitive) personal data of the applicant would be disclosed.

The Division's ruling discussed above specifically addresses the situation in which an information request is made for which the question is whether it is a Wob request. The question of what kind of request an administrative body is dealing with, and what kind of request a data subject intended to submit, also arose earlier this year in relation to a request for inspection pursuant to the Wob and Article 15 of the AVG. In an application for a preliminary injunction before the Limburg District Court last June, the question arose as to whether the AVG applied.(3)

The applicant twice requested access to a third party's benefit file to supplement the objection to the decision to withdraw benefits. The benefit file requested is a joint file, it contains (apparently in addition to the applicant's data) the data of two other persons.

In his request, the applicant referred to both the Wob and the right of inspection provided for in Article 15 of the AVG. The administrative authority pointed out to the applicant that if the requested information were to be made public pursuant to the Wob, everyone would have access to it. The administrative body also pointed out that the applicant could also submit a request under Section 7:4 of the Awb to inspect documents so that inspection would be limited to the appeal procedure involving the decision to withdraw benefits. Article 7:4 stipulates that the administrative body must make all documents related to the case in an objection procedure available for inspection by the interested party for at least one week prior to the hearing. Interested parties may also obtain copies of these documents. The applicant believes that it follows sufficiently from his request that he is invoking the Wob and the AVG (and not 7:4 Awb).

The information request is then construed by the governing body as only a request under Article 15 of the AVG, and the governing body decides to grant access to the file on the condition that the persons whose personal data also appear in the benefit file are present.

The applicant does not agree with this condition and argues that there is no legal basis for it. The applicant therefore asks the preliminary injunction court to give preliminary judgment that this condition was improperly imposed and to order that he be given access to the file (subject to forfeiture of a penalty payment) by June 14, 2020.

Pursuant to Article 15 of the AVG, a data subject has the right to be informed by the data controller about whether data concerning him are being processed, for the purpose of acquainting him with the personal data being processed and verifying their accuracy and lawfulness. The applicant wants to see the benefit file only to support the objection letter. He has thus, despite the mention of the AVG and the Wob in the request, in the opinion of the interim relief judge made a request under Article 7:4 of the Awb and not under Article 15 of the AVG. For that opinion, the interim relief judge sought to follow a previous ruling of the Division.(4)

In short, the qualification of an information request may seem simple at first glance, but practice shows that it is not always clear to both applicants and administrative bodies what the correct legal basis for an information request is. The preceding rulings do not alter the fact that it is possible for a requester to submit a request that qualifies as, for example, both a request for inspection and a request under 7:4 of the Awb.

It is unfortunate that the preliminary injunction judge did not reach an opinion on the condition as attached to the inspection of personal data. The applicant disputes the lawfulness of that condition. Pursuant to Article 41 of the General Data Protection Implementation Act (UAVG), a controller may disregard the request for inspection insofar as it is necessary and proportionate to protect the data subject or the rights and freedoms of others. Given the personal data of third parties that are also in the benefit file, such a condition would seem to be a way to limit the access request without making it entirely inapplicable. However, I doubt that such a condition would accommodate the rights and freedoms of others. It seems more appropriate to limit access to that part of the file that relates to the requester. After all, Article 15 of the AVG does not give a right to access personal data of others.

Footnotes