For several years, the municipality of Arnhem's waste card system has been keeping privacy minds busy. On June 30, 2021, the Administrative Law Division of the Raad van State (the Division) rejected an enforcement request regarding the latest version of this system. We can learn from this ruling that it is important for a public body to give careful consideration to establishing the purposes of data processing before processing begins. If the identified purposes are reasonably aligned with the public interest they serve, there seems to be relatively wide scope for processing.
In June 2016, an Arnhem resident filed an enforcement request with the Autoriteit Persoonsgegevens (AP) because the offering of household garbage could no longer be done anonymously. The AP subsequently launched an investigation that led to the imposition of an order under penalty in 2017. At the time, the AP concluded that although the college had a basis for processing personal data for creating and managing the waste card and opening the waste containers; however, a basis for storing data on the waste system controller was lacking. Incidentally, the AP added that once the de-polluter-pays principle (diftar) was introduced by the Municipality of Arnhem, a sufficient basis for this processing might exist.
The municipality stops the unlawful processing first by opening the containers, then the card system is modified. After modification, the procedure is so that the moment a citizen holds his waste pass in front of the card reader, the internal chip code is compared with an authorization list stored on the card reader to check whether the pass gives access to the underground container. If it does, the container will open and the waste can be deposited. The internal chip code of a citizen's waste card is then immediately converted into a generic 9999 number. That anonymized number is stored on the card reader along with the time the container was opened and some technical aspects of the container.
At the request of the College of B&W (the College), the AP lifts the order for a periodic penalty imposed. The petitioner of the original enforcement request (appellant) objects to this decision of the AP. He believes that even after modification, the processing is still unlawful. Ultimately, after an appeal to the District Court of Gelderland, this objection procedure leads to this ruling by the Division.
Relevance of security risks
The appellant believes that security risks still exist with the new design that only briefly processes identifiable data. In this regard, the Division finds that the risk of misuse of the system relates to its security and is not relevant to determining the lawfulness of the processing.
Law in the formal sense?
Regarding lawfulness, the core issue is whether the processing is necessary for the performance of a task carried out in the public interest (Art. 6(1)(e) AVG). The appellant argued that the necessity must derive from a law in the formal sense. According to the Division, no such obligation arises from the AVG, the Charter or the Constitution. Legislation that serves as a basis for several processing operations is sufficient. Such legislation must be clear and precise and its application must be predictable for those to whom it applies.
The municipality's responsibility to ensure the collection of household waste should be considered a task of general interest. This task stems from Article 10.21 of the Environmental Management Act, which mandates the municipality not only to collect waste, but also to take into account the waste management plan in force and the order of preference included therein. The prevention of residual waste and the separate collection of household waste also falls under this task of general interest of the municipality. For the fulfillment of this task, the municipal government has a certain amount of leeway.
The college identified the following specific purposes, which the Division found to be "well-defined and expressly defined.
preventing use of the containers by businesses and non-Arnhemians;
determining which collection routes will be followed; and
determining in which neighborhoods education on waste separation is needed.
Answering the necessity question requires an assessment of whether the invasion of privacy is limited to what is strictly necessary to achieve the purpose. In particular, it must be assessed whether the purpose for which the personal data are processed cannot reasonably be achieved in another way that is less detrimental to the individuals involved in the processing of personal data.
The Division provides further detail on "the intensity" with which the review should take place. This is determined in part by the specificity of the alternatives put forward. In other words, the more detailed the data subject describes the alternative, the more intrusive the AP's review should be.
The College has some discretion. That the processing of the data must be necessary within the meaning of Article 6(1)(e) of the AVG does not mean that the processing is lawful only if the public interest task cannot be fulfilled without processing data. This is only the case if there are other ways of fulfilling the public interest task that can achieve the same objective or the processing is disproportionate.
In assessing proportionality, the Division considers it important that the data are only processed for a very short period of time. According to the Division, this line of reasoning does not violate the principle of minimal data processing. Indeed, the premise of the AVG is not that the processing of so-called ordinary personal data, such as an address, is prohibited. The AVG aims to regulate the processing of these data. There is also no fundamental right not to process this type of personal data. The processing is limited to what is necessary to determine the purposes. The AP was therefore allowed to take the view that the breach is proportionate to the purpose to be served by the processing.
The Division considers it plausible that if the containers were reopened, it would not be possible to prevent non-residents of Arnhem and businesses from dumping their waste in them. With the use of a waste card that is not linked to an address, the goal of preventing abuse cannot be achieved. It has also become plausible that with the introduction of garbage bags with a price surcharge, the goals of the Municipal Waste Plan 2012-2020 will not be achieved because the waste will be less well separated and will lead to more nuisance in the public space.
In view of the foregoing, the Division agrees with the District Court that the objective cannot reasonably be achieved in another manner that is less detrimental to the person involved in the processing of personal data. Thus, the court correctly held that the AP was entitled to take the position that the college no longer violates the AVG if the charge is lifted.
