In our practice, the question is regularly asked whether administrative bodies are allowed or even required to anonymize personal data in procedural documents under the AVG. In this blog you will read the answer.
The main rule is that in proceedings the documents relating to the case must be submitted in full. This is prompted by Article 6(1) of the ECHR (equality of arms). The parties must have access to all documents relating to the case. Since Article 8:42 of the Awb requires the submission of the documents relating to the case, the processing of the personal data contained in these documents is necessary to comply with a legal obligation (Article 6(1)(c) of the AVG).
This main rule applies not only in (appeals) but also in objections and for the forwarding of documents by the court under Article 8:39 of the Awb (See ECLI:NL:CBB:2022:794 (1) and ECLI:NL:CBB:2022:795 (2)).
Only if the court finds, in response to a reasoned request, that weighty reasons exist may passages in the documents relating to the case be lacquered pursuant to Article 8:29(1) of the Awb. Overriding reasons may (also) relate to personal data, for example if respect for privacy is at stake. However, high requirements are set for the justification of a request for limited access. By way of illustration, reference is made to the Division's ruling of June 26, 2020 (ECLI:NL:RVS:2020:1507 (3)), in which a request for application of Section 8:29(1) of the Awb, with respect to the names and positions of police employees that were included in an administrative report, was rejected because the risk that the police employees allegedly ran was insufficiently substantiated. Incidentally, the CBB did consider it plausible that knowledge of the name of the person who drew up the official report would result in a violation of the interest of respect for the privacy of this official (ECLI:NL:CBB:2022:795, r.o. 11.1 (4)). It is unclear whether any further substantiation had been provided in this regard. Furthermore, we refer to this earlier blog (5) following the rulings ECLI:NL:RBOVE:2020:2919 (6) and ECLI:NLRBROT:2018:7943 (7).
In this context, it is pertinent to point to a decision of the Division of 23 February 2022 (ECLI:NL:RVS:2022:582 (8)). In the case that led to the aforementioned ruling, the college had submitted pending appeal documents to the court in order to refute the appellant's appeal that there was a violation of the principle of equality. This concerned other, anonymized enforcement decisions. The appellant argued that the college should have invoked Section 8:29(1) of the Awb to do so. However, the Division ruled that this was not necessary because the District Court had also not been able to take cognizance of the anonymized personal data of the third parties who had been written to and that it was sufficiently clear from the anonymized documents that the Board was also taking enforcement action in similar cases. From this it seems (tentatively) possible to infer that if the documents are not case-related, the administrative body could indeed proceed to anonymize personal data. There is no obligation to submit documents other than those related to the case, and since by submitting anonymized documents the grounds for appeal can also be refuted, it is not necessary to process the personal data.
Therefore, the answer is that the AVG does not require anonymization of personal data of the submitters of documents relating to the case. Only in special circumstances can the confidentiality of personal data of data subjects be considered justified under Article 8:29 of the Awb. It may be different for non-case-related documents.
For questions, please contact Anke van de Laar (9), Groucho Marcus (10) or one of our other specialists from the Government Team (11). They will be happy to assist you.
(1) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:CBB:2022:794
(2) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:CBB:2022:795
(3) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RVS:2020:1507
(4) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:CBB:2022:795
(5) https://www.lagrogeelkerken.nl/actueel/verplicht-de-avg-tot-het-anonimiseren-van-persoonsgegevens-in-processtukken/
(6) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBOVE:2020:2919
(7) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBROT:2018:7943
(8) https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RVS:2022:582
(9) https://www.lagrogeelkerken.nl/medewerker/anke-van-de-laar/
(10) https://www.lagrogeelkerken.nl/medewerker/groucho-marcus/
(11) https://www.lagrogeelkerken.nl/specialisaties/overheid/
