ECLI: NL: RBAMS: 2020: 6419

Authority

Court of Amsterdam

Date of judgment

10-12-2020

Date of publication

04-01-2021

Case number

AWB - 19 _ 4227

Jurisdictions

Administrative law

Special characteristics

First instance - multiple

Content indication

Wob request. Information about intercountry adoptions. Appeal well-founded. Respondent must carry out a further search and expand it to other government bodies, examples of which are mentioned in the Wob request. No data retention violation.

Locations

Rechtspraak.nl

Enriched pronunciation

Statement

COURT OF AMSTERDAM

Administrative law

case number: AMS 19/4227

judgment of the three-judge panel in the case between

[plaintiff], at [place name], plaintiff

(authorized person: [name]),

and

the Minister of Justice and Security, defendant

(delegates: [name], [name] and [name]).

Participated in the proceedings as a third party: [name], at [place name]

(authorized representative: [name]).

Process course

With a decision of 17 December 2018 (the primary decision), the respondent partially granted the claimant's request for disclosure of documents on the basis of the Government Information (Public Access) Act (Wob).

With a decision of 2 July 2019 (the contested decision), the defendant declared the plaintiff's objection to the primary decision to be well-founded and published ten more documents in part.

Plaintiff has appealed against the contested decision.

Respondent has lodged a statement of defense.

Plaintiff has given the court permission by letter dated September 13, 2019 to take cognizance of the undisclosed documents as referred to in Article

8:29, fifth paragraph, of the General Administrative Law Act (Awb).

The hearing took place on October 29, 2020 via a Skype connection.

Plaintiff appeared, assisted by her attorney. The defendant was represented by his attorneys. The third party and its agent did not appear, with notice.

Considerations

Wob request

1.1

In a letter dated 20 April 2018 to the Ministry of Security and Justice, Plaintiff has requested disclosure of documents relating, among other things, to the adoption organization [name] from the time of its establishment in 1977 to the present day (the Wob request).

1.2

In a letter dated 6 July 2018, the Plaintiff, at the Respondent's request, further delineated the request to documents relating to adoptions from [land] in the period 1984 to 1994 (the amended Wob request).

Decision

2.1

With the primary decision, the respondent partially granted the claimant's request and provided (partially) the 32 documents found. An inventory list is enclosed with the decision, stating per document what has been decided on the disclosure and the basis for that decision. The disclosure has been partially or completely refused in accordance with Article 10, first paragraph, opening words and under d, of the Wob (special personal data), Article 10, second paragraph, opening words and under e, of the Wob (privacy) or on the basis that (parts of) the documents fall outside the scope of the request.

2.2

During a new search during the objection procedure, the defendant found thirteen more documents. This concerns the documents [number] to [number]. An inventory list has been added to the contested decision, indicating per document what has been decided and on what basis. The disclosure has been partially or completely refused in accordance with Article 10, second paragraph, opening words and under e, (privacy), Article 10, second paragraph, opening words and under g (disproportionate advantage or disadvantage); Article 11, paragraph 1, of the Wob (internal consultation and personal policy views) or on the basis that (parts of) the documents fall outside the scope of the request.

Plaintiff's position

3. Plaintiff has argued, with reasons, that the contested decision was carelessly prepared and insufficiently motivated. Respondent interpreted the Wob request too narrowly. In her Wob request, the plaintiff has cited a number of examples of government bodies from which information could be requested, but the defendant has not acted on this. Plaintiff has further argued that the published documents refer to other documents that have not been made public. It has listed all relevant indications in support of its argument that the defendant should have more relevant documents in its possession per document, but the defendant has not responded to all indications. Respondent did not provide sufficient insight into how the investigation took place. Plaintiff decides, despite assurances, not an inventory list covering the entire archive of documents on adoptions in [country] and by [name]. It is established that the documents exist. Despite this, it does not appear that the defendant attempted to find the said documents. It cannot therefore be said that the defendant did everything reasonably possible to find the documents. If the ministry no longer has the documents, it has violated its data retention obligation. The respondent has a duty of care with regard to the management and security of information when it comes to privacy-sensitive information. This duty of care implies a duty of retention, especially when it is clear that certain information is legally relevant to a person. That is the case with Plaintiff. Plaintiff also submitted a Wob request to the Ministry of Foreign Affairs, on which she received a decision on 7 January 2020. This shows that this ministry holds a whole series of documents related to intercountry adoptions from [country]. 123 documents were made public, including documents related to a memorandum dated August 30, 1991, of which the plaintiff explicitly requested the defendant in the objection to disclose it. This has established that the defendant also carelessly carried out the search in the objection. The other documents published by the Ministry of Foreign Affairs contain indications that the defendant must have more documents that must still be made public. With regard to the refusal to disclose document [number], Plaintiff has disputed that it concerns personal policy views and that it concerns internal deliberation. Even if this were the case, Plaintiff considers it unlikely that the entire document would consist of personal policy views. Actual data is not included. Nor can it be seen why the defendant would be disproportionately disadvantaged by disclosure, according to plaintiff.

Legal framework

4. The court has included the legal framework in the appendix that forms part of this judgment.

Judgment by the court

Scope of the Wob request

5.1

The court considered that the Wob request and the amended Wob request should be read in conjunction. In the Wob request, Plaintiff requested information about intercountry adoptions. She wishes to obtain clarity about the administrative state of affairs in the Netherlands with regard to intercountry adoptions and about the possible role and the degree of knowledge of the Dutch state in this. In particular, it requested documents originating from or relating to the [name], but it did not limit the request to this organization. For example, in the Wob request under 4, the plaintiff asked to disclose all documents relating to communication or contact between the defendant and other government bodies, such as customs, the police, etc. the Councils for Child Protection and advisory committees that deal with intercountry adoptions from [country] and the admission of children to Dutch territory. Furthermore, Plaintiff has requested in the Wob request, insofar as relevant information is available at other government bodies, to make this request known there as well. At the request of the respondent, in the amended Wob request, the plaintiff has further specified the request and limited it to documents relating to intercountry adoptions from [country] in the period 1984 to 1994.

5.2

Niet in geschil is dat met de aanpassing daarvan door eiseres het Wob-verzoek is begrensd tot interlandelijke adopties uit [land] en tot de jaren 1984 tot en met 1994. Zij heeft de uitvraag echter niet beperkt tot alleen de [naam] . Verweerder heeft op de zitting verklaard zich bij de zoekslagen te hebben beperkt tot de eigen archieven en navraag te hebben gedaan bij het ministerie van Buitenlandse Zaken, de Raad voor de Kinderbescherming en het Openbaar Ministerie. De rechtbank stelt vast dat eiseres in het Wob-verzoek onder 4 meer overheidsorganen heeft genoemd dan verweerder heeft bevraagd. De rechtbank is, gelet op de bewoordingen en strekking van het Wob-verzoek, met eiseres van oordeel dat verweerder het Wob-verzoek te beperkt heeft opgevat. Dit leidt tot een gegrondverklaring van het beroep en tot vernietiging van het bestreden besluit voor zover daarin is vastgesteld dat met de verrichte zoekslagen aan het Wob-verzoek is voldaan. Verweerder dient een nadere zoekslag te verrichten en die - al dan niet door middel van doorzending van het Wob-verzoek - uit te breiden naar andere overheidsorganen waarvan eiseres voorbeelden in het Wob-verzoek heeft genoemd, namelijk de douane, de politie, de (lokale) Raden voor de Kinderbescherming en adviescommissies die zien op interlandelijke adopties van [land] en de toelating van de kinderen tot het Nederlands grondgebied. Op de zitting heeft eiseres ook nog onder meer de IND, de ambassade in [plaatsnaam] en [naam] genoemd waar volgens haar een zoekslag zou moeten worden verricht.

6. The court sees reason not to simply set aside the contested decision on the ground given under 5.2, but to assess the other grounds of appeal now for the benefit of possible further contact between the parties and further decision-making.

More documents?

7.1

If an administrative body states that after investigation it has become apparent that documents are no longer or no longer in its possession and such a communication does not appear implausible to the administrative judge, according to settled case law of the Administrative Jurisdiction Division of the Council of State, it is in principle up to the person requesting information to make it plausible that more and other documents than have been provided or have been refused with reasons, are still in the possession of that administrative body. 1

7.2

Plaintiff has argued that there are more documents that fall within the scope of the Wob request and she has put forward a large number of leads in both her notice of objection and in the notice of appeal. It has specified in detail for each published document which references to other relevant, undisclosed documents it contains. According to the plaintiff, the respondent has not discussed all points of reference in the defense. The court establishes that the respondent refers to the connecting factors mentioned by the plaintiff that belong to the documents [number], [number], [number], [number], [number], [number], [number] ([letter] and [letter] ) and [number] ([letter] and [letter]). The court is of the opinion that the plaintiff has made plausible that there are more relevant documents, using the connecting factors it has put forward, so that the defendant is obliged to go through every connecting factor. The general reasoning that the defendant searched and did not find these documents is insufficient for this. It is up to the respondent to include the documents referred to in the aforementioned connecting factors in the new search.

7.3

Respondent has taken the position that a number of documents in the summary of the connecting factors are unlikely to have existed (such as notes of telephone conversations and minutes of meetings) or that they have not been found due to the passage of time. This does not seem implausible to the court. The plaintiff's view that the defendant has not done everything reasonably possible to find those documents is therefore not followed by the court. Also taking into account the period to which the plaintiff's request relates, there are no indications that the defendant has violated his retention obligation.

Application of the grounds for refusal

8. With the plaintiff's permission, the court has taken cognizance of the documents submitted pursuant to Article 8:29 of the Awb.

Outside the scope of the request

9. Respondent has refused disclosure of the documents [number] to [number] and [number] in whole or in part on the ground that they fall entirely or partially outside the scope of the request. It appears from the primary decision that this also applies to a number of passages of the documents [number] and [number]. The court considers this as follows. For the documents [number], [number], [number], [number] and [number], the respondent has refused (partial) disclosure on the ground that they fall outside the scope of the request, because there are adoptions from countries other than [country]. After examining the documents, the court is of the opinion that the defendant has made a good decision. The documents [number] and [number] concern general information about adoption and not specifically about adoption from [country]. Document [number] also concerns information that does not specifically relate to adoption from [country] or information about adoption organizations other than [name]. For these documents, too, the defendant has refused disclosure on good grounds.

10. The court has also noticed that for some documents (for example document [number]) the basis 'outside the scope of the request' has been applied, but that this is not reflected in the decision-making nor in the inventory list. For the time being, the court sees no reason to attach consequences to this finding.

Special personal data (Article 10, first paragraph, opening words and under d)

11.1

In application of the ground for refusal of Article 10, first paragraph, opening words and under d, the disclosure of the documents [number], [number], [number], [number] and [number] has partially refused, because they contain details of persons information whose disclosure would infringe the privacy of these data subjects.

11.2

Plaintiff has argued that it does not concern the names of lower officials, but those of persons responsible for policy. These are important in order to assess 'how this period should be viewed', according to Plaintiff.

11.3

In the court's opinion, the documents contain personal data and data that can be traced back to individual data subjects. Partly in view of the reasons given, the defendant is of the opinion of the court that the importance of respect for privacy outweighs the importance of disclosure.

Respect for privacy (Article 10, second paragraph, opening words and under e)

12. The court will not discuss this ground for refusal, since Plaintiff has not put forward any grounds for appeal against the application of this ground for refusal.

Internal deliberation and personal policy views (Article 11, paragraph 1)

13.1

Document [number] is an official message from [name] to [name] of 8 November 1991. Respondent has refused disclosure of this document, among other things, in application of Article 11, first paragraph, of the Wob. It follows from Article 11 of the Wob that if there are internal documents that contain personal policy views, they will in principle not be made public. There is no room for weighing up interests, unless it concerns environmental information. This is not the case in this case. It follows from the history of the creation of Article 11 of the Wob that the internal character of a document is determined by the purpose with which it was drawn up. 2The person who prepared the document must have intended it to be for himself or for use by others in government. The official message was drawn up by the public prosecutor to inform the attorney general about the investigation and the intended settlement. The court is of the opinion that this constitutes a document for internal deliberation.

13.2

A personal policy view is understood to mean an opinion, proposal, recommendation or conclusion of one or more persons about an administrative matter and the arguments put forward by them (see article 1, opening words and under f, of the Wob). The official message was drawn up by the public prosecutor to inform the attorney general about the investigation and the intended settlement. The court does not follow the fact that the proposal for rounding off the issue to which the official message refers does not constitute a personal policy view.

13.3

Factual data are not personal policy views and can therefore in principle not be refused on the basis of Article 11, first paragraph, of the Wob. The court agrees with the respondent that it is not possible to separate the factual data included in the official message from the personal policy view because of close interrelationships.

13.4

The court is of the opinion that the defendant has already rightly refused disclosure of document 42 on the basis of Article 11, first paragraph, of the Wob. The court will therefore not discuss the second ground for refusal (Article 10, second paragraph, opening words and under g).

Conclusion

14. In view of what has been considered under 6.2, the appeal is well-founded and the court sets aside the contested decision. The court sees no reason to uphold the legal consequences of the contested decision or to provide for the case itself, because the defendant will first have to carry out a new search. In this search, the respondent must also provide the connecting factors associated with the documents [number], [number], [number], [number], [number], [number], [number] ([letter] and [letter]) and [ number] ([letter] and [letter]). The respondent will therefore have to take a new decision on the plaintiff's objection with due observance of this decision. The court sets a period of six weeks for this. The court sees no reason to impose a penalty, as the plaintiff has requested.

15. Because the court declares the appeal to be well-founded, the court determines that the defendant will reimburse the plaintiff for the court fee it has paid.

16. The court orders the defendant to pay the costs incurred by the plaintiff. On the basis of the Administrative Costs Decree, the court sets the costs at

€ 1,050 (1 point for submitting the notice of appeal and 1 point for appearing in court, with a value per point of € 525 and a weighting factor of 1). ).

Decision

The court:

- declares the appeal well-founded;

- annuls the contested decision;

- orders the respondent to take a new decision on the claimant's objection to the decision of 17 December 2018 within twelve weeks of the day on which this decision was sent, with due observance of this decision;

- orders the defendant to reimburse the plaintiff the paid court fee of € 174;

- orders the defendant to pay the plaintiff's legal costs up to an amount of

€ 1,050.

This statement was made by mr. SE Reichert, chairman, and mr. M. Greebe and

mr. FP Lauwaars, members, in the presence of mr. SM Koning, registrar . The decision was issued in public on

registrar

chairman

Copy sent to parties on:

Remedy

An appeal can be lodged against this decision with the Administrative Jurisdiction Division of the Council of State within six weeks of the date on which it was sent.

If an appeal has been lodged, a preliminary injunction may be lodged with the preliminary relief judge of the court of appeal.

Appendix

The Government Information (Public Access) Act (Wob)

Pursuant to Article 3, paragraph 1, anyone can submit a request for information contained in documents on an administrative matter to an administrative authority or an institution, service or company operating under the responsibility of an administrative authority.

The third paragraph of Article 3 provides that the applicant does not have to be interested in his request.

Pursuant to the fifth paragraph of Article 3, a request for information is granted with due observance of the provisions of Articles 10 and 11.

Pursuant to Article 10, first paragraph, opening words and under d, the provision of information will not take place insofar as this concerns personal data as referred to in Articles 9, 10 and 87 of the General Data Protection Regulation, unless the provision clearly does not infringe the personal data. makes privacy.

Pursuant to Section 10, subsection 2, the provision of information pursuant to this Act will not take place insofar as its importance does not outweigh the following interests:

(…)

e. respect for privacy;

(…).

Pursuant to Article 11, paragraph 1, in the event of a request for information from documents drawn up for internal deliberation, no information is provided about personal policy views contained therein.

Pursuant to Article 11, paragraph 2, information on personal policy views with a view to good and democratic administration can be provided in a form that cannot be traced back to individuals. If the person who has expressed or supported these views has consented to this, the information may be provided in a form that can be traced back to persons.

.