unknown data subject (complainant before the DSB) – Court Ruling (Austria, 2021)

The data subject is a retired employee of the municipality of Innsbruck. According to the data subject, the municipality had unlawfully disclosed the data subject's data in the course of a court procedure, inter alia by sharing them with an attorney which represented the municipality. The data subject lodged a complaint with the Austrian Data Protection Authority (Datenschutzbehörde - DSB). The municipality argued before the DSB that the disclosure of the data subject's data to the attorney had been necessary for the exercise of legal claims and therefore for the purposes of the legitimate interests under Article 6(1)(f) GDPR. The data subject was heard on this statement and filed a submission, arguing that Article 6(1)(f) GDPR does not apply on the municipality as it qualifies as a public authority. The DSB invited the municipality to submit a statement on this reply. The municipality filed a statement (mostly repeating their previous arguments) which was in turn again provided to the data subject who issued yet another submission (also mostly repeating their arguments). In September 2019, the DSB issued its decision, rejecting the complaint. In essence, the DSB (for unknown reasons) did not assess the case under Article 6 and 9 GDPR but held that the disclosure of data under § 1 Austrian Data Protection Act (DSG) was lawful. In particular, Austrian law allowed for parties to be represented by an attorney, which included the sharing of personal data. The data subject filed an appeal with the Federal Administrative Court (Bundesverwaltungsgericht - BVwG). The BVwG did not issue a decision on the merits of the case but remitted it to the DSB, ordering it to establish the facts of the case properly. It held that the DSB failed to assess which personal data of the data subject had actually been shared with the attorney. Furthermore, the Court pointed out that the DSB had also failed to establish when and how the respective data were shared with the attorney. In particular, the BVwG criticized that the DSB merely invited the parties to exchange submissions but took no further steps to objectively establish the facts of the case. Lastly, the BVwG held that the DSB failed to take into account Article 6(1)(e) and Article 9(2)(f) GDPR in their legal assessment but merely held that § 1 DSG had not been violated. The DSB will now have to follow the BVwG's orders, establish the facts of the case and assess it under Article 6 and 9 GDPR.