Court case 2 K 98/20 – Court Ruling (Germany, 2022)

The plaintiff, a journalist, sought access to information in connection with the granting of "old-age compensation due to health problems" to former members of the Bundestag. He requested an anonymised or otherwise redacted overview of cases between 2000 and 2020 from the Bundestag, broken down by year and with information regarding whether they had been decided positively and negatively, as well as the number of cases since 2006 in which compensation had been paid out without their requirements being met. In addition, he requested an affirmation regarding the correctness and completeness of the information as well as access to all relevant administrative files. The German Bundestag rejected the plaintiff's applications on the grounds that access to information was contrary to the protection of personal data. It was highly likely that the applicant would be able to identify the persons concerned. This resulted from the fact that only a relatively small number of MPs left the German Bundestag prematurely. Since the career of individual MPs could be easily traced (e.g. by means of an internet search) the information and the files could be attributed to a narrowly defined group of persons, even if the documents were redacted. Insofar as the MPs were deceased, the disclosure would be contrary to the post-mortem right of personality. None of the persons concerned and none of the relatives of the deceased had declared their consent. The interest of the data subjects in secrecy outweighed the interest in information of the plaintiff, because the requested information was connected to the political mandate of the individuals concerned. In addition, it concerned sensitive health data. In three steps, the court held that the information concerning former members of the Bundestag is protected insofar as they are still alive. The court first established that the information concerning still living former members of the Bundestag constituted personal data. In accordance with Article 4(1) GDPR, an identifiable natural person is one who can be identified directly or indirectly, in particular by means of an association with an identifier such as a name. What is required is the possibility of establishing the identity of the data subject. In the context of determining whether a natural person is identifiable, account must be taken of all the means reasonably likely to be used by the controller or by any other person to identify the natural person, directly or indirectly (Recital 26 GDPR). In this light, the court held that the requested information constitutes personal data. The possibility that the living individuals concerned will be identified is not negligible. This applies irrespective of the fact that the plaintiff is only requesting information on the number of applications that have been decided, without naming names, and that the year of the decision does not necessarily correspond to the year of leaving the Bundestag. The group of persons potentially affected is limited which makes them identifiable. Second, the court held that the still living MPs' interest in secrecy outweighs the plaintiff's interest in information. According to Article 9(1) GDPR, the transmission of special categories of personal data, such as health data, is prohibited unless one of the conditions of Article 9(2) GDPR, such as explicit consent, is met. According to Article 4(15) GDPR, health data are personal data relating to the physical or mental health of a natural person from which information about his or her state of health emerges. Consequently, the information sought by the plaintiff concerns specially protected personal data as the data as to whether the Bundestag administration has given a positive or negative decision on an application pursuant to "old-age compensation due to health problems" contains an assessment by the Bundestag administration of the physical and/or mental state of health of the applicant. Furthermore, access to information was also precluded by § 5.2(1) of the German Freedom of Information Act. According to this provision, the applicant's interest in information does not prevail in the case of information from documents insofar as they are connected with a mandate of the third party (in this case, the Member of Parliament). Third, the court held that there are no grounds for exclusion for the information concerning deceased persons due to two reasons. Firstly, because natural persons within the meaning of Article 4(1) GDPR are only living persons (Recital 27 GDPR) the data concerning already deceased persons does not constitute personal data under the GDPR. Secondly, contrary to the arguments of the Bundestag, the post-mortem right of personality also does not prevent the disclosure of the concerned information. The deceased are not protected by the general right of personality under Article 2(1) in conjunction with Article 1(1) of the Basic Law as only living individuals are the bearers of this fundamental right. The protection of the post-mortem right of personality, also resulting from Article 1 (1) of the Basic Law, is an altogether separate right to the general right of personality. The post-mortem right of personality protects, on the one hand, a general right to respect, as well as, on the other hand, a right of the deceased to not be degraded or humiliated. Nevertheless, in the interpretation of the court, this right only protects against gross distortion, but not against mere questioning. In the present case, the disclosure would neither be connected with a degrading nor would it entail a gross distortion of the image of their life.