Dutch Minister of Social Affairs and Employment – Court Ruling (Netherlands, 2023)

The Plaintiff submitted an application for the disclosure of reports on incidents involving biological agents to the controller, the Dutch Ministry of Social Affairs and Employment. On 6 December 2021, the defendant partially upheld the claim but only disclosed some information and withheld parts of the information in the eight documents submitted. In particular certain personal data and environmental information. The controller withheld data because the personal data concerned data relating to the health of the data subjects, which, in combination with information from other sources, made the data subjects identifiable. The reason for refusal to disclose was founded on [https://wetten.overheid.nl/BWBR0005252/2018-07-28 Articles 10 and 11 of the Dutch Government Information Act (Wob)], which says that information in the hands of Public authorities is generally public, except if it is contrary to overriding interest, in the sense of Article 9(1) GDPR. Health data, in particular, can constitute a particularly serious violation of fundamental rights, such as privacy rights, as Article 9(1) GDPR states. The controller also conceded that personal data (information on biological agents) was excluded from the disclosure, in line with the European Directive on Public Access to Environmental Information 2003/4/EC. The directive guarantees public access to environmental information held by or for public authorities, both upon request and through active dissemination. This was further implemented in [https://wetten.overheid.nl/BWBR0005252/2018-07-28 Article 10(4) Wob], which provides for an exemption for the publication of personal data if it concerns "environmental information on emissions into the environment”. However, according to the controller's opinion, biological agents are not emissions, and, therefore, they do not fall under the definition of "environmental information". The Court held the hearing on the matter on 7 August 2023, and its decision followed on 18 September 2023. The Court declared the plaintiff's claim well-founded. Specifically, the Court found that the controller had not sufficiently justified why certain information was withheld, in particular with regard to sensitive personal data and environmental information on emissions. On the one hand, the Court noted that the controller rightfully withheld the information of Documents 1, 4 and 5 as they would constitute a breach of [https://wetten.overheid.nl/BWBR0005252/2018-07-28 Article 10(1)(d) Wob] and consequently of Article 9 GDPR. The personal data in the Documents concerned data relating to the health of the data subjects which, in combination with information from other sources, made the data subjects identifiable. On the other hand, with regard to Documents 2, 3, 7 and 8, the Court found that the controller failed to give sufficient reasons as to why the data was sensitive personal data or why the disclosure would affect the privacy of data subjects. Additionally, the Court stated that the controller did not deliver sufficient reasons as to why no environmental information was provided. Citing [https://wetten.overheid.nl/BWBR0005252/2018-07-28 Article 10(4) Wob], which provides for an exemption for the publication of personal data if it concerns "environmental information on emissions into the environment", the Court emphasised that the definition is derived from the European Directive on public access to environmental information 2003/4/EC. According to European established case-law, the term has to be defined broadly. Thus, the Court concluded that the biological agents could be defined as emissions and, consequently, be considered environmental information. Hence, the controller did not sufficiently explain whether the withheld information contained environmental information for the exemption to apply. In conclusion, the Court annulled the contested decision and ordered the controller to rectify the situation within six weeks of this decision, taking into account the Court's findings.