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04.02.2021 | KPMG Law Insights

Entitlement of the examinee to a free copy of the corrected examination examinations

Entitlement of the examinee to a free copy of the corrected examination examinations

In a nutshell

In its ruling of April 27, 2020 (Ref.: 20 K 6392/18), the VG Gelsenkirchen ruled that a graduate of the Second State Law Examination has a claim against the North Rhine-Westphalia State Judicial Examination Office to be provided with a free copy of his corrected exam exams. This claim follows from Art. 15 para. 3 EU General Data Protection Regulation (GDPR). In any case, the GDPR is applicable to this case in North Rhine-Westphalia accordingly. Older (state) statutory regulations on the right of graduates to inspect examinations did not in principle limit this right.

Background

The plaintiff had passed the Second State Examination in Law in North Rhine-Westphalia. He then demanded that the Judicial Examination Office send him a free copy of his corrected written exam papers. The examination office then sent him the requested copies, but also charged him EUR 69.70 for them. The plaintiff wanted to do this by invoking the right to a copy of data free of charge under Art. 15 para. 3 GDPR will not tolerate.

Decision

The VG Gelsenkirchen ruled in favor of the plaintiff. In doing so, it initially left open the question of whether the GDPR is an EU regulation within the meaning of Art. 288 para. 2 TFEU is also directly applicable in this case. The defendant had objected that the activities of the State Judicial Examination Office did not fall within the scope of application of Union law and, therefore, the material scope of application under Art. 2 para. 2 let. a GDPR remains closed. Since § 5 para. 8 Data Protection Act of North Rhine-Westphalia (DSG NRW), however, declares the GDPR to be applicable mutatis mutandis where it does not apply directly, but where more specific provisions do not exist either, the applicability for this case was undoubtedly to be affirmed. This is because there was no more specific provision for this case.

The court affirmed the requirements of Art. 15 para. 3 GDPR, in particular the existence of processing of personal data by the State Judicial Review Office. Here, the court followed the ECJ, according to whose case law written answers to examination questions and the comments of the correctors are personal data within the meaning of Art. 4 No. 1 GDPR. Accordingly, written examinations archived in paper files are personal data collected in a file system within the meaning of Art. 4 No. 6 DSGVO. The GDPR regulates data protection in a technology-neutral way. Automatic data processing is therefore not necessary.

Moreover, the VG did not see any regulations that could limit the right to copy data free of charge. A restriction of this right is in principle possible under Art. 23 GDPR, albeit only under certain conditions. Here, the defendant first invoked Section 56 para. 1 in connection with. § 23 para. 2 NRW Lawyers’ Training Act (JAG NRW). Afterwards, the examinee must be allowed to inspect his examination papers, including the examiners’ reports. In the opinion of the court, however, this provision does not limit the right to a free copy of the data. Rather, it is in free competition with the claim under Art. 15 Para. 3 GDPR. This free competition of claims basically allows claims to exist side by side and without interaction. Only if a law conclusively regulates the rights of the data subjects is recourse to general rules excluded. The mere existence of a sector-specific (as in this case §§ 56, 23 JAG NRW) or higher-ranking regulation does not necessarily mean that it is conclusive. This also and especially applies with regard to data protection rights, which should expand the protection of personality with regard to the dangers threatening data processing and not restrict already existing rights (Recital 11 to the GDPR speaks with regard to the objective of the regulation of a strengthening of the rights of the data subject and a tightening of the obligations of the data controllers [Hervorhebungen durch den Verf.]).

Nor were the provisions to be interpreted as meaning Art. 15 para. 3 GDPR limit. Neither the wording nor the system or the body of law necessarily allowed the conclusion that the receipt of a copy by § 23 para. 2 JAG NRW should be excluded. Thus, neither the wording of Section 23 para. 2 JAG NRW states that “only” inspection would be permissible, nor is there any other place in the law where a prohibition on the release of copies can be inferred. Also, the different regulatory content of the two claim norms speaks for the fact that the right of inspection of Section 23 para. 2 JAG NRW in addition to the claim under Art. 15 para. 3 GDPR. The right of inspection refers to an inspection of the original documents, whereas the right to a copy only provides access to a reproduction. The fact that the right to information or the right to receive a copy on the one hand and the right to inspect original documents on the other hand are therefore different and complementary claims – all the more so from the perspective of data protection law – is already clear from the earlier provision in Section 34 (1) of the German Data Protection Act. 9 BDSG a.F. has become apparent. According to this, the person concerned was additionally to be granted the possibility of an inspection “on site” free of charge if the information was exceptionally chargeable. Finally, the actual administrative practice of the State Judicial Examination Office confirms this interpretation insofar as copies have actually been made and made available by mail at the request of an examinee up to now.

However, no provision is apparent that specifically restricts the characteristic of gratuitousness of the data copy. The § 23 para. 2 JAG NRW itself contains – unlike, for example, § 120 para. 7 p. 2 School Act NRW or § 630g para. 2 S. 2 BGB – no express provision for reimbursement of expenses for the preparation of copies. In the case of the § 10 para. 1 No. 1 GebG NRW and § 124 JustG NRW are general provisions under fee law, according to which expenses for copies, transcripts and extracts are to be reimbursed in accordance with the tariff items referred to. They covered every official act in the course of which copies, transcripts and excerpts were prepared and did not specifically refer to the preparation of copies of exam examinations. If one were to interpret these provisions as a limitation of the right to a free copy under Art. 15 para. 3 and Art. 12 par. 5 p. 1 GDPR, the claim would always be excluded as a consequence. Therefore, if interpreted in conformity with Community law, these general provisions could already therefore not have a restrictive effect within the meaning of Article 23 GDPR with regard to gratuitousness.

However, even if one assumes that the provisions of the JAG or the law on fees do not affect the right to receive a copy free of charge under Art. 15 para. 3 GDPR, the further requirements of Art. 23 Par. 1 GDPR is not fulfilled. In particular, it was not established that a restriction to a right of inspection on the spot and the possibility of obtaining only copies subject to a charge served to secure one or more of the public objectives referred to in subparagraphs (a) to (j). The exhaustive list of exceptions mentioned there makes it clear that the Member States may not impose any restrictions going beyond this or that restrictions going beyond this are inadmissible.

In particular, a restriction to a right of inspection on the spot and the possibility of obtaining only chargeable copies is not necessary for the “protection of other important objectives of general public interest of the Union or of a Member State” within the meaning of Article 23 (1). 1 Bst. e GDPR. This provision, he said, applies primarily to areas of public life that are necessary for existence. The rule examples of important economic and financial interests did not include these interests as such, but the legal interests behind them, which served to finance the policies of a Member State or the EU. Therefore, not every interest connected with the financing of politics can in itself bear a restriction of the transparency requirement. In individual cases, the state’s interest must be weighed against the data subject’s interest under data protection law.

Against this background, the exclusion of free data copies does not serve any important objective that outweighs the plaintiff’s interest under data protection law.

A possible impending cost burden for the North Rhine-Westphalian state budget could not, as a purely financial concern, outweigh the plaintiff’s right to a free copy of the data. This is because the cost burden as a requirement for additional financial expenditure is deliberately imposed on the responsible party by the GDPR. In the case of public authorities that process personal data of many data subjects, the budgetary legislator must therefore ensure that the data protection rights, which the legislator intended to be free of charge, can also be fulfilled. If, on the other hand, it were possible to exclude a restriction of gratuitousness solely on the basis of the argument of the cost burden, Art. 15 para. 3 and Art. 12 par. 5 p. 1 GDPR empty. Moreover, a serious threat to the state or judicial budgets from claims for free copies was not apparent.

Also, a threat to the functioning of the State Judicial Review Board through a mass claim to the right under Article 15 para. 3 GDPR does not exist. Even in the past, the State Judicial Review Office had to maintain staff to coordinate inspection appointments, to carry them out on site, and to make, send, and settle the requested copies for which a fee had to be paid. If in the future more applications under Art. 15 para. 3 GDPR, in return, correspondingly fewer requests for on-site inspection can be expected; in addition, the time and effort required to prepare the statement of account for the copies will be eliminated. The VG assumed that applications would mainly be made by e-mail and that the examinees would agree to the sending of a PDF document. The necessary adaptation measures to this procedure would be expected from the legislator. In the course of the generally developing digitalization, the authorities as well as the courts would have to be prepared to provide copying and, above all, scanning devices as well as the necessary personnel.

What can the reader take away?

According to this decision of the VG Gelsenkirchen, claims for free copies under the GDPR can also be asserted in addition to Member State laws, depending on the exact claim objective pursued by the claimant (free claim competition). This legal interpretation can have an impact on various constellations in which the “traditional” type of data access (e.g. inspection of paper files) is regulated by law, but does not include a free claim to the surrender of copies. Member State laws on the type and manner of data access do not exclude the new rights under the GDPR to a free copy of data without further ado. This applies in particular also if the authority refers to too large financial expenditure or an overwhelming work overloading by the production and transmission of the copies. After the Gelsenkirchen Administrative Court allowed the appeal against the very detailed reasoned judgment due to its fundamental importance, however, the final outcome of the proceedings remains to be seen. The appeal proceedings are being conducted under file number 16 A 1582/20 at the OVG North Rhine-Westphalia.

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