VERDICT
In the administrative law case
xxx,
– Plaintiff –
– Appellant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
State of Baden-Württemberg,
represented by the State Criminal Police Office of Baden-Württemberg,
represented by the President,
Taubenheimstraße 85, 70372 Stuttgart,
– Defendant –
– Respondent on Appeal –
for information
The 1st Senate of the Administrative Court of Baden-Württemberg, composed of the President of the Administrative Court of Baden-Württemberg xxx, Judge of the Administrative Court of Baden-Württemberg xxx and Judge of the Administrative Court of Baden-Württemberg xxx, without oral proceedings, has decided
on June 9, 2022
recognized as rightful:
Upon the plaintiff's appeal, the judgment of the Freiburg Administrative Court of December 23, 2020 – 8 K 6345/18 – is amended insofar as it dismissed the action.
The appeal decision of the State Criminal Police Office of Baden-Württemberg dated September 24, 2020, is overturned. The remainder of the action is dismissed.
The defendant shall bear the costs of the appeal proceedings, and the plaintiff and the defendant shall each bear half of the costs of the proceedings at first instance.
The appeal is not admitted.
FACTS
In the appeal proceedings, the plaintiff is (still) seeking the isolated annulment of an objection decision.
On August 29, 2017, the plaintiff requested information from the State Criminal Police Office of Baden-Württemberg (hereinafter: LKA) regarding data stored about him in electronic data collection and processing systems. By decision dated December 5, 2017, the LKA provided the plaintiff with information on twelve entries in the police information system (POLAS BW) and refused to provide further information, arguing that disclosing this information could compromise police knowledge and thus jeopardize future police investigations. Insofar as the decision refused to provide further information, the plaintiff filed an objection on January 8, 2018.
On November 12, 2018, the plaintiff filed an action for failure to act, asserting the defendant's obligation to make a decision on his objection, or alternatively, to provide complete information.
The State Criminal Police Office (LKA) informed the plaintiff by letter dated July 12, 2019, that the objection proceedings were being discontinued because they had become moot after the data stored concerning him was deleted on March 25, 2019, due to the cessation of the legal basis for its storage. The plaintiff objected to this mootness, arguing that his request concerned access to, and not the deletion of, the data.
By decision dated September 24, 2020, the State Criminal Police Office (LKA) rejected the plaintiff's objection (point 1), ordered the plaintiff to bear the costs of the objection proceedings (point 2), and set a fee of €253.29 (point 3). The authority stated that the undisclosed data storage concerned the plaintiff's wanted notice in POLAS BW with the following content:
"Notification as 'left-wing violent offender'
Purpose: Control, insofar as permitted under police law
Reason: Left-wing violent offender (prevention of danger)
Offense: Assembly Act
Date of submission: 20.04.2012
Date of deletion: 10.04.2020"
The withheld information was lawful pursuant to Section 45 of the Police Act in conjunction with Section 21 Paragraph 5 of the State Data Protection Act (old version). This was because it was a covert police measure, the success of which would have been jeopardized if it had become known to the plaintiff.
The plaintiff then declared the application for an injunction settled and requested that
- to revoke the decision on the objection insofar as it rejects the objection and sets fees,
- to establish that the failure to disclose the storage in the police information system POLAS BW:
"Notification as 'left-wing violent offender'
Purpose: Control, insofar as permitted under police law
Reason: Left-wing violent offender (prevention of danger)
Offense: Assembly Act
Date of submission: 20.04.2012
Date of deletion: 10.04.2020"
was unlawful.
The Administrative Court, in its judgment of December 23, 2020, discontinued the proceedings insofar as the parties had unanimously declared the legal dispute settled and dismissed the action in all other respects. It based its decision, inter alia, on the grounds that the action for annulment of the appeal decision of September 24, 2020, was inadmissible insofar as the plaintiff challenged the rejection of his appeal, since the appeal decision did not constitute an additional grievance compared to the original decision. Insofar as the action challenged the assessed appeal fee, it was admissible but unfounded. The assessment of the fee was not subject to any legal objections. The legality of levying a fee requires only the performance of a valid official act – in this case, the issuance of the appeal decision; the legality of the official act itself – in this case, the rejection of the appeal decision as inadmissible – is irrelevant.
Upon the plaintiff's application, the Senate, by decision of 11 October 2021 – 1 S 323/21 – admitted the appeal against the judgment of the Administrative Court insofar as the action for the annulment of the objection decision of the LKA Baden-Württemberg of 24 September 2020 was dismissed.
The plaintiff filed his appeal on November 8, 2021, and referred to the grounds for his application for leave to appeal dated February 24, 2021, in which he argued that the contested decision on the objection was, in substance, a remedial decision due to the information provided, so that he could not be ordered to pay the costs of the objection proceedings.
The plaintiff requests – verbatim –,
to amend the judgment of the Freiburg Administrative Court of 23 December 2020 and to revoke the decision on the objection of 24 September 2020, insofar as it rejects the objection of 8 January 2018 against the decision of 5 December 2017 and sets fees.
The defendant requests – verbatim –,
1. to dismiss the appeal regarding the isolated challenge to the objection decision concerning the data stored in the police information systems and which has since been deleted and
2. to dismiss the appeal regarding the isolated challenge to the disclosure of the deleted data.
He argues as follows: The separate appeal against the decision on the objection is unfounded. The subject of the review in the objection proceedings is whether the requested information was lawfully refused. The right to information under Section 45 of the Police Act (PolG aFiVm) in conjunction with Section 21 Paragraph 5 of the State Data Protection Act (LDSG aF) was directed at the personal data "stored" in the police information systems. Since the information was rightfully refused, the objection had to be dismissed; the plaintiff must bear the costs. The separate appeal against the disclosure of the data deleted from POLAS BW at the time of the decision on the objection is inadmissible, as there is no adverse administrative act in this respect. Contrary to the plaintiff's view, the disclosure of the deleted data does not make the decision on the objection a remedial decision. Rather, the subject matter of the proceedings changed with the deletion of the data. The original subject of the application was the disclosure of the stored, not the deleted, data. The provision of information about the deleted data is a means by which the appeals authority can take action similar to self-entry pursuant to Section 79 of the Administrative Court Procedure Act (VwGO), which does not alter the original decision and does not impose any additional or independent burden on the plaintiff.
For further details of the facts and the legal arguments, reference is made to the case file and the attached procedural file of the Administrative Court – 8 K 6345/18.
REASONS FOR DECISION
The appeal, which the Senate decides without oral proceedings with the consent of the parties (see Section 101 Paragraph 2 of the Administrative Court Procedure Act), is successful. It is admissible (I.) and well-founded (II.).
I. The appeal is admissible after being granted by the Senate and is also admissible in all other respects. In particular, it meets the statutory requirements for substantiation.
Pursuant to Section 124a Paragraph 6 Sentence 3 in conjunction with Paragraph 3 Sentence 4 of the Code of Administrative Court Procedure (VwGO), the statement of grounds for appeal must contain a specific request as well as the grounds for the appeal, which must be stated in detail. The statement of grounds for appeal must therefore make clear the legal or factual reasons on which the appellant believes the contested judgment to be incorrect and must be amended (see Senate, Judgment of March 28, 2022 – 1 S 1265/21 –, juris para. 31; Federal Administrative Court, Decision of April 12, 2021 – 1 B 18.21 –, juris para. 5; NK-VwGO/Max-Jürgen Seibert, 5th ed. 2018, VwGO Section 124a para. 107). In individual cases, the grounds for appeal may also be set out by referring to the submissions made in the admission proceedings, provided that these submissions themselves meet the requirements for a statement of grounds of appeal (see VGH Baden-Württemberg, Decision of 17 February 2010 – A 11 S 895/08 –, juris para. 23; BVerwG, Decision of 30 January 2009 – 5 B 44.08 –, juris para. 2; OVG NRW, Decision of 27 October 1998 – 10 A 3602/98 –, juris para. 17; Eyermann/Happ, 15th ed. 2019, VwGO § 124a para. 99; NK-VwGO/Max-Jürgen Seibert, loc. cit., para. 124). SchochKoVwGO/Rudisile, 41st edition July 2021, VwGO § 124a Rn. 148).
This is the case here. By clearly referring in his statement of grounds of appeal of November 8, 2021, to the statement of grounds for the application for leave to appeal submitted to the Senate in proceedings 1 S 322/21 by his legal representative of February 24, 2021, the plaintiff makes it sufficiently clear that he raises serious doubts as to the correctness of the Administrative Court's decision insofar as the latter did not consider the contested decision on the objection to be a remedial decision and denied that the objection was being rejected.
II. The appeal is well-founded. The Administrative Court wrongly dismissed the action, insofar as it is still the subject of the appeal proceedings. Upon proper interpretation of the application, the action is (1.) admissible (2.) and (3.) well-founded.
1. Taking into account the plaintiff's overall submissions, in particular the interest expressed in the brief of November 17, 2020 in the proceedings at first instance and in the application pursuant to Section 162 Paragraph 2 Sentence 2 of the Code of Administrative Court Procedure (VwGO) in the appeal proceedings, in a manner appropriate to the plaintiff's claim, and uncontested by the plaintiff's legal representative in the brief of January 18, 2022, interpreting the claim as a permissible application beyond its literal wording (cf. Section 88 VwGO) to mean that the plaintiff seeks the judicial annulment of all provisions in the operative part of the decision on the objection of September 24, 2020, which are detrimental to him, including the basic decision on costs in point 2.
However, contrary to the defendant's assumption in the appeal response, the action is not aimed at challenging the notification contained in the reasoning of the contested objection decision regarding the initially undisclosed further storage of data on the plaintiff in POLAS BW; it can be inferred from the plaintiff's application and reasoning that the plaintiff – correctly – sees neither a regulation nor a grievance in this respect.
2. The action, as thus understood, is admissible. In particular, it is permissible as an isolated action challenging the decision on the objection.
a) According to Section 79 Paragraph 2 Sentence 1 of the Administrative Court Procedure Act (VwGO), the decision on the objection can be the sole subject of an action for annulment if and insofar as it contains an additional independent grievance compared to the original administrative act.
Such an additional independent grievance presupposes a further material burden on the plaintiff, which is regularly established by the provisions of the operative part of the decision on the objection (Eyermann/Happ, 15th ed. 2019, VwGO § 79 para. 20; NK-VwGO/Michael Brenner, 5th ed. 2018, VwGO § 79 para. 38). This also includes the ancillary decisions of the decision on the objection concerning costs (Eyermann/Happ, 15th ed. 2019, VwGO § 79 para. 22; Wysk/Buchheister, 3rd ed. 2020, VwGO § 79 para. 7). Furthermore, an additional independent grievance of the objection decision may lie in the rejection of the objection itself if this creates the incorrect impression that the original decision has become final and binding (see VGH Baden-Württemberg, Judgment of 17 July 1990 – 9 S 707/89 –, juris para. 48; BVerwG, Judgment of 20 January 1989 – 8 C 30.87 –, juris para. 10; Judgment of 12 April 2001 – 2 C 10/00 –, juris para. 18; OVG Berlin-Brandenburg, Judgment of 31 March 2017 – OVG 6 B 9.16 –, juris para. 17; OVG Mecklenburg-Vorpommern, Decision of 11 July 2017). – 1 LB 92/15 –, juris para. 13; BeckOK VwGO/Möstl, 60th ed. 1.10.2021, VwGO § 79 para. 22; SchochKoVwGO/Pietzcker, 41st ed. July 2021, VwGO § 79 para. 13; each for the occurrence of the completion of the original decision before the issuance of the decision on the objection), or the decision on the objection does not take into account a relevant change in the factual and legal situation after the issuance of the original administrative act (cf. BVerwG, Judgment of 06.04.1955 – VC 76.54 –, juris para. 22 ff.; HessVGH, Judgment of 23.02.1988 – 9 UE 1965/85 –, NVwZ 1988, 743 <744>; Funke-Kaiser, in: Bader/Funke-Kaiser/Stuhlfauth/v. Albedyll, VwGO, 8th ed. 2021, § 79 para. 14; BeckOK VwGO/Möstl, 60th ed. 1.10.2021, VwGO § 79 para. 22; NK-VwGO/Michael Brenner, 5th ed. 2018, VwGO § 79 para. 44; W.-R. Schenke, in: Kopp/Schenke, VwGO, 27th ed. 2021, § 79 para. 11; SchochKoVwGO/Pietzcker, 41st supplement July 2021, VwGO § 79 para. 13).
According to Section 42 Paragraph 2 of the German Code of Administrative Procedure (VwGO), an isolated action for annulment against the decision on the objection is admissible if the plaintiff's submissions suggest the possibility of an additional, independent grievance in their own rights (see Schenke, in: Kopp/Schenke, VwGO, 27th edition 2021, Section 79, marginal note 12). Prior conduct of preliminary proceedings pursuant to Section 68 Paragraph 1 Sentence 1 VwGO is not required (see Federal Administrative Court, judgment of August 12, 2014 – 1 C 2.14 –, juris marginal note 12).
b) The plaintiff's action for the separate annulment of the objection decision of September 24, 2020, is therefore admissible. According to his submissions, it is not impossible that the request, pursued in the objection proceedings, for the initially refused information about the further data stored concerning him, had been granted at the time the objection decision was issued. Therefore, the rejection of his objection (point 1) was detrimental to him because it created the incorrect impression that the partial refusal of the requested information in the LKA's decision of December 5, 2017, had become legally binding.
2. The action is also well-founded. The objection decision of the LKA dated September 24, 2020 is unlawful and infringes the plaintiff's rights (see Section 113 Paragraph 1 Sentence 1 VwGO).
a) Pursuant to Section 73 Paragraph 1 Sentence 1 of the Administrative Court Procedure Act (VwGO), a decision on the objection is issued if the authority does not grant the objection. This is not the case here. The State Criminal Police Office (LKA) granted the plaintiff's request for information at the relevant time for issuing the decision on the objection (aa). However, even in the case initially assumed by the defendant that the objection proceedings had been resolved, the defendant should not have issued a decision on the objection (bb).
aa) The defendant provided the plaintiff with the requested information.
The legal basis for the plaintiff's asserted right to information was, at the relevant time of the official decision on the objection, Section 45 of the Police Act (PolG) in the version applicable until January 16, 2021 (old version). According to this provision, the police enforcement service, pursuant to Section 21 of the State Data Protection Act (LDSG), which, at the time the objection decision was issued, was applicable in accordance with Section 30 Paragraph 1 LDSG in its version applicable on June 20, 2018 (old version), provides information about the personal data it has stored. According to the wording and the purpose of the statutory provision, the right to information is limited to data that is still stored and does not extend to data that has already been deleted (see Senate, Judgment of 26 May 1992 – 1 S 668/90 –, juris para. 32 et seq.; BeckOK PolR BW/Hermesmeier/Brenz, 20th ed. 1 October 2020, BWPolG § 45 para. 3; Ruder, PolR BW, 8th ed. 2015, para. 596, 601). The data subject also has a right to information confirming that no data about him or her is stored (so-called "negative information"; cf. BeckOK PolR BW/Hermesmeier/Brenz, 20th ed. 1.10.2020, BWPolG § 45 Rn. 3; HK-IZR BW/Walter Krämer, 1st ed. 2017, LDSG § 21 Rn. 8; NK-BDSG/Mallmann BDSG, 7th ed. 2011, § 19 Rn. 23; Weichert, NVwZ 2007, p. 1004 ff. with further references).
It can therefore remain open whether the request for information pursued by the plaintiff in the objection proceedings was already satisfied by the LKA's (State Criminal Police Office) statement in its letter of July 12, 2019, that no (further) data on the plaintiff was (anymore) stored, as it had since been deleted (1), or only by the mention of the plaintiff's initially undisclosed warrant in POLAS BW in the grounds for the objection decision of September 24, 2020 (2). In any case, the LKA has remedied the plaintiff's objection; whether it was obligated to do so can remain open (3).
(1) The plaintiff's claim for information regarding further data concerning him "stored in electronic data collection and processing systems" (see request for information dated August 29, 2017) – which, as can be seen from his brief dated August 6, 2019, in which he opposed the conclusion of the objection proceedings, was not pursued in the sense of an inadmissible declaratory judgment action (see SchochKoVwGO/Riese, 41st supplement July 2021, VwGO § 113 para. 148; NK-VwGO/Heinrich Amadeus Wolff, 5th ed. 2018, VwGO § 113 para. 318; each with further references) – and which, due to the recognized possibility of a negative response, resulted in the deletion of the stored data, was pursued further. The requirement concerning the plaintiff's person had not yet been fulfilled – was met by the letter of July 12, 2019, in which the LKA (State Criminal Police Office) informed the public that the data relating to the plaintiff had been deleted due to the cessation of the storage requirements, in the form of a (supplementary) negative response, which proved to be accurate at the relevant time for assessing the legality of the official decision on the pursued request for information, since the plaintiff's personal data was no longer stored in the electronic systems.
(2) If, beyond its literal wording, the plaintiff's request for information of 29 August 2017 is also considered to include the underlying documents retained by the State Criminal Police Office (LKA) for the purpose of judicial review after the deletion of the data in the electronic data collection and processing systems, the request maintained in the objection proceedings, which the LKA was not prevented from deciding by its informal notification of 12 July 2019, which did not lead to a legally binding conclusion of the objection proceedings, has been granted by the notification of the (deleted) further storage of the plaintiff's data in POLAS BW in the grounds of the objection decision of 20 September 2020.
(3) The State Criminal Police Office (LKA) has thus remedied the plaintiff's objection in any case. Whether it was obligated to do so can therefore remain open. In particular, it is unnecessary to decide whether the police authority is obligated to continue to retain personal data stored at the time of a request for information, despite the intervening cessation of the conditions for storage, as long as no final decision has been reached on the request for information, and whether the data subject has a right to information (at the latest) at that point (left open by the Senate, judgment of 26 May 1992 – 1 S 668/90 –, juris para. 33).
bb) Moreover, the State Criminal Police Office (LKA) should not have issued the decision on the objection even according to its own (then) opinion. An objection procedure whose subject matter has become moot must be discontinued. If the objector insists on a decision from the appeals authority, a formal discontinuance order is issued (see BeckOK VwGO/Hüttenbrink, 60th ed. 1.4.2020, VwGO § 73 para. 12; Eyermann/Rennert, 15th ed. 2019, VwGO § 73 para. 11; NK-VwGO/Max-Emanuel Geis, 5th ed. 2018, VwGO § 73 para. 39; contra SchochKoVwGO/Porsch, 41st supplement July 2021, VwGO § 73 para. 42: informal notification). The decision on the objection, issued despite the matter having been resolved, gives the incorrect impression that the resolved original administrative act has become legally binding and must therefore be revoked (see the evidence under II. 2. a)).
b) With the reversal of the rejection of the plaintiff's objection by way of an objection decision, the prerequisites for the cost decision burdening the plaintiff (point 2) pursuant to Section 73 Paragraph 3 Sentence 3 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 80 Paragraph 1 Sentence 3 First Half-Sentence of the State Administrative Procedure Act (LVwVfG) and the related determination of an objection fee (point 3) cease to exist.
III. The decision on costs is based on Section 154 Paragraph 1 and Section 155 Paragraph 1 Sentence 1 of the Administrative Court Procedure Act (VwGO).
IV. The appeal on points of law is not admissible, as the requirements of Section 132 Paragraph 2 of the Administrative Court Procedure Act are not met.
The following is information on legal remedies.
