In late December 2019, the Court of The Hague (Netherlands) published a preliminary reference procedure (see here, in Dutch). The Court was asked to decide on the scope of the right of access under the GDPR.
The defendant in this case was a bailiff involved in the bankruptcy procedure. The individual who was target of the bankruptcy procedure requested access to his/her data and a copy of several e-mails. In response, the bailiff only offered an overview of the e-mails concerned and the personal data they contained, but refused to provide a copy.
The Court decided in favor of the bailiff. The Court indicated that the right of access under the GDPR is not materially different than under the prior Data Protection Directive, so any precedent under the prior regime was still relevant. The Court also pointed out that the GDPR does not grant a right to obtain a copy of documents; it only grants a right to obtain a copy of personal data. The information provided should be sufficient to allow the data subject to verify the correctness of the data and its lawful processing.
In relation to documents that do not contain much personal information, such as the e-mails in question, the court held that it suffices to describe the data they contain. It is not necessary to provide a copy of the e-mails, although the Court acknowledged that this approach may be less practical for documents that contain higher volumes of personal data. The Court did not accept the individual’s argument that this does not allow him/her to verify that the documents do not contain more personal data than indicated by the bailiff, as there was no indication from the documents provided that they might contain more data.
In addition, the Court highlighted derogations under Dutch law to the right of access, for example, in the context of judicial procedures. Moreover, the Court noted that the request for access appeared to be triggered by a desire to know the origin of the e-mails rather than to verify the personal data they contained.
In many respects, this decision mirrors earlier guidance from German authorities on which we reported previously (see our prior blog post here).