VGer ZH (VB.2019.00153): Request for inspec­tion under can­to­nal school law dis­missed; pos­si­ble abu­se of rights

The Admi­ni­stra­ti­ve Court of the Can­ton of Zurich has pro­tec­ted a decis­i­on of the District School Board B of the City of Zurich (Judgment VB.2019.00153 dated Sep­tem­ber 12, 2019, invol­ving a father’s inspec­tion of an email sent by the mother to the school. In appar­ent­ly high­ly con­ten­tious cir­cum­stances, the father had wan­ted to know whe­ther an invi­ta­ti­on from the school to sepa­ra­te parent mee­tings was based on a request from the child’s mother. The district school admi­ni­stra­ti­on had refu­sed this access – and right­ly so, says the Admi­ni­stra­ti­ve Court of the Can­ton of Zurich: the Ele­men­ta­ry School Act does not pro­vi­de for this cla­im, and the Can­to­nal Infor­ma­ti­on and Data Pro­tec­tion Act (IDG) is not appli­ca­ble; but even accor­ding to IDG, this infor­ma­ti­on would have to be refused.

Inte­re­st­ing is the remark (obiter, but still) that the request for infor­ma­ti­on would have been abu­si­ve at best:

It should be noted that in the pre­sent case it also appears que­stionable whe­ther the complainant’s request for inspec­tion should not have been dee­med to be an abu­se of rights. In view of the undis­pu­ted­ly long-stan­ding and obvious­ly pro­found con­flict bet­ween the com­plainant and C, it appears that the request for access should not have been con­side­red an abu­se of rights. it is at least very que­stionable whe­ther the pur­po­se of his request is actual­ly to make infor­ma­ti­on about an offi­ci­al acti­vi­ty available or whe­ther his request ser­ves the pur­po­ses pur­sued by the IDG. (cf. Sec­tion 1 (2) IDG).

As is well known, the Fede­ral Supre­me Court takes a hard line (under the DPA) regar­ding requests for infor­ma­ti­on, but has left the door open to the objec­tion of abu­se of rights (BGE 138 III 425 E. 5.5):

Thus, abu­se of rights is con­side­red if the right to infor­ma­ti­on is too pur­po­ses con­tra­ry to data pro­tec­tion is used, for exam­p­le to save the costs of a data acqui­si­ti­on, which would other­wi­se have to be paid […]. One can also think of a haras­sing Exer­cise of rights wit­hout a real inte­rest in the infor­ma­ti­on, mere­ly to make the par­ty requi­red to pro­vi­de infor­ma­ti­on dama­ge […]. An impro­per use of the right to infor­ma­ti­on under data pro­tec­tion law and thus an abu­se of rights would pro­ba­b­ly also be assu­med if the request for infor­ma­ti­on were to only is made for the pur­po­se of fin­ding out the (later) coun­ter­par­ty and Obtain evi­dence that a par­ty could not other­wi­se obtain. Becau­se the right to infor­ma­ti­on accor­ding to Art. 8 DSG Does not seek to faci­li­ta­te the obtai­ning of evi­dence or to inter­fe­re with the law of civil procedure

Sin­ce then, this case law has often been taken up, but not substantiated.

With the revi­sed DPA, the issue is likely to beco­me less important inso­far as a Refu­sal to pro­vi­de infor­ma­ti­on due to own over­ri­ding inte­rests of the con­trol­ler should also beco­me pos­si­ble if the con­trol­ler dis­c­lo­ses the applicant’s per­so­nal data to third par­ties (at least accor­ding to the Natio­nal Coun­cil; howe­ver, given the high poli­ti­cal pres­su­re on the Coun­cil of Sta­tes against the back­drop of the EU Commission’s ade­qua­cy review, it is unli­kely that the Coun­cil of Sta­tes will devia­te on this point).

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