BVwG: No Obligation to Delete Minutes of ÖH Meetings

Aug 4, 2023 Benn-Ibler Rechtsanwälte

The Austrian Federal Administrative Court (Bundesverwaltungsgericht, hereinafter BVwG) has ruled that no right exists to the erasure of personal data from the minutes of meetings of a public body (in this case, the Austrian National Students Union, ÖH).

In the present case, a member of the ÖH, a public body, complained that his name and, in part, his voting record appeared in the minutes of meetings held between 2009 and 2011, which were published on the ÖH website. The complainant asked the ÖH to delete his name from the reports and to remove the links to the reports. As the ÖH did not comply with his request, the mandatary filed a complaint with the Austrian data protection authority, DSB.

The DSB upheld the complaint, finding that the ÖH had infringed the right to erasure (‘right to be forgotten’) under Article 17 of the GDPR.

The ÖH lodged a successful appeal against this decision with the BVwG.

There is no right to erasure under Article 17 GDPR if the processing is necessary for the controller to fulfil a legal duty. Nor does it apply if processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority.

The statutes to be adopted by the federal representation itself according to Section 9 (2) of the Austrian Student Union Act 2014 (HSG 2014) contain the obligation to publish the minutes of the meetings, including the names of those present, on the internet. This obligation is an emanation of the democratic principle and can be found in a similar way in the Rules of Procedure Act of the Austrian National Council. Contrary to the opinion of the DSB, the publication of the minutes of the decisions of the Student Union from past terms of office is therefore still necessary, as the interest of a democratic society is not limited to a certain period of time.

The data processing was therefore lawful pursuant to Article 6(1)(c) and (e) GDPR and precludes a claim for deletion.

BVwG W108 2250856-1/6E (28 April 2023)