Administrator VvE appeals to AVG, justified or not?

When members of an Owners' Association request access to the records of the Owners' Association, directors or managers often invoke the AVG. The AVG would then prevent the provision of privacy-sensitive information to VvE members. But is such reliance on the AVG justified? Robert van Ewijk is lawyer specialized in VvE law and explains the situation.

VvE's appeal to AVG often unsubstantiated

Often we see that reliance on the AVG is not substantiated. It is then simply stated that there is an AVG so that the provision of the requested documents is so does not have to. Indeed, it is often even said that granting access would be prohibited under the AVG. In such cases, for example, the reference to where in the AVG we can find the relevant prohibition is missing.

The AVG does not provide an absolute ban on processing personal data

While it is true that the AVG protects provision (processing) of personal data, it is not an absolute prohibition. In the AVG (General Data Protection Regulation) lists six legal bases when personal data can be processed. In this case, it involves the provision of personal data. That is also a form of ‘processing. One of those grounds is the performance of an agreement. It is defensible that this ’agreement‘ can be equated with the regulations in the deed of subdivision in which the right to inspect the records of the VvE is stated. There are authors who also mention compliance with a legal obligation as a basis. I find this less strong. The reference is to article 843a Rv. However, there is no obligation to provide access, only the right to demand access.

CoE regulations: giving access to records is mandatory

The vast majority of BoE regulations require the board to allow access to the administration of the BoE. Such records include data that can be traced back to natural persons. These data are also often privacy-sensitive, since they contain names, addresses and other contact information. In addition, the records of the VvE record payment arrears of its members, and so on. The members' right to inspect these records is justified by the fact that they are co-owners of the entire apartment complex. This also justifies that each member of the VvE must be able to access information relating to the administration of the VvE upon request. Even if those records contain privacy-sensitive information. See in this regard, for example, the judgment of the Amsterdam District Court of 22 January 2015 (3152025 EA 14-583, unpublished).

VvE board should not simply hide behind the AVG

The board (or administrator) cannot evade the obligation to provide that data by hiding behind the AVG. The Rotterdam court ruled on a records request in 2021:

“This is an unconditional and unqualified right. In principle, such a request cannot be refused unless it is made on such unreasonable grounds that it must be considered an abuse of right. This will only be the case in exceptional situations.”

AVG correctly confirms that privacy-sensitive information can (sometimes) be provided

The AVG does not make this any different. In fact, the very bases discussed above that are contained in the AVG confirm that the requested data must be provided. Thus, if the board or administrator of the CoE were to hide behind the AVG, it could well be the world upside down.

AVG also applicable to other VvE issues

Other CoE issues in which the AVG is often invoked are seen, for example, when it comes to hanging cameras in the association. In that context, the blog of my office colleague Myrthe de Vries is interesting, in which she described how a VvE member had to remove a number of cameras (for unauthorized invasion of privacy) and was allowed to leave a number of others in place. In that blog the various interests to be weighed are also discussed.

Personal data authority did not have to take action against VvE

Also of interest is the case brought by a VvE member in 2021 against the Personal Data Authority (AP). That case was brought because the AP failed to act against a VvE that had put up security cameras. In the ruling, the administrative law judge ruled, that he does not judge the legality of the decision making of the VvE. He then ruled that the cameras installed were necessary to protect the property of the VvE and its members. Next, that the requirements for hanging them had been met and, finally, that the interest of the VvE prevailed.

VvE lawyer on (un)justified reliance on the AVG

In my opinion, appeals to the AVG are often made too easily and without proper justification by VvEs. The downside, however, is that there are indeed situations in which the board of the VvE must let the privacy interests of its members prevail. For example, if bank account numbers are requested (without necessity) (see the discussed Amsterdam court ruling, above) or if requests are made too casually. But even then, a request to inspect the records of the VvE cannot simply be refused.

Inspection of records of CoE ‘unconditional and unqualified right’

It involves - as the Rotterdam court pointed out - a unconditional and unqualified right. Take contact up with the VvE lawyer of Lexys Lawyers if you are in doubt as to whether an appeal to the AVG is justified by your VvE, or if you yourself wish to appeal to the AVG on behalf of the VvE.