In its decision of December 10, 2014, VfSlg 19.937/2014 (cf. also Data Protection Report 2014, page 28 f), the Constitutional Court (VfGH) stated that the data protection authority is not competent to decide on the destruction of paper files of an authority (by means of scarting, blackening, removal of individual pieces of files, etc.) under the aspect of the protection of private and family life (Art. 8 ECHR).
Such requests shall be made to the authority that maintains the files. Their decision may be appealed to the competent administrative court in accordance with the applicable procedural law.
The matter, which already gave rise to the proceedings at that time, has now again become the subject of a complaint by the highest court. In the decision of the Constitutional Court of December 12, 2017, E 3249/2016, a decision of the Federal Fiscal Court (BFG) was overturned for violation of Article 8 ECHR. The BFG’s annulled decision dealt only inadequately with the balancing of the complainant’s interest under Art 8 ECHR and the public interest in the preservation (non-destruction) of the documents (paper files) concerning the complainant’s private life from a constitutional perspective. Overall, the BFG had assumed in the contested decision that the public interest in keeping the paper files outweighed the complainant’s interest in deletion in a manner that was impossible to imagine.