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2021-0.297.343 (D124.3687), Copy of mask exemption certificate may be transmitted to county administrative agency and medical board for review in case of suspicion

16/11/2021 by Andreas Schindler

The complainant had been stopped by officers of the LPD Carinthia in the spring of 2021 on the fringes of a demonstration against the Covid-19 measures because he had not worn a close-fitting mechanical protective device, which is obligatory according to § 12 of the 3rd COVID-19-NotMV. The complainant then presented a mask exemption certificate issued by a Viennese physician. Based on the suspicion that the certificate may have been issued illegally, the officers sent a copy to the district administrative authority and the medical board for review.
This was data processing within the meaning of sections 1, 4, 7 and 9 of the COVID-19-MG, and thus data processing on the basis of a legal basis within the meaning of section 4 para. 3 Z 2 DSG iVm Art. 10 DSGVO. According to these provisions, the district administrative authorities and, upon their request, the organs of the public security service may, within the scope of their duty to assist pursuant to § 10 COVID-19-MG, ensure compliance with prohibitions on entering, requirements and conditions (as well as the wearing of the MNS) and restrictions pursuant to § 5 para. 4 – also by means of on-site inspections – and, furthermore, the organs of the public security service are obliged to cooperate in measures to initiate and secure administrative criminal proceedings. This was done lawfully in the present case.
The data protection authority was unable to establish that the transmission to the Austrian Medical Association would have been inadmissible from the outset, as the transmission ultimately served to verify the authenticity of the medical certificate, which in turn was an indispensable prerequisite for the imposition of an administrative penalty. This meant that the investigation was admissible from the perspective of data protection law in accordance with the so-called prohibition of excessiveness, since it was conceivable that the data determined by the LPD responsible for the subject matter was suitable in terms of type and content for determining the relevant facts.
The decision is not legally binding.

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