general, the decision to carry out automatic number plate recognition is taken solely
within the public authority. In light of these circumstances, the authorisation to carry
out automatic number plate recognition can only be considered proportionate if the
basis for the decision to carry out such a measure is documented in a comprehensible and verifiable manner (cf. BVerfGE 133, 277 <370 para. 215>; 141, 220
<284 and 285 para. 141>; SächsVerfGH, Judgment of 10 July 2013 – Vf. 43-II-00 –,
juris, para. 218 et seq.). This concerns in particular the requirement of “relevant information on the situation” which is applicable to all constituent element options and
which only takes on shape through specification by a public authority. In addition, it
concerns the selection of the police data records to be used. In respect of proportionality, this requirement is – for all cases of automatic number plate recognition –
relevant in three ways: Firstly, having to account for the basis of one’s decisions rationalises and moderates the decision taken by the authorities. Secondly, oversight
by the data protection officer, which is of increased relevance where possibilities of
individual legal recourse are limited, as is the case here, is only possible through documentation. Finally, it makes review by administrative courts easier, if such measures
are documented.
gg) In principle, the Act also provides constitutionally tenable provisions with regard
to the use of the data and data deletion. However, use of the data for further purposes is not sufficiently limited.
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(1) The second sentence of Art. 33(2) BayPAG regulates the collection of data and
the third and fourth sentences set out, in respect of its use, the authorisation to crosscheck them to the specified extent with the aim of obtaining information on persons
or objects sought in pursuit of the purposes examined above. A reasonable interpretation of the provision requires that the cross-check be conducted without undue delay, and is consistent with current practice. The recognition of a number plate and its
cross-checking are carried out within a split second.
159
Furthermore, Art. 38(3) first sentence BayPAG ensures that the recorded number
plates are to be deleted after the cross-check without undue delay. This is in line with
the constitutional requirements (cf. BVerfGE 120, 378 <397, 399>). The false positive
matches are also subject to the requirement of deletion as soon as it has been determined that the number plates are not the ones sought.
160
In accordance with the purpose of automatic number plate recognition, pursuant to
Art. 38(3) second sentence BayPAG, data is not to be deleted, however, in case of a
match and where the data is needed in order to avert a danger. Insofar as the provision refers to those dangers which it is the purpose of the automatic number plate
recognition to avert, this cannot be constitutionally objectionable given that it follows
from the justification of the number plate recognition measure itself and thus fulfils
the purpose thereof. For the further use of the data, the provision refers to Art. 38(1)
and (2) BayPAG, which are not at issue in these proceedings.
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(2) Insofar as Art. 38(3) second sentence BayPAG authorises the use of data for
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