First activity report on the Freedom of Information Act was handed over
Bonn, 8 April 2008
Today, Peter Schaar, the Federal Commissioner for Data Protection and Freedom of Information presented the first activity report on the Freedom of Information Act for the years 2006/2007 to Dr. Nobert Lammert, the President of the German Bundestag. Said Peter Schaar:
“Free access to files and information held by the public administration is a new civil right. It has to be respected, and to support its implementation is not a burdensome duty, but is also for the most part in the interest of the administration. Freedom of information is an essential element of a lively democracy. If citizens know how governmental bodies act, this promotes the citizens’ confidence in those public bodies and at the same time, this leads to an improved understanding of administrative procedures. Already now, two years after its entry into force, the Freedom of Information Act has shed more light on offices. Transparency and openness of administrative activities promote the democratic opinion-forming and decision-making process. The improved public participation achieved by this can and will strengthen acceptance of governmental activities as well”.
On 1st January 2006 the Federal Freedom of Information Act (IFG Federal Law Gazette 2005 I p. 2722) entered into force and assigned to the Federal Data Protection Commissioner also the task of the Federal Commissioner for Freedom of Information whom everybody is entitled to consult if he or she considers his or her right to access to information has been violated pursuant to the IFG.
After two years of freedom of information at the federal level, the activity report presented today draws a first balance:
First and foremost, many fears related to the adoption of the IFG have not been confirmed. The Federal administration did not break together under a flood of requests for access to information. As a whole, according to observations made, administrative efforts to comply with the law were kept within limits and this is partly due to the behaviour of public offices which, by interpreting the law in a too restrictive way, provoked sometimes superfluous proceedings of complaint, appeal and lawsuits. Also unnecessary involvements of third parties, for example of private companies, led to administrative efforts which were not necessary in this respect. By a better implementation of Art. 11 IFG (publication of directories leading to collections of information and other appropriate information) it would certainly be possible to further reduce the number of requests for information. In individual cases, certainly applications were filed – also with the intention to cause trouble -, which led to or would have led to excessive administrative efforts if they had been granted. In cases where the public offices concerned had first of all consulted with the Federal Commissioner for Data Protection and Freedom of Information (BfDI), as a rule, it was possible to find a solution acceptable to all parties.
Also the concerns related to unsolvable conflicts between data protection and freedom of information could not be confirmed. The BfDI only dealt with few cases in which the protection of personal data played a vital role, and by means of Article 5 IFG, it was possible to find a satisfactory solution as well. According to the observations made by the BfDI, the petitioners showed clear understanding for the protection of third parties’ data and accepted the restrictions imposed regarding their right to access to information.
The citizens welcomed the new law. In many ways, they exercised their right to access to information, even though the whole number of applications will eventually even rise once the knowledge about the law increases. As in general, it is not necessary to give reasons for the access to information, there does not exist any survey indicating who for which reasons exercised this right enshrined in the IFG. However, the BfDI has the impression that this area is very large. The cases dealt with do not indicate any excessive representation of certain groups among applicants, such as companies or journalists.
In contrast, in some authorities, reservation against freedom of information is still clearly perceptible. The switch-over of public Federal bodies from the principle of official secrecy to transparency and openness breaks with long-standing administrative traditions and has not been realised by all in the same way.
Whereas many authorities made an effort to comply with the new statutory regulations by giving a positive answer to citizens’ request for access to information, there has also been a number of cases of non-compliance with the provisions of the IFG. Requests were either not or only slowly dealt with, or demands to obtain information were incorrectly refused with reference to one of the numerous exemptions. Also cooperation with the Federal Commissioner for Freedom of Information was not always as open and confident, as it had been customary until that point of time. If at the beginning, this stance could be explained by ignorance and insecurity in dealing with the new provisions, recently, in individual cases, it has been impossible to ignore an attitude of refusal related to freedom of information. In one case, it was even necessary to pronounce a formal rebuke due to the refusal of cooperation (cf. no. 4.6.7 of the bi-annual activity report).
In the period covered by the report, the BfDI has been consulted by citizens in writing in altogether 318 cases. This number increased by numerous demands for information by telephone. As to the written petitions, however, only a minor part of these requests concerned cases in which requests for information had been filed with Federal authorities. Many of the applications were complied with so that it was not necessary for data subjects to lodge a complaint with the BfDI. In other cases petitioners filed recourse to administrative tribunals without any prior involvement of the BfDI. Therefore, the cases and experience illustrated in the activity report show only a partial aspect and do not completely reflect the way the Federal administration deals with the law. Therefore, the total result could be more positive than it seems to be according to the activity report, as the BfDI only dealt with cases in which data subjects were not satisfied with administrative actions.
In connection with petitions now concluded, in many cases, the BfDI managed to achieve a favourable solution for the petitioner. The public offices partly revised their point of view and granted a complete or at least partial insight into requested documents. In up to now two cases, the BfDI made use of his rights pursuant to Art. 12, para. 3 IFG in connection with Art. 24 para. 1,4 Federal Data Protection Act to review classified information with the aim of verifying whether the reasons for refusal purported by the administrations were correct. In five cases, the BfDI issued a formal rebuke, the only sanction he is entitled to, given that serious violations against statutory provisions had been found and the public office in question was not willing to give in. However, in this context, those legal means were used very restrictively, in many cases, an objection was waived for the time being in order to wait for the conclusion of an on-going legal procedure.
In the two years that have passed since the entry into force of the IFG, many questions and problems were raised as regards the application of the Act; in particular in connection with the numerous exceptions provided by the law:
- One reason often used for refusal are alleged trade- and business secrets pursuant to Art. 6 sentence 2 IFG. However, in this context, the public offices recede too quickly without involving the companies concerned without verifying their information, or without explaining sufficiently in how far the disclosure of the required information could result in a concrete economic disadvantage for the company.
Contractual relations between a company and the public administration cannot and must not already constitute a business secret. In this context, at least a partial access to information pursuant to Art. 7 para. 2 IFG could be made possible.
- Tax authorities, authorities regulating competition or regulatory authorities refer time and again in general to exceptions mentioned in Art. 3 no. 1d IFG. However, in this connection, this is not a matter of an exception related to an area for these authorities, but in any individual case, they have to explain in detail in how far the disclosure of the respective information could have a negative impact on their auditing or supervisory tasks respectively.
- Access to information is also often refused because that information is subject to statutory secrecy rules (Art. 3 no. 4 IFG). However, in this case, the real scope of application of those specific rules must always be verified. Sometimes, it is also the case that alleged “specific” official secrets only constitute a substantiation of the general official secret, which means that these specific official secrets cannot deny any access to information. Moreover, in connection with classified information a request for access to information should be used as an occasion to review the decision taken on the classification. In particular with regard to classifications made quite a long time ago, it is possible that by now, the reason for secrecy has expired.
- Contractual agreements on confidentiality must not result in the IFG being of no avail. It is not possible to circumvent the IFG by contractual agreements. The exceptions in Art. 3 no. 7 IFG are only intended to protect informants and as all exceptions, they require a narrow interpretation.
In addition to the Freedom of Information Act also the Environmental Information Act (UIG) and the Consumer Information Act (VIG) grant citizens the right to information in connection with the public administration. However, the separation of these claims is very difficult and its conditions and the respective procedures are different. Therefore, it would serve the interests of persons and of freedom of information if a harmonisation could be achieved.
- number:
- 14/2008
- Date of issue:
- 16.04.2008