FEBRUARY
2006
German Federal Foreign Office charges excessive
fees for FOIA requests, deterring requesters For requests
filed under the new Federal Freedom of Information Act,
the Foreign Office has been charging high fees for searching
and copying of documents; in addition, no request will be
filled unless payment is made in advance. In one recent
case cited by Heise
Online, a requester was charged 107.20 euros for a four-page
response to a request the Foreign Office had designated
as "simple" (106.80 euros for compilation of the
documents and 40 eurocents for copying).
Walter
Keim, an expert on Freedom of Information in Germany,
has filed a follow-up request for the same documents, to
determine whether the search and review fees will be reduced.
Read Walter Keim's application >>
18 AUGUST 2005 German
Data Protection Commissioner to become Freedom of Information
Commissioner
Under
the new German Freedom of Information Law, which will enter
into force on January 1, 2006, the current Federal Data
Protection Commissioner Peter Schaar will also assume the
job of Federal Commissioner for Freedom of Information.
Read more.
29 JUNE 2005
German Bundestag Passes Freedom of Information
Act after Years of Controversy
Until mid-2005, Germany was the only major country in Europe
(and in fact in a small minority of developed countries
worldwide) without a freedom of information law. In 1999,
commentator Joachim Wieland analyzed the German tradition
of secrecy and the absence of a general right of access
to records in German Public Law. In looking forward, Wieland
predicted the "dawn[ing] of a new information policy"
but also warned of the political and administrative difficulties
inherent in any effort to install freedom of information
as a fundamental value in Germany. Joachim Wieland, Freedom
of Information, in Christoph Engel & Kenneth H.Keller
(eds.), Governance of Global Networks in the Light of Differing
Local Values (Baden-Baden 2000).
The German Bundestag (Parliament) passed the new Federal
Freedom of Information Act on June 3, 2005, after nearly
seven years of political conflict and protracted delays.
First proposed by the governing coalition in 1998, it was
not until December 2004 that the freedom of information
bill was read in the Bundestag for the first time. One month
later, on July 8, 2005, Germany's upper house of Parliament,
the Bundesrat, also approved the Act, long promised and
sought by the ruling coalition of Social Democrats (SDP)
and Greens. The Act was approved by a narrow margin in the
Bundestag last month, and its supporters feared that the
Liberals (FDP) would attempt to block passage in the Bundesrat,
which is composed of representatives of the state governments.
This delay shortly before a general election would likely
have killed the proposed Act.
Rather
than following the recommendation of the Internal Affairs
Committee to stall the Act in mediation, the FDP reversed
its position, seeking to emphasize their support for civil
rights in light of the upcoming election. Leaders in the
Bundestag pressured the state governments not to stand in
the way of freedom of information. The Act will take effect
at the start of 2006.
Despite
guaranteeing a general right of access to government information,
the Act contains several strong exceptions that have been
criticized by freedom of information advocates. Exceptions
apply where disclosure of a document might have adverse
effects on public safety, national security, or international
relations. The Act also exempts records of regulatory authorities
on financial and business competition matters as well as
broadly protecting the "fiscal interests of the federal
government."
With
regard to confidential business information and intellectual
property information, the Act mandates that the company
gives its permission before the government may release such
information. In the case of personal information, the authority
that holds the record may weigh which interests are more
significant-those of the requestor or of the individual
concerned-in determining whether to release the record.
Access
to information: Any citizen can request information
from a government body, whether or not the citizen has a
legal interest in gaining access to the documents. The requested
information must be provided to the petitioner "without
delay"; for complex inquiries, the government must
comply within 2 months.
Exceptions: Information may be withheld
by the government if its release would have an adverse impact
on defense, public security, or tax collection, or if withholding
would be necessary to protect trade secrets. The Act also
contains strict provisions regarding business information
and company secrets; such information may not be released
unless there is an exception public interest, even when
the company gives its consent.
Internet
clause: The Act requires that the German government
make certain documents available to the public at large
on their Internet web site. The information subject to this
provision includes "items of information as well as
available plans and registers."
FREEDOM
OF INFORMATION IN THE GERMAN STATES
Currently,
4 of the 16 German states have their own freedom of information
laws (Berlin, Brandenburg, Nordrhein-Westfalen, and Schleswig-Holstein).
In
response to the introduction of national legislation, freedom
of information and data protection authorities of these
four states issued a joint
press release (in German). They noted that
although the new bill is "a step in the right direction,"
the "numerous compromises" that were necessary
to allow its passage in parliament have resulted in an overly
restrictive law.
The
Act
to Regulate Access to Federal Government Information
was adopted in June 2005 and went into force on 1 January
2006.(1) It gives any person a right of
access to official information from agencies of the federal
government or those organizations or persons conducting
public duties. Information must be provided within one month.
It can be provided orally, in writing or electronically.
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: 100
Source:
UN Development Program, Human Development Reports
Data
There
are extensive exemptions in the law. Drafts or notes are
not included in the definition of official information.
There are exemptions for information the disclosure of which
would have a detrimental effect on international relations;
military interests; internal or external security interests;
duties of regulatory authorities; external financial control;
prevention of prohibited foreign trade; ongoing legal, criminal
or administrative proceedings; jeopardize public safety;
subject to secrecy or confidentiality by another law or
state secrets regulation; impair the fiscal interests of
the federal government; third party confidential information
or relates to the intelligence services or the Security
Screening Act. Drafts and resolutions can be withheld if
they would prevent the success of the decision or pending
matters. This does not include results of evidence gathering
or opinions of third parties. Access to another person's
personal data can only be given if the interest outweighs
the other person's interest or the person consents to the
release. Sensitive personal data can only be released with
consent. There is no right of access if it conflicts with
intellectual property rights.
Requestors
can appeal denials internally. They can then complain to
the Federal
Commissioner for Data Protection and Freedom of Information.(2)
The Commissioner also has the authority to monitor compliance,
issue complaints, recommend improvements in law and practice
and submit a bi-annual report. Appeals can also be made
to the courts.
Authorities
are required to maintain indexes of information and their
purposes. Indexes and other information should be made available
on government websites.
Implementation of the Act has been very low profile. There
has been little media attention or discussion of the law
and little effort by the government to promote the law.
Some agencies such as the Foreign Office have announced
that they are planning to charge large fees for access to
information.(3)
Federal Archives are regulated under the Federal Archives
Act.(4) It allows for open access to most
records after thirty years. Personal information is withheld
for thirty years after the death of the person or 110 years
after their birth. Information can also be withheld by other
laws. The Government announced in April 2006 that it was
opening the Holocaust archives.(5)
Germany
signed the Aarhus Convention in December 1998 but has not
ratified it. Access to environmental information is under
the Environmental Information Act.(6) The
German practice was found several times by the European
Court of Justice to not be adequate under the EU 1990 Directive.
The law was revised in 2005 to implement the EU Directive
2003/35/EC on public access to environmental information.(7)
Individuals
have a right to access and correct their own personal information
held by government and private bodies under the Federal
Data Protection Act.(8) It is also enforced
by the Federal Commissioner.
The
Stasi Records Act allows access to the files of the secret
police of the former German Democratic Republic (East Germany).(9)
The law created a Federal Commission for the Records of
the State Security Services of the Former GDR which has
a staff of 3,000 piecing together shredded documents and
making files available.(10) There have
been two million requests from individuals for access to
the files and three million requests for background checks
since the archives became available. Researchers and the
media have used the archives 15,000 times. There was an
extended legal battle over the release of files collected
on former Chancellor Helmut Kohl related to illegal activities
by Kohl while he was head of a political party. In 2005,
some of the files were released but it did not include information
gathered from illegal wiretaps.(11)
The
states of Brandenburg, Berlin, Hamburg, Nordrhein-Westfalen,
and Schleswig-Holstein have also adopted combination FOI
and Data Protection laws each with its own commissioner.(12)
Efforts are pending in another three states. All of the
states have data protection laws with commissions.(13)
18
AUGUST 2005 German Federal Data
Protection Commissioner to become Freedom of Information
Commissioner
Under
the new German Freedom of Information Law, which will enter
into force on January 1, 2006, the current Federal
Data Protection Commissioner Peter Schaar will also
assume the job of Federal Commissioner for Freedom of Information.
Schaar has emphasized the importance of his new position
to the successful implementation of the new law:
"According
to the new Freedom of Information Act, the Federal authorities
have now to perform their duties and to deliver. They
will have to adapt their internal procedures and organisational
structures in such a way that, after the law has entered
into force, they are able to give applicants access to
information within the one-month-period of time as stipulated
by law. No deferment is permitted. I will commit myself
to make sure that all citizens are informed about their
new chances to get access to information. In this context,
I also consider it important that the different Federal
authorities fulfil their obligation to inform the citizens
about their new rights, for example, on their respective
websites. I am optimistic that the authorities will understand
that improved transparency of their performance is a key
to achieve a more citizen-friendly administration."
Read Press Release, July 8, 2005.
8
JULY 2005 UPDATE:
Germany enacts Freedom of Information Act German Bundesrat passes
statute, but questions remain
The
Bundesrat, the upper house of the German parliament, voted
today to pass the Federal Freedom of Information Act, long
promised and sought by the ruling coalition of Social Democrats
(SDP) and Greens. The Act was approved by a narrow margin
in the Bundestag last month, and its supporters feared that
the Liberals (FDP) would attempt to block passage in the
Bundesrat, which is composed of representatives of the state
governments. This delay shortly before a general election
would likely have killed the proposed Act.
Rather
than following the recommendation of the Internal Affairs
Committee to stall the Act in mediation, the FDP reversed
its position, seeking to emphasize their support for civil
rights in light of the upcoming election. Leaders in the
Bundestag pressured the state governments not to stand in
the way of freedom of information. The Act will take effect
at the start of 2006.
Despite
guaranteeing a general right of access to government information,
the Act contains several strong exceptions that have been
criticized by freedom of information advocates. Exceptions
apply where disclosure of a document might have adverse
effects on public safety, national security, or international
relations. The Act also exempts records of regulatory authorities
on financial and business competition matters as well as
broadly protecting the "fiscal interests of the federal
government."
With
regard to confidential business information and intellectual
property information, the Act mandates that the company
gives its permission before the government may release such
information. In the case of personal information, the authority
that holds the record may weigh which interests are more
significant—those of the requestor or of the individual
concerned—in determining whether to release the record.
7.
See S. Bugdahn: Of Europeanization and domestication:
the implementation of the Environmental Information Directive
in Ireland, Great Britain and Germany, Journal of European
Public Policy 12: 1 February 2005.
"While
there was no federal law establishing public access
to government information, four states Berlin,
Brandenburg, Schleswig Holstein, and North Rhine
Westphalia have freedom of information laws. In
these states, denial of access to information
was usually attributable to concern for the protection
of business confidentiality and a narrow interpretation
of the law. Fees for obtaining information were
not a significant impediment. All four states
with such laws provide for an appeals process."
Civil
Society, Public Information and Media (rating 1-100):
85 (Strong)
Subcategory:
Access to Information Law (rating 1-100):
61 (Weak)
"The
lack of a freedom of information law remains a
source for non-transparent public services. In
Germany, civil servants continue to work according
to the old principle of "Amtsverschwiegenheit"
(pledge of secrecy of the civil service). This
means that as a principle, all civil service documents
are classified.
In
practice, citizens do obtain personal data which
the state has collected (even though security-relevant
data are sometimes not released at all). Also,
all major political decisions are made public.
There no lack of citizen information in this
realm. Yet critical problems arise in the murky
area between the individual right to personal
data and the publicity of big politics. Citizens
often find it hard to trace how certain government
agencies come to reach their conclusions; in
many cases, it is impossible for them to access
documents which could tell them why, say, a
planning permission was refused, or how certain
public contracts came to be negotiated. A recent
example of this deplorable state of affairs
is the toll fee on German highways for trucks.
Initially, a public-private partnership was
set up. However, Toll Collect failed to provide
a functioning toll-collection system in time;
due to technical problems, the system's launch
had to be postponed for at least six months.
Though it is estimated that the public sector
will lose around 900 million (US$850 million),
it remains unclear if the company is indeed
responsible for damage claims. The government
insists that Toll Collect is legally responsible
for the financial loss, but the company denies
any responsibility. Because the contract for
the public-private partnership is kept secret,
the public cannot verify Toll Collect's financial
liabilities, although a commission of Parliament
got access.
The
federal government has promised to introduce
a freedom of information law in this parliamentary
session. Once in power, the principle of "Amtsverschwiegenheit"
will be abandoned, and all public records will
be freely accessible."
1)
Voice and Accountability: 1.38
2) Political Instability and Violence: 0.92
3) Government Effectiveness: 1.38
4) Regulatory Burden: 1.29
5) Rule of Law: 1.66
6) Control of Corruption: 1.90
