Germany
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1 July 2014
Germany Failing on RTI in Five States
By Walter Keim The following is the text of a letter sent June 27 by RTI activist Keim to Frank La Rue, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression 5 German states fail to respect human right of access to information, found for 84% of the worlds population. EU, CoE, OSCE and […]
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22 January 2014
German Government Claims Copyright on Document
The German Ministry of the Interior has ordered a freedom of information website to take down a document obtained under the freedom of information law. Frag den Staat, a German FOI portal run by the Open Knowledge Foundation Germany, published a document on election law policy that the government now says is covered by copyright […]
freedom of information
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 2006)
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.
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)
NOTES
Gesetz zur Regelung des Zugangs zu Informationen des Bundes (Informationsfreiheitsgesetz – IFG) (unofficial translation of final draft)
Homepage: http://www.bfd.bund.de/EN/Home/homepage__node.html
Freedom of information: Federal Foreign Office uses hefty fees as deterrent, Heise Online, 2 February 2006.
Law on the Preservation and Use of Federal Archival Documents (Bundesarchivgesetz – BArchG) of 6 January 1988 (BGBl. I S. 62), as amended at last by the Freedom of Information Law of 5 September 2005 (BGBl. I S. 2722).
After Resisting for Decades, Germany Agrees to Open Archive of Holocaust Documents, NY Times, 19 April 2006.
Environmental Information Act 1994 (Umweltinformationsgesetz, UIG) http://www.iuscomp.org/gla/statutes/UIG.htm
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.
8. Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG).
Act Regarding the Records of the State Security Service of the Former German Democratic Republic (Stasi Records Act) of 20 December 1991. http://www.bstu.de/seiten_ausland/englisch/gesetz_eng/stugenglisch.pdf
Web Site: http://www.bstu.de/home.htm
Kohl’s Stasi Files Released, Deutsche Welle, 24 March 2005.
See Gill, Four Pioneers: Freedom of Information in the German States http://www.informationsfreiheit.info/files/Gill_en040505.pdf
See http://home.online.no/~wkeim/files/050731bl-en.htm#answers
