In First Year, Germany’s Federal Agencies Struggle to Adapt to FOIA: But Requesters Off to Slow Start as Well

20 June 2007

By Thoralf Schwanitz

According to the first statistics published by the German Freedom of Information Commissioner, the federal administration is still struggling to adapt to the new openness required by Germany’s Freedom of Information Act, which entered into force on January 1, 2006. The new data also show that usage of the new law has been very low in the first year, with relatively few requests filed. In 2006, a total of 2,278 information access requests were made to all agencies of the federal administration, the German Federal Ministry of the Interior reports.

Germany’s Federal Ministry of the Interior in Berlin where information from all federal agencies is gathered to provide FOIA statistics. Copyright: © Land Berlin/Thie

The Ministry’s statistics show that 1,379 requests (more than 50 percent of all requests) were granted either fully or at least partially. Access was denied in 410 cases. Appeals were filed against 142 initial decisions. Of these appeals, 62 were rejected. At the end of 2006, the Federal Ministry of the Interior knew of 27 ongoing lawsuits over denied information access.

Very limited use of the IFG

The data provided by the Commissioner and the Ministry of the Interior indicate that use of Germany’s federal Freedom of Information Act (Informationsfreiheitsgesetz – IFG) is off to very slow start. How low the 2006 figures really are becomes clear when comparing them to early statistics of other countries where Freedom of Information legislation has been passed in recent years.

In Mexico, 24,079 requests were made to 239 federal government agencies in the first seven months after the Federal Transparency and Access to Governmental Public Information Law went into effect in June 2003.

In Turkey, the pressure group BilgiEdinmeHakki.Org observed the implementation of the Right to Information Act (Law No. 4982), which entered into force on 24 April 2004. By mid-August 2004, a total of 9,784 requests had already been reported for ten out of the 15 Turkish ministries monitored in the survey. Since not all Turkish ministries were able to provide their request statistics for that report, the actual level of use for the Turkish Right to Information Act is estimated to be even higher. Given that 9,784 requests were reported for a much shorter time period in Turkey, the total of 2,278 requests in the course of one year in Germany appears even more disappointing from a standpoint of FOI advocates.

Who is using the IFG to gather information from Germany’s federal executive branch? The Ministry of the Interior found that mostly private citizens put the new law to the test in 2006. 92 requests were made by members of the press, the Ministry reports. Four members of the Bundestag, Germany’s federal parliament, also filed requests on the basis of the IFG in 2006.

In contested cases concerning the access to government records, the independent Federal Commissioner for Freedom of Information serves as an extrajudicial ombudsman. In 2006, requesters sent 196 written complaints to his office with regard to violations of their right to access information held by federal agencies. In 102 of these cases, specific agencies had either not responded to the requests at all or had refused to make records available to the requesters in their entirety or had withheld them partially.

Highest number of complaints directed at Ministry of Transport, Building, Urban Affairs

94 further written queries to the Commissioner by requesters did not concern the conduct of specific agencies in particular instances, but rather general questions about the new Freedom of Information Legislation and its practical application. Such information was provided to the general public by the Commissioner’s office in a multitude of telephone conversations throughout the year 2006.

Most of the specific written complaints concerned the following federal agencies:

  • Federal Ministry of Transport, Building and Urban Affairs (19)
  • Federal Ministry of Labor and Social Affairs (17)
  • Federal Ministry of Finance (14)

The Commissioner was able to find satisfying solutions for the requesters in around two-thirds of the 161 completed cases in 2006. In many instances, the agencies reacted to the Commissioner’s comments and his exercise of influence regarding the practical interpretation of the new law by reversing their initial denial and granting the requester access to the records.

The Commissioner examined disputed records directly in two instances, thereby exercising his privilege to verify the reasons for nondisclosure claimed by the agencies. The provision in sec. 12, subs. 3 IFG requires the federal administration to provide the Commissioner and his assistants with information in reply to their questions as well as the opportunity to inspect all documents, connected with the Commissioner’s monitoring functions.

Official complaint by Commissioner has only limited effect

In one case, the Commissioner has lodged his first official complaint, an instrument granted to his office by the IFG as a means of intervening by voicing criticism. When directed at the federal administration, such a complaint is lodged by the Commissioner with the competent supreme federal authority. When directed against federal corporations and foundations under public law, the Commissioner’s complaint is lodged with the managing board and the Federal Commissioner shall in these cases also inform the competent supervisory authority. In the complaint, the Commissioner requests a statement by a date which he determines. The agency’s statement must then answer the Commissioner’s complaint and describe the measures taken in reaction to it.

The particular agency, at which the first Commissioner’s complaint was directed, the Federal Ministry of Transport, Building and Urban Affairs, had refused to grant access to information held by it, citing an exemption for cases in which disclosure of the information may have detrimental effects on the course of current judicial proceedings, a person’s entitlement to a fair trial, or the pursuit of investigations into criminal, administrative or disciplinary offences (Sec. 3. subs. 1g IFG). The agency claimed that granting access to the information could have negative consequences for its own prospect of success in a lawsuit initiated by it against a citizen.

The Commissioner in his complaint stated that this specific exemption from information access is designed to protect court proceedings as a whole, as an undisturbed process. The exemption does not, however, serve as a safeguard for the federal agency involved in the lawsuit. The Commissioner pointed out that the rule of law is disregarded when a federal agency sues a citizen, while at the same time withholding relevant records whose publication could lead to the agency losing that case.

Designed as a tool to bring about more transparency in the federal agencies, the official complaint clearly has only a very limited practical effect. It does not give the Commissioner any binding authority over the agency to prompt the release of the documents at issue.

However, the complaint against the Ministry of Transport, Building and Urban Affairs will be mentioned in the Commissioner’s Freedom of Information progress report to the Bundestag. Its parliamentary committees will then have the opportunity to question the Ministry’s stance in their hearings.

Emerging problem areas in the practical application of the law

There are further emerging problem areas in the practical application of the IFG. In numerous instances, the agencies based their decisions not to disclose requested information on the grounds that an exemption protects business or trade secrets, which may only be revealed if the data subject consents (Sec. 6 IFG). The Freedom of Information Commissioner notes in his report, however, that often the agencies rush to claim this exemption without any prior consultation of the concerned companies or any substantial explanation of how the disclosure of the requested information could lead to a concrete economic disadvantage or loss. In various cases, the Commissioner was able to facilitate a solution leading to the partial release of records, an option provided by the law (Sec. 7 subs. 2 IFG).

Agencies seek broad exemptions instead of precisely evaluating information

Financial as well as competition and regulatory authorities have repeatedly referred to the exemption of Sec. 3 no. 1d IFG. But this provision is limited to the “monitoring or supervisory tasks” of these agencies and does not exclude the agencies as a whole from the access law. They therefore have to set out in each case, how the disclosure of certain records and the information therein could impair their monitoring or supervisory tasks.

Often (and, as the Commissioner argues, too often), access to information is denied because agencies claim that the information requested is “subject to an obligation to observe secrecy or confidentiality by virtue of a statutory regulation or the general administrative regulation on the material and organizational protection of classified information, or where the information is subject to professional or special official secrecy” (Sec. 3 no. 4 IFG). In these cases, a thorough analysis of the scope of special confidentiality and secrecy provisions is necessary. When access to classified documents is requested via the IFG, a re-evaluation of the classification decision, especially regarding older documents, should be triggered, the Commissioner demands. The initial reasoning leading to the classification decades ago may in some cases no longer be sustainable.

Throughout the year, the German Freedom of Information Commissioner observed a decline in the quantity of complaints regarding the lack of responses or delays by federal agencies to access requests. The number of complaints of requesters concerning some agencies’ ignorance of the law also dropped towards the end of the first FOIA year. Excessive fees and some agencies’ demands for advance payments were also problems which arose mainly in the first months after the IFG went into force. This corresponds to the first statistics published by the Federal German Ministry of the Interior: According to its figures, federal agencies collected fees for only five percent (114) of all granted information access requests. The fee was less than 50 Euro in 50 of these cases, according to the Ministry.

In the meantime, the Commissioner concludes, the IFG has become better known within the agencies, which also have adopted moderate fee standards.

His report points out that that the federal administration must do more to comply with the requirements of active information publication as laid down in sec. 11 IFG. According to this provision, the authorities should keep directories identifying the available information resources and the purposes of the collected information. Organizational and filing plans without any reference to personal data shall be made generally accessible in accordance with other provisions of the IFG. The authorities should also make the plans and directories and other appropriate information generally accessible in electronic form.

Links

German Federal Commissioner for Freedom of Information

English translation of the IFG

Commissioner’s Report (in German)

Press release by the Federal Ministry of the Interior (in German)

Official statistics by the Federal Ministry of the Interior: IFG-requests to the Federal Ministries and their subordinate agencies in the year 2006 (in German)

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