German Court Rules on FOI Corporate Coverage

30 August 2012

By Rafael Njotea

This article appeared in Wobbing Europe on Aug. 23.

Companies owned by the state for 50 percent or more fall under the same transparency regulations as public bodies, a court ruling by the Berlin Administrative Court says. Previously, the freedom of information regulation only held for companies owned by the state for 70 or 80 percent.

The case in question was triggered in 2008, when Tageszeitung journalist Sebastian Heiser filed a WOB request about the sums given by sponsors of the annual Hoffest in Berlin. The Hoffest is a gathering in the city hall’s inner courtyard to which the incumbent mayor, in this case Klaus Wowereit, traditionally invites about a thousand prominent guests – politicians, entrepreneurs, actors, representatives and other celebrities. There had been demonstrations near the Hoffest under the motto “Wasser statt Wein” (water instead of wine), calling for less money to be spent on parties and more on the city’s employees.

Heiser’s request was directed at Berlin Partner GmbH, a company majority-owned by the state of Berlin that had recruited the Hoffest sponsors. But the company did not grant the request as it found that the sponsorship sums should be viewed as trade secrets, which the public does not have the right to know. The Court, however, ruled against the company, arguing that the demonstration and the extensive media coverage on the Hoffest were valid proof of a significantly broad public interest in information on the sponsorship sums. In its ruling the Court stated that the state of Berlin’s press laws include legal persons such as limited liability companies that are operative in the public sector, the only precondition being that the private entity is dominated by the public entity, meaning all companies that are majority-owned by the state.

The Court based its decision on a ruling made by the German Constitutional Court last year in a case where citizens had organised a demonstration in the entrance hall of Frankfurt airport against noise pollution. The Constitutional Court ruled that the airport entrance hall was not to be seen as private property, because the state of Hessen and the city of Frankfurt together own slightly more than half of airport company Fraport AG’s shares, thereby making it public space in which demonstrations are allowed.

Even though the Hoffest case took three and a half years to reach a close, the results are still relevant. After looking into the sponsor list, Heiser found the biggest sponsor to be the 100% state-owned Berlin cleaning service company, which contributed 14,900 Euros, despite repeated claims by mayor Wowereit that no tax money had been “directly” used to fund the Hoffest. The Berlin public transport company sponsored 7,900 Euros. “Both are loss-making companies that balance their books with money from the treasury every year”, says Heiser. “Had they not sponsored the Hoffest, then they would have needed less money from the treasury, so be sure that that money was indeed taxpayers’ money!”

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