Article
20 of the 1987 Constitution
requires that government bodies and corporations must provide
information to citizens while also setting extensive secrecy
requirements:(1)
•
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
(3)
All functionaries entrusted with Federal, Laender and municipal
administrative duties as well as the functionaries of other
public law corporate bodies are, save as otherwise provided
by law, pledged to secrecy about all facts of which they
have obtained knowledge exclusively from their official
activity and whose concealment is enjoined on them in the
interest of the maintenance of public peace, order and security,
of universal national defence, of external relations, in
the interest of a public law corporate body, for the preparation
of a ruling or in the preponderant interest of the parties
involved (official secrecy). Official secrecy does not exist
for functionaries appointed by a popular representative
body if it expressly asks for such information.
(4)
All functionaries entrusted with Federation, Laender and
municipal administrative duties as well as the functionaries
of other public law corporate bodies shall impart information
about matters pertaining to their sphere of competence in
so far as this does not conflict with a legal obligation
to maintain secrecy; an onus on professional associations
to supply information extends only to members of their respective
organizations and this in as much as fulfilment of their
statutory functions is not impeded. The detailed regulations
are, as regards the Federal authorities and the self-administration
to be settled by Federal law in respect of legislation and
execution, the business of the Federation; as regards the
Laender and municipal authorities and the self-administration
to be settled by Land law in respect of framework legislation,
they are the business of the Federation while the implemental
legislation and execution are Land business.
The
1987 Auskunftspflichtgesetz
(Federal Law on the Duty to Furnish Information) obliges
federal authorities to provide information regarding their
areas of responsibility within eight weeks.(2)
The requests can be written or oral and no justification
is required. It applies to national departments, the municipalities,
the municipality federations and the self-governing bodies.
Authorities
are limited by the secrecy provisions set out in Article
20(3) of the Constitution for reasons relating to public
security, defense, international relations, or economic
or financial interests of the government.
Appeals
for denials are made to the administrative agency first
and then to the Administrative Court. The court can rule
that the decision was not justifiable.
Austria
signed the Aarhus Convention in June 1998 and ratified it
in January 2005. The Federal Law on Environmental Information
was adopted in 1993 and amended in 2005 to implement the
2003 European Union Directive on the freedom of access to
information on the environment for information held by the
federal government.(3) In 2002, the EU
brought a case in the European Court of Justice identifying
several areas where the 1990 Convention had not been properly
implemented. It dropped the case in 2002 following changes
in the national and state laws.(4) In June
2003, the ECJ issued an opinion in a case brought by a MP
that administrative documents relating to the labeling of
genetically modified foods (GMOs) were not covered by the
1990 Directive.(5) This was resolved with
the adoption of the 2003 EU Directive which covers GMOs.
A
law implementing the requirements of the EU Directive on
the re-use and commercial exploitation of public sector
information (2003/98/EC) was adopted in November 2005.(6)
Separate bills are also necessary for each of the states
and thus far have been adopted in Vienna and Carinthia.(7)
The
Federal Archives Act sets rules on the preservation of official
documents.(10)
The
nine Austrian states have FOI laws that place similar obligations
on their authorities.(11) There are also
laws in the states on providing access to environmental
information.(12)
3.
Umweltinformationsgesetz (Law on access to information
on the environment), BGBl. No 495/1993, BGBl. No 137/1999.
4.
Case C-86/01. See European Commission, "Access
to Environmental Information: Commission moves against Austria,
" 13 September 2000.
5.
Case C-316/01, Judgement of the Court, 5th Chamber,
12 June 2003. Opinion of Advocate General Tizzano, Case
C-316/01 Dr Eva Glawischnig v Bundesminister für soziale
Sicherheit, 5 December 2002.
10.
Federal Archives Act, Federal Law Gazette I No 162/1999.
11.
Federal
Fundamental Act dated 15 May 1987 on the duty to grant information
on the part of the administration of the Laender and themunicipalities
(Fundamental Act on the duty to grant Information). http://www.ris.bka.gv.at/erv/erv_1987_286.pdf
See Council of Europe, Responses to the Questionnaire on
National Practices in Terms of Access to Official Documents,
Sem-AC(2002)002 Bil, 18 November 2002.
12.
See
Eva Glawischnig & Georg Gunsberg, "Austria: Legal
and Institutional Framework and Practices for Public Participation"
in Doors to Democracy: Current Trends and Practices in Public
Participation in Environmental Decisionmaking in Western
Europe, Regional Environmental Centre, June 1998.
The
Constitution provides for full public access to
government information. Authorities can only deny
such access if doing so would violate substantial
data protection rights or would involve information
that is of "national security interest."
Petitioners can challenge denials before the Administrative
Court. Application of this law has been largely
uncontroversial.
1)
Voice and Accountability: 1.25
2) Political Instability and Violence: 1.18
3) Government Effectiveness: 1.76
4) Regulatory Burden: 1.41
5) Rule of Law: 1.76
6) Control of Corruption: 2.10
