2004 freedominfo.org Global Survey Results

2004 freedominfo.org Global Survey Results - Austria
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

Article 20 of the 1987 Constitution requires that government bodies and corporations must provide information to citizens while also setting extensive secrecy requirements:

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 defense, 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 inasmuch as fulfillment 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. (1)

The 1987 Auskunftspflichtgesetz (Federal Law on the Duty to Furnish Information) obliges federal authorities to answer questions regarding their areas of responsibility within eight weeks. (2) It applies to national departments, the municipalities, the municipality federations and the self-governing bodies. They are limited by the secrecy provisions set out in Article 20(3) of the Constitution.

However, the law does not oblige government bodies to provide access to the documents, only that they provide answers to requests for information. If an interest can be shown, then the individual requesting information can obtain copies of the documents under the Code of Administrative Procedures or the Data Protection Act. The nine Austrian states have laws that place similar obligations on their authorities. (3)

The Federal Law on Environmental Information adopted in 1993 implements the European Union Directive 90/313/EEC on the freedom of access to information on the environment for information held by the federal government. (4) The EU brought a case in the European Court of Justice identifying several areas where the convention had not been properly implemented. It dropped the case in 2002 following changes in the national and state laws. (5) In December 2002, the Advocate General of the ECJ issued an opinion in a case brought by a MP that administrative documents relating to the labeling of genetically modified foods were not covered by the 1990 Directive. (6) Austria signed the Aarhus Treaty in June 1998 but has not yet ratified it. There are also laws in the states on providing environmental information. (7)

The Data Protection Act allows individuals to access personal information about themselves held by public and private bodies. (8) It is overseen by the Data Protection Commission. (9)

The Federal Archives Act sets rules on the preservation of official documents. (10)

Notes

1. Austrian Federal Constitutional Laws (selection), Herausgegeben vom Bundespressedienst, Wien 2000. http://www.ris.bka.gv.at/hilfe/erv/law_list.html

2. BGBl 1987/285 (15 May 1987). http://www.kronegger.at/recht/norm/apg.htm

3. 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.

4. Umweltinformationsgesetz (Law on access to information on the environment), BGBl. No 495/1993, BGBl. No 137/1999.

5. Case C-86/01. See European Commission, "Access to Environmental Information: Commission moves against Austria, " 13 September 2000.

6. Opinion of Advocate General Tizzano, Case C-316/01 Dr Eva Glawischnig v Bundesminister für soziale Sicherheit, 5 December 2002.

7. 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.

8. Datenschutzgesetz 2000 (DSG 2000), Austrian Federal Law Gazette part I No. 165/1999.

9. Home page: http://www.bka.gv.at/datenschutz/

10. Federal Archives Act, Federal Law Gazette I No 162/1999.