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AUGUST 2005 Under the new German Freedom of Information Law, which will enter into force on January 1, 2006, the current Federal Data Protection Commissioner Peter Schaar will also assume the job of Federal Commissioner for Freedom of Information. Schaar has emphasized the importance of his new position to the successful implementation of the new law:
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JULY 2005 The Bundesrat, the upper house of the German parliament, voted today to pass the Federal Freedom of Information Act, long promised and sought by the ruling coalition of Social Democrats (SDP) and Greens. The Act was approved by a narrow margin in the Bundestag last month, and its supporters feared that the Liberals (FDP) would attempt to block passage in the Bundesrat, which is composed of representatives of the state governments. This delay shortly before a general election would likely have killed the proposed Act. Rather than following the recommendation of the Internal Affairs Committee to stall the Act in mediation, the FDP reversed its position, seeking to emphasize their support for civil rights in light of the upcoming election. Leaders in the Bundestag pressured the state governments not to stand in the way of freedom of information. The Act will take effect at the start of 2006. Despite guaranteeing a general right of access to government information, the Act contains several strong exceptions that have been criticized by freedom of information advocates. Exceptions apply where disclosure of a document might have adverse effects on public safety, national security, or international relations. The Act also exempts records of regulatory authorities on financial and business competition matters as well as broadly protecting the "fiscal interests of the federal government." With regard to confidential business information and intellectual property information, the Act mandates that the company gives its permission before the government may release such information. In the case of personal information, the authority that holds the record may weigh which interests are more significant—those of the requestor or of the individual concerned—in determining whether to release the record.
The German Bundestag (Parliament) passed the Federal Freedom of Information Act on June 3, 2005, after nearly seven years of political conflict and protracted delays. First proposed by the governing coalition in 1998, it was not until December 2004 that the freedom of information bill was read in the Bundestag for the first time. The Act will now be considered in the Bundesrat (Senate) on July 8, but some press reports and commentators have warned of plans by the conservative majority in the upper house to "bur[y]" the law. In assessing the merits of the new law, freedom of information commissioners in the four German states with existing laws caution that although it is "a step in the right direction," the "numerous compromises" necessary for an agreement have resulted in an overly restrictive law.
View the text of the Federal Freedom of Information Act [German] (as updated 1 June 2005) View
the English
translation (unauthorized) Walter Keim, Letter: Will Realization of Freedom of Information in Germany Fail in the Bundesrat? (June 8, 2005).
Stained Glass: German Political Transparency, The Economist (Jan. 15, 2005). German freedom of information law in the works, eGovernment News (Jan. 14, 2005). Freedom of information law in German Parliament, EDRI-Gram (Dec. 29, 2004). German's Ruling Coalition Gets Serious About Freedom of Information, Heise Online (Dec. 12, 2004). Until now, Germany had been the only major country in Europe (and in fact in a small minority of developed countries worldwide) without a freedom of information law. The European regional Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted on June 25, 1998, guarantees public access to information, transparency, and participation in governmental decision-making on environmental matters. Germany has not ratified the Convention, and in its declaration on the Convention stated: "The text of the Convention raises a number of difficult questions regarding its practical implementation in the German legal system. . . . These questions require careful consideration, including a consideration of the legislative consequences, before the Convention becomes binding under international law. The Federal Republic of Germany assumes that implementing the Convention through German administrative enforcement will not lead to developments which counteract efforts towards deregulation and speeding up procedures." In 1999, commentator Joachim Wieland analyzed the German tradition of secrecy and the absence of a general right of access to records in German Public Law. In looking forward, Wieland predicted the "dawn[ing] of a new information policy" but also warned of the political and administrative difficulties inherent in any effort to install freedom of information as a fundamental value in Germany. Joachim Wieland, Freedom of Information, in Christoph Engel & Kenneth H.Keller (eds.), Governance of Global Networks in the Light of Differing Local Values (Baden-Baden 2000). Arguably, the new FOI law brings Germany into compliance with both the standards of the European Union (Charter of Fundamental Rights of the EU) and with international human rights, articulated in the recent UN, OSCE and OAS Joint Declaration on International Mechanisms for Promoting Freedom of Expression (A "right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation.") More
background and information about freedom of information
in Germany and Europe can be found on
Despite the strides made by the federal government in passing the new law, the continued absence of FOI laws in 12 out of 16 German states means that 70% of the population in Germany is unable to request and receive information from their local public authorities. (See Walter Keim's letter on "Realization of Freedom of Information in German Local States"). Currently, 4 of the 16 German states have their own freedom of information laws (Berlin, Brandenburg, Nordrhein-Westfalen, and Schleswig-Holstein). In response to the introduction of national legislation, freedom of information and data protection authorities of these four states issued a joint press release (in German). They noted that although the new bill is "a step in the right direction," the "numerous compromises" that were necessary to allow its passage in parliament have resulted in an overly restrictive law.
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