HISTORICAL BACKGROUND

Article 16 on "Freedom of Opinion and Information" of the Constitution states:

(1) The freedom of opinion and information is guaranteed.
(2) Every person has the right to form, express, and disseminate opinions freely.
(3) Every person has the right to receive information freely, to gather it from generally accessible sources, and to disseminate it.

The Federal Law on the Principle of Administrative Transparency (Loi sur la Transparence, LTrans) was approved in December 2004. It is now scheduled to go into effect in July 2006. The law gives any person the right to consult official documents and obtain information from authorities. The authorities must respond in twenty days.

The law applies to federal public bodies, other organizations and persons who make decisions under the Administrative Procedures Act and Parliamentary Services. The Suisse National Bank and the Federal Commission on Banks are exempted.

The law does not apply to official documents relating to civil and criminal procedures, international judicial assistance and administration, international relations, jurisdiction of public law, and arbitrage, and for access to a dossier by a party in an administrative dispute. Access to documents that contain personal information is regulated by the Federal Data Protection Act. Other laws that declare certain information secret or open beyond the provision of the law are reserved.

There are exemptions if the release would inhibit the free development of opinion; cause harm to: internal or external security, international relations, relations between the federal government and the cantons, political, economic or monetary interests; or reveal professional secrets or break a pledge of confidentiality. The right of access is limited in official documents that affect the personal sphere of a third party when the interest in transparency is not judged to be much greater than the interest of the third party.

If the request for information is limited, changed or denied, or delayed beyond the deadlines, requesters can ask the Federal Data Protection and Information Commissioner to mediate. The Commissioner must issue a recommendation within thirty days. The Commissioner (formerly the Federal Data Protection Commissioner) also can conduct oversight of public bodies and comment on federal legal projects and measures of the national government that affect transparency.

The Federal Data Protection Act of 1992 gives individuals a right of access to obtain and correct their personal information held by federal public and private bodies. It is enforced by the Federal Data Protection and Information Commissioner. Most of the 26 Cantons also have their own data protection law and data protection commission.

Under the Federal Law on Archives, archives over thirty years old are public. Personal information is protected for fifty years. The Conseil Federal can also intercede to delay the opening of files.

Many of cantons are also working on transparency laws. The Canton of Berne adopted its Law on Public Information in 1993 and Geneve in 2002. In Soleure, there is combination FOI and data protection act. There are also pending efforts in Jura, Neuchâtel and Sierre-Région.

Disclosure of state secrets is prohibited by the Penal Code and the Military Penal Code. Newspaper SonntagsBlick is currently being investigated by the military for violations of the Military Penal Code for publishing in January 2006 an intercepted fax from the Egyptian Government to its London embassy about possible CIA prisons in Eastern Europe.