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Germany’s Freedom of Information Act (or Informationsfreiheitsgesetz, “IFG”) was passed by the Federal Government in June 2005, coming into force on 1 January 2006.

Background and History

Germany’s constitution (created in 1949 and known as the “Basic Law”) protects freedom of expression and the right to information found in “generally accessible sources” (Article 5) [1]. Essentially the phrase excludes state documents. In 1990, with the reunification of Germany, files created by the Stasi (East Germany’s former security service) were made accessible, and millions of requests for information were submitted [2]. Germany’s history clearly impacted on the decision to release this set of particularly sensitive documents, though state documents as a whole remained inaccessible for the time being.

When Schröder’s government, a coalition of the Social Democratic (SPD) and Green parties, came to power in 1998 a Freedom of Information Act was initially proposed as part of the coalition agreement [3]. However, seven years of delays and conflict were to follow the initial proposal, with the Christian Democratic Party arguing that FOI both compromised privacy and would be expensive to maintain. Adding to this, a conservative majority in the Upper House (Bundesrat) meant that numerous compromises had to be made before a draft of the Law could finally be agreed upon in 2005 [4].

Interestingly, whilst conflict was delaying the progression of the Federal FOI Act, the state (or Bundesland) of Brandenburg passed its own FOI Act in 1998, as did Berlin in 1999 and North-Rhine Westphalia in 2001. Schleswig-Holstein, the Saarland, Hamburg, Bremen and Mecklenburg-Western Pomerania all passed their own FOI laws shortly following the passing of the Federal Law. The Federal legislation provided an example to the remaining states without FOI, and today most of the sixteen have also adopted their own FOI Laws.

Therefore, whilst Germany’s Federal FOI Law is relatively new in comparison to the FOI Acts of other Western democracies, its creation was long anticipated. Germany certainly experienced the “stop-and-go process of FOI reform” [5] seen in other wealthy and stable democracies. For Germany, FOI was not necessarily an urgency (as it can be for recently democratized countries), but more a natural move. Ackerman and Sandoval-Ballesteros (2006) suggest that “internal resistances to transparency from within governments” may explain why a country is late to adopt FOI Laws, though stress that this area is in need of further research [6].

Legislation and Exemptions

The underlying principle of Germany’s “Federal Act Governing Access to Information held by the Federal Government” is that:

“Everyone is entitled to official information from the authorities of the Federal Government” along with “other Federal bodies and institutions insofar as they discharge administrative tasks under public law.” [7]

The Act applies to the nineteen senior federal authorities, such as the Foreign Office and Ministry for Transport, with ‘official information’ referring to every record serving official purposes. The Interior Ministry (BMI) has overall authority, and must maintain a record of the number of FOI requests made to all federal authorities [8]. According to the Act, authorities must index which information is available and publicise this on their website.

Germany’s Act is often described as including “extensive exemptions” [9] and has been criticised by FOI advocates [10]:

  • Requested information can be withheld if it is in draft or note form (including the drafts of rulings).
  • If release of information would have an adverse affect on the following areas, it can be withheld: international relations, military interests, internal and external security, the monitoring tasks of financial authorities, ongoing legal, criminal or administrative proceedings and preventing illicit foreign trade (though this list is not exhaustive).
  • Requested information can be withheld if its release would endanger public safety.
  • Information which is tied to an obligation of secrecy or confidentiality can be withheld.
  • Information held temporarily by a Federal authority can also be withheld.
  • With regard to personal data, access can only be given if, 1) the interest of the request outweighs the interest of the person or 2) the other gives consent for their personal details to be released.
  • Finally, intellectual property is excluded from FOI requests, as are business secrets (unless the subject consents to its release).

As is the case in the UK, Germany has a separate Law relating to public access to environmental information. Whilst Germany signed the Aarhus Convention in 1998, it was not ratified, and in 2005 had to revise its law in order to compy with EU standards on access to environmental information [11].

Significantly, in April 2006 it was announced that the Holocaust archives would be made accessible.

Operation

Each Federal authority decides upon the processes to access information they hold. Following a request, information can be imparted orally, in writing or electronically [12]. A request must be answered within one month of its being made, whether it has been granted or rejected. Requesters must pay fees which are set out by the BMI, although basic information can be provided free of charge.

Following the creation of the FOI Act, Germany’s Federal Data Protection Commissioner Peter Schaar also took on the role of FOI Commissioner [13]. The Information Commissioner and his Office must deal with general inquiries and endeavour to resolve complaints. The Commissioner exercises huge influence over the public authorities and agencies subject to FOI. Each state also has its own Data Protection Commissioner (who also takes on the role of FOI Commissioner if a State FOI Law has been passed).

FOI in Germany got off to a very slow start, with German citizens making very limited use of their new access to information [14]. In the year following the creation of the Law only 2,278 requests for information were made. This figure is low, particularly when compared to other countries who have also passed FOI laws in recent years [15]. Because of low media attention and little effort by the government to promote the Law, its passing was “low-profile” [16], and seemingly Germans were unaware of their new found right to information.

Within the first year of its creation, FOI was mostly used by private individuals [17], with the media and members of the Bundestag also making some, though not many, requests.

Recent developments

In August 2011 Open Knowledge Foundation developed “Frag den Staat” (“Ask the State”) [18]. Based on the UK’s ‘Whatdotheyknow.com’, the website provides an easy way for FOI requests to be made in Germany. Because use of Germany’s FOI has been so minimal since 2006, the website was established in the hope that it would make people more aware of their right to access information and encourage people to make requests. Furthermore, by publicising all responses to requests, the website will make information accessible to all (not just the requester) at the same time as easing the burden on public authorities.

In July 2010 the State of Berlin amended its FOI Act, allowing citizens to access information relating to “public-private partnerships” i.e. contracts between the State of Berlin and private contractors [19]. The change was made to increase transparency of decisions made and measures taken by public authorities and was sparked by the partial-privatisation of the agency which owned the city’s water supply system and works in 1999.

References

[1] Germany’s “Basic Law”

http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html

[2] Banisar D., 2006. Freedom of Information around the world: a global survey of access to government information laws: http://www.freedominfo.org/documents/global_survey2006.pdf

[3] European Digital Rights., 2004 http://www.edri.org/edrigram/number2.14/akten

[4] FreedomInfo., 2005 http://www.freedominfo.org/2005/08/german-federal-data-protection-commissioner-to-become-freedom-of-information-commissioner/

[5] Ackerman, J. M. and Sandoval-Ballesteros, I. E. 2006. The Global Explosion of Freedom of Information Laws, Administrative Law Review, 58 (1), 85-123, p. 113

[6] Ackerman, J. M. and Sandoval-Ballesteros, I. E. 2006. p. 113

[7] Text of Germany’s FOI Act:

http://www.gesetze-im-internet.de/englisch_ifg/englisch_ifg.html#IFGengl_000P1

[8] Rundbrief 1/2007. The German Federal Freedom of Information Act one year on: Making sense of the numbers

[9] Banisar D., 2006.

[10] FreedomInfo., 2005 http://www.freedominfo.org/2005/08/german-federal-data-protection-commissioner-to-become-freedom-of-information-commissioner/

[11] Banisar D., 2006.

[12] Rundbrief 1/2007. The German Federal Freedom of Information Act one year on: Making sense of the numbers

[13] FreedomInfo., 2005. http://www.freedominfo.org/2005/08/german-federal-data-protection-commissioner-to-become-freedom-of-information-commissioner/

[14] Schwanitz, T., 2007. In First Year, Germany’s Federal Agencies Struggle to Adapt to FOIA: But Requesters Off to Slow Start as Well. http://www.freedominfo.org/2007/06/in-first-year-germanys-federal-agencies-struggle-to-adapt-to-foia/

[15] Schwanitz, T., 2007

[16] Banisar D., 2006.

[17] Fanning, M., 2007. The German Federal Freedom of Information Act one year on: Making sense of the numbers. IFG-Rundbrief 1/2007

[18] Right2Info, 2011 http://right2info.org/news/germany-civil-society-website-makes-it-easier-to-ask-for-government-information

[19] Dix, A., 2011. Proactive Transparency for Public Services: the Berlin Model http://www.freedominfo.org/2011/10/proactive-transparency-for-public-services-the-berlin-model/

Page last modified on 30 may 12 15:26

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