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Right to freedom of information stays out of the German constitution

A decision of the German parliament states that the German constitution (Grundgesetz) will not be amended to include a right to freedom of information.

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The amendment, which was proposed by the Greens, was rejected by the ruling Christian Democrat (CDU) and Liberal (FPD) coalition and the Social Democrats (SPD). The Linke, Germany’s left-wing party abstained from the vote.

According to Heise Online, an online news site, the parties were unable to agree the necessary amendments to Germany’s current Freedom of Information Act.

The Green’s had sought to make it compulsory for public authorities to publish records and files on the internet and to curb the powers available to authorities to reject freedom of information requests.

Freedom of information requests

CDU party member, Stephan Mayer remarked, “Most of the freedom of information requests are received from lawyers and journalists [and therefore] serve only personal interests.”

The SPD would prefer to extend Germany’s current Freedom of Information Act, German Member of Parliament Kirsten Löhmann is reported as saying.

Heise.de quotes Petra Pau from the Linke as adding: “The State should know as little as possible about its citizens, whereas the citizen should know as much as possible about the State.”

Pau asserts that there are currently too many legal provisions upon which public authorities can rely in order to avoid fulfilling its duty under the Freedom of Information Act. But she also questions whether simply amending the German constitution will suffice.

Authorities struggle with freedom of information requests

Germany’s Freedom of Information Act entered into force in 2006. In accordance with the act, public authorities are obliged to grant access to information if it is requested. However, the newspaper Die Zeit reports that authorities struggle to fulfil requests.

Die Zeit refers to statistics of the Federal Ministry of Interior showing that 6,077 freedom of information requests were received last year. The authorities apparently fulfilled only half of the requests and in a further 25% requests was only partially fulfilled.

Manfred Redelfs of the journalists’ association, Network Research, remarked, “Many officials fail to understand that this information does not belong to them, but to the public.”

Disproportionate use of resources

Ministry of Interior internal memos obtained by Die Zeit, advise authorities that in certain cases they should: “consider whether a request can be denied on the grounds that fulfilling it would require a disproportionate use of resources.”

The Freedom of Information Act, on the other hand, contains no such provision permitting the denial of freedom of information requests.

Die Zeit goes on to state that, in cases of requests from journalists, reasons for denying the request should be actively sought: “Where Freedom of Information Act requests are received from journalists, all relevant grounds for denial of the request should be explored.”

The Freedom of Information Act provides that requests can be rejected if they concern information relating to the military, international negotiations or national security. These rejection grounds are often interpreted widely.

Limit grounds for rejection

The Federal Commissioner for the Freedom of Information called for limitations to the rejection grounds open to authorities, saying, “Publishing information should be the fundamental principle. Holding information back should be the exception.”

Other tactics employed by authorities to discourage freedom of information requests include demanding high fees for granting requests. Die Zeit noted that one-in-two requests received by the Ministry of Employment cost more than €100. The paper views the intentional use of high fees to discourage freedom of information requests as an abuse of power and notes that it is not something provided for by the Freedom of Information Act.

The original Ministry of Interior memos were published by Die Zeit on DocumentCloud and are available here.

Rafaela Wilde ist Partnerin der Kanzlei WILDE BEUGER SOLMECKE und beratende Justiziarin des Film- und Medienverbands NRW e. V. Sie vertritt bereits seit Jahren erfolgreich die Interessen von Film- und Fernsehproduzenten gegenüber der Landesregierung NRW, den Fernsehsendern und anderen Wirtschaftspartnern.

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