[German]
Access to information is part of freedom of expression, along with active citizenship - hence they are prerequisites for securing a vibrant and well-informed democracy. NGOs require governments to respect and act in accordance with international and national standards.
First Baltic Sea NGO Forum Lübeck, 28-29 May 2001
To
Bavarian
State Commissioner for Data Protection
Copy: Bündnis
Informationsfreiheit für Bayern, FragdenStaat.de,
Open Knowledge Foundation, Deutsche
Gesellschaft für Informationsfreiheit e.V
Ladies and Gentlemen
I read with interest
"The general right to information in the Bavarian Data
Protection Act":
https://www.datenschutz-bayern.de/3/auskunftsrecht.pdf
from 2017:
Art. 5 para. 1 sentence 1
Basiv Law (GG) guarantees the basic right of freedom of
information.
According to this, everyone has the right to inform
themselves freely from generally accessible sources...
With the
decree of Art. 36 (since 2018 Art. 39) Bavarian Data Protection Act
(BayDSG), the Bavarian legislature opened the files and
documents
at the Bavarian public authorities - with the exception of those in
Art. 36 Para. 4 Sentence 1
BayDSG mentioned - as generally
accessible sources within the meaning of Art. 5 para. 1 sentence 1
GG.(19).
A source is generally accessible if it is suitable and
intended for providing information to the general public, i.e. to a
group of people who cannot be individually determined. The general
right to information is a right of everyone.
The International Covenant on Civil and Political
Rights (ICCPR) has the status of a law in Germany and must be
consulted when interpreting Article 5 of the Basic Law. This means
that legal recourse is open according to Art. 19 GG Para. 4.
136
states have passed information access laws. Art. 19 ICCPR in
conjunction with Art. 25 GG (general rule of international law) are
also part of German law. According to Art. 20 Para. 2 GG, the legal
practitioner is bound by laws as well as by the provisions of
international law.
The Center for Law and Democracy considered
petitions, file inspection requests and jurisprudence, a total of 27
annexes (1) and sent a detailed complaint to the United Nations Human
Rights Committee (2), based on Article 19 ICCPR and international
jurisprudence, stating the following claims:
Mr. Keim requests that the UN Human Richts Committee provides the following remedies:
Declare Germany to have violated his rights under Article 19 of the ICCPR (International Covenant on Civil and Political Rights).
Declare that Rule 190(3) of the Rules of Procedure of Bavaria is not a justified restriction on the right to information.
Declare that Germany has an obligation either to disclose the opinions of the Bavarian Ministry of Justice and the Bavarian Ministry of Interior which were prepared in response to Mr. Keim’s Petition of 25 October 2007 or to justify any non-disclosure in accordance with Article 19(3), namely by indicating the legitimate interest which needs to be protected by secrecy, by indicating the risk of harm to that interest from disclosure and by showing that this harm would outweigh the public interest in having access to those opinions.
Declare that Germany is under an obligation to ensure that a general legal regime for the right to information is put in place in Bavaria which meets the standards required of such legislation, including by:
• applying broadly
to information and public authorities;
• putting in place
appropriate procedures for requesting information;
•
establishing a limited and human rights compliant regime of
exceptions to the right of access;
• requiring public
authorities to provide reasons for any refusal to disclose
information;
and
• establishing a right to appeal refusals to
disclose to an independent administrative appeals body
This may initially come as a surprise to legal practitioners in Bavaria, but it is solidly based on Article 19 ICCPR, which reads:
1. Everyone shall have
the right to hold opinions without interference.
2. Everyone shall
have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his
choice.
3. The exercise of the rights provided for in paragraph 2
of this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
(a) For
respect of the rights or reputations of others;
(b) For the
protection of national security or of public order (ordre public), or
of public health or morals
How does the administration practice this right
to information in accordance with Art. 36 BayDSG? Unfortunately, I
could not find anything about "general right to information"
(in German Auskunftsanspruch) in the 31st
activity report 2021.
A request
to the citizen service of Bayer. State Ministry of the Interior, for
Sport and Integration, found that "Statistics
on how often the general right to information is asserted against
public authorities do not exist, however."
Since the
right to information is a fundamental and human right according to
Art. 19 ICCPR, it should also be included in the activity reports of
the Bavarian State Commissioner for Data Protection. This is also
popular because of Bavaria's position in the transparency
ranking of the federal states.
Administrative transparency has
a long tradition in Scandinavia and since 1766
in Sweden.
In Norway, the Norwegian
State Administration manages to process around 300,000 file
inspection requests per year with the help of internet-based
tools.
Here it becomes clear that there is still a lot to be done
in order to realize the fundamental right to information in
practice.
Best regards,
--
--
Walter Keim, 12. March
2023
Netizen: http://walter.keim.googlepages.com
Case
Keim Against Germany: No Right to Information Law in
Bavaria:
https://t.co/krZaa1Jyok
http://wkeim.bplaced.net/files/enforce_access_to_information.html
Anlagen:
Petitions, file inspection requests and national case law: http://wkeim.bplaced.net/files/Annexes%20Keim-Germany.pdf
International Law and Jurisdiction Claims: http://wkeim.bplaced.net/files/Walter Keim v. Germany Communication to Human Rights Committee 29 June 2019.pdf
Answer: 17.3.2023: „Finally, I would like to emphasize that I appreciate your interest and your commitment regarding Art. 39 BayDSG“. Despite the lack of an obligation under Art. 59 DSGVO, the Bavarian State Commissioner for Data Protection “would like to pay even more attention in the future to taking the general right to information into account when preparing my activity reports.“
