- The FAC confirms that confidentiality agreements prove the intention to maintain confidentiality, but that an objective interest in confidentiality and the relative unfamiliarity of the facts must be examined individually.
- ENSI must triage the documents in a differentiated manner and justify individually which parts of the text are to be withheld in accordance with Art. 7 of the Federal Act; the applicant may be charged for the work and costs involved.
In the present decision A‑1432/2016 of the FAC, it was disputed whether Greenpeace has a right to inspect documents of Axpo concerning the Beznau NPP based on BGÖ. Specifically, this concerned a document of around 950 pages on the wear and tear of the pressure vessel. ENSI, as the lower court, had denied access in its entirety.
The dispute before the FAC was primarily whether the documents in question were Professional, trade or manufacturing secrets within the meaning of Art. 7 para. 1 lit. g of the Federal Constitutional Court. In this context, the Federal Constitutional Court first states that the existence of a Confidentiality agreement with reference to information in the relevant documents documents the subjective intention to maintain secrecy, but that it must nevertheless be examined in the individual case whether there is also an objective interest in maintaining the secrecy of the relevant facts and these facts are relatively unknown. The FAC affirms these requirements in the present case.
As a result, a Weighing of interests between the interests in secrecy and the interest in transparency. In this case, the interests in secrecy prevail, although there is a considerable interest in transparency here in the context of the safety of the Beznau NPP, because the documents affected by the access request are summarized in a document available to Greenpeace and because publication of the trade secrets could cause considerable damage.
In principle, therefore, the document would only have to be disclosed to the extent that it did not contain any business secrets. ENSI had, however, refused access in its entirety, because the Triage effort secret and non-secret information disproportionately high was. Here, the BVGer contradicts ENSI:
[…] a differentiation of information to be carried out in the sense described […] entails extensive work. However, it can be assumed that the legislator will also permit particularly complex requests, provided that they do not virtually paralyze the course of business of the authority.[…]. All in all – in respect of the legislative will for the most transparent administration possible and the widest possible disclosure of information – it is necessary to the expenses claimed by the lower court as well as the respondent, neither the respondent nor the lower court claim that the differentiation of the data is completely impossible. Furthermore, the Costs in principle be charged to the access applicant (Art. 17 (1) FCO).
For the correspondingly required triage, the FAC refers the matter back to ENSI as the specialist authority. The third-party companies affected by the information are to be given the opportunity to comment. ENSI also had to
[…] to take into account that in the case of a non-obvious existence of an exceptional reason within the meaning of Art. 7 para. 1 BGÖ in principle, for each document or text passage for which it intends to restrict or refuse access, it must explain why it considers an exceptional circumstance within the meaning of Art. 7 para. 1 of the Federal Law on Civil Procedure to be fulfilled.[…]. Under certain circumstances, in order to protect interests that conflict with access, it may be necessary paraphrased rationale to evade. However, as a rule, general or fundamental considerations are not sufficient to restrict the right of access under Art. 7 of the Code of Civil Procedure[…].
As part of the reassessment, ENSI must also consider whether access to information within the meaning of Art. 7 para. 1 lit. c of the Federal Act would also be likely to jeopardize Switzerland’s internal or external security:
Whether those categories of information which do not have the quality to be covered by Art. 7 para. 1 let. g Federal Act (cf. E. 5.6.4) and subsequently have to be disclosed, then also not as relevant to safety in the sense of the exception in Art. 7 para. 2 let. c of the Federal Law on Civil Procedure (BGÖ). will have to be examined in a differentiated manner in the course of the reassessment by the lower court and in the light of the above-mentioned case law of the Federal Supreme Court.