The documents of the Swiss Export Risk Insurance (SERV) on the “Crypto case” remain under seal. Following the Federal Administrative Court, the Federal Supreme Court also considers the Secrecy for foreign policy reasons for justified.
Three years ago, an SRF journalist unsuccessfully requested access to documents relating to the “Crypto case”. The appeal against this was rejected by the Federal Administrative Court in April 2021 (BVGer A‑4494/2020) – and rightly so, as the Federal Supreme Court has now ruled in its BGer 1C_321/2021 of June 7, 2023 was located.
Two lists containing information on the export of encryption devices were in dispute. As the Federal Supreme Court found at the outset, these were official documents within the meaning of the Public Information Act (E. 3). More precisely, it qualified them as “virtual documents” within the meaning of Art. 5 para. 2 of the Federal Act on Arbitration. This is because the lists had not existed before and were only compiled from older data for the purposes of the conciliation proceedings (E. 3.3).
On the temporal scope However, the concept of document does not have any influence on the public access law (Art. 23 FCO): the creation of a previously merely “virtual” document does not put a new time stamp on it. Decisive remains the “Creation or reception time the recorded information” (E. 4.2). Documents created or received before the entry into force of the Public Access Act (1 July 2006) continue to be excluded. The takeover of old-legal documents qua legal succession does not change this (E. 4.3.2). Consequently, one of the two lists fell out of consideration in advance (E. 4.4).
Although the other list in dispute was subject to the Public Information Act for a certain period of time, its disclosure was precluded for reasons of foreign policy (Art. 7 para. 1 let. d FCO). Disclosure of information in which foreign states have an interest in secrecy is prohibited out of consideration for “the international customs and the state practice” (E. 5.5.3). The public export statistics of SECO do not allow for a contrary conclusion due to the lack of detail (E. 5.3.2). The same applies to the unspecific media reports, especially since these revelations precisely “not on a Revealing act of official Switzerland”(E. 5.2.2). Accordingly, the inspection of the second list had also been rightly refused.
From a methodological point of view, the Federal Supreme Court reaffirmed its published case law on the handling of decisions “political and especially foreign policy content” (E. 5.5.2 m.H.). Accordingly, courts have to decide with regard to the political expediency to impose a certain restraint, but not in legal matters: legally, the decisions “fully verifiable, including the question of whether and to what extent a political component exists at all and whether the leeway has been dutifully used” (ibid.). In view of this, the Federal Supreme Court confirmed for the exceptional circumstances invoked here that the necessary prognosis of disadvantages is of necessity not only on “hard” facts are based on. Whether the bilateral relations within the meaning of Art. 7 para. 1 subpara. d of the Federal Constitution “.can be affected”, resulted not least from “assumptions, presumptions or hypotheses” (E. 5.5.3).
Finally, the Federal Court rejected the possibility of a Anonymization and at the same time denied a violation of the principle of proportionality: “Even if the individual […] Information (recipient state, product type, completion date and order value) may have little significance on its own, their disclosure in the context of the exporter and the recipient state is opposed by overriding public secrecy interests” (E. 6.3). As a result, the appeal was rejected in its entirety (E. 7).
DisclaimerWalder Wyss represented SERV in the present proceedings.