- Federal Court rejected cantonal complaint and ruled that the Zurich Health Directorate must decide on access to GDK documents, but did not intervene in the complaint due to lack of legitimacy.
- Court found that the principle of public access under IDG/ZH applies regardless of the origin of the documents, but origin remains relevant when weighing up interests.
The Zurich Health Directorate will have to decide anew on the inspection of documents of the Conference of Cantonal Health Directors (GDK). The appeal filed against this by the canton, which warned of a “breach of the dam”, was rejected by the Federal Supreme Court in a judgment of 1C_370/2020 from June 14, 2021.
The Health Directorate had already rejected the request of the association Öffentlichkeitsgesetz.ch in the fall of 2018. The subject matter was invitations and Agenda lists of board meetings of the GDK. The association successfully appealed the equally negative appeal decision to the Zurich Administrative Court. On May 14, 2020, the court referred the matter back to the directorate for additional clarification and a new decision (ruling VB.2020.00112).
Materially, the applicant had invoked the Zurich Law on Information and Data Protection (IDG/ZH). According to this, official documents are basically accessible (§ 20, para. 1), unless another provision or overriding interests conflict with this (§ 23, para. 1). The Health Directorate, on the other hand, took the position that one could not “on the detour via a single canton” could inspect documents of intercantonal bodies (VGer ZH, E. 2.3.3 a.E.). Before the Federal Supreme Court, it accordingly claimed that
“the Canton of Zurich had never issued documents of an intercantonal organization based on the principle of public access. Such a decision would have a Dam break effect, especially since it would introduce the principle of publicity for intercantonal institutions and thus have a general impact on the publicity of intercantonal institutions” (BGer, E. 2.3).
The Federal Supreme Court denied right from the start the Right of appeal of the community (E. 1), because the lower court had previously “only decided that the Health Directorate was responsible for the” (E. 2.4). Obiter, it nevertheless took the liberty of pointing out that the origin of the documents was not decisive for the validity of the principle of publicity:
“Rather, according to Section 20 (1) IDG/ZH, every person has the right to access information held by a public body, ‘[…] irrespective of its form of presentation and information carrier’ (Section 3 (2) IDG/ZH).” (E. 2.4)
At the same time it clarified that these addressee-centered view no extension of the principle of public access to intercantonal institutions (E. 2.4). Also, the origin of the documents was after all “on the question of granting access and, in particular, on the balancing of interests.” of significance (E. 2.5).
As a result, the Federal Supreme Court did not intervene in the appeal of the canton for lack of legitimacy (E. 3) and recommended itself for the case that “the lower court finally grants the request for inspection at issue in the present case.” (E. 2.5).