- Confidentiality agreements between private individuals and public authorities only fulfill Art. 7 para. 1 let. h BGÖ restrictively, if voluntary, unambiguous and expressly requested.
- Written form and clear verifiability are practically necessary; authorities do not have to proactively inform private individuals of any deviating understandings.
Access to official documents may be denied if a private person voluntarily submits them and the authority has assured their confidentiality (Art. 7 para. 1 let. h FSIO). Nevertheless, not every confidentiality agreement protects against inspection under the Public Records Act. Instructive for this is the Federal Court ruling 1C_500/2020 of March 11, 2021.
In this case, Swisscom had wanted to avert the release of documents to French-speaking Swiss television. The affected party was the Correspondence with the FDPICwho had advised Swisscom under Art. 28 DPA when the latter was confronted with a major data leak in 2017.
It was undisputed that in the telephone conversation of 22 December 2017, the FDPIC had assured Swisscom that the information entrusted to him would be confidential (E. 3.3.1). The point of dispute in the following proceedings was the question of the scope of this “guarantee”.
The FDPIC wanted the assurance given to be understood extremely narrowly, in that it had merely refrained from going public on its own initiative. In its view, the agreed confidentiality was limited to giving Swisscom the opportunity to inform the persons concerned itself – which had also been done with the press release of 7 February 2018. As a result, the principle of publicity would be emptied of its content if the administration could systematically issue free passes in the form of such assurances (E. 3.3.2).
The complainants also argued on the basis of meaning and purpose, in that they saw the agreed secrecy as being deprived of its purpose. In their view, they had been entitled to assume in good faith that the secrecy also covered any BGÖ applications. The contrary assumption was also “absurd” because Swisscom would never have entered into such an agreement in the knowledge that it could be easily circumvented via BGÖ (E. 3.3.2).
The Federal Supreme Court agreed with the opinion of the FDPIC and found that the confidentiality agreement did not meet the requirements of Art. 7 (1) (h) FCO. Such an agreement could only “très restrictive et au cas par cas”(E. 3.2). Based on the Federal Council’s message, the practice of the FDPIC and the unanimous doctrine, it formulated three cumulative requirements for this:
- The information must be provided by a Private individual (and not by another authority equally committed to the principle of transparency);
- The notification must voluntary and are made in the absence of a legal or other obligation (“librement, c’est-à-dire […] sans contrainte”);
- The assurance must unambiguously issued and expressly required be (“expressément accordé […] à la demande explicite”).
The Federal Supreme Court conceded that the legal text does not contain any formal requirement, but in the same breath emphasized that the written form is only necessary for reasons of proof. The Federal Court also clearly rejected the auxiliary argument that the FDPIC should have informed Swisscom in good faith about its apparently deviating understanding:
“L’administration publique n’est en effet pas tenue, de sa propre initiative, d’attirer l’attention des privés sur la confidentialité […].” (E. 3.3.2 a.E.)
The fact that Swisscom had noted its information as “secret” as recently as January 2018 and described it as “of course still confidential” thus proved to be unhelpful. All the more so, as the cadres involved “suffisamment qualifiés en matière de protection des données” and accordingly should not have been content with oral commitments (E. 3.3.2).
Finally, the appeal based on an incorrect weighing of interests pursuant to Art. 7 para. 2 Federal Supreme Court did not succeed either: the lower instance had sufficiently taken into account the interests of personality by anonymizing the information of the employees involved and additionally blacking out a number (E. 4.2). The appeal was dismissed in its entirety.