In 2016, the current Federal Office for Customs and Border Security (BZG) had a Administrative criminal investigation on suspicion of violation of customs legislation in the importation of works of art for one of the persons concerned was discontinued without consequence. The latter received a copy of the relevant investigation files with redacted transcripts of interrogations of third parties. The investigations against other persons concerned were continued.
The person concerned subsequently demanded the handover of the complete files, in particular the unredacted record of an interrogation of a third party, and an extract of the relevant data from the Information System for Criminal Matters BZG. Apparently, he was of the opinion that the proceedings were based on a defamatory accusation of the interviewee.
The BZG partially refused to provide the information (among other things, with reference to the minutes). An appeal to the director of the BZG was unsuccessful. The person concerned appealed to the Federal Administrative Court, which has now dismissed the complaint. In connection with the same investigation, the person concerned had previously filed a request for inspection, which was rejected by the FAC. had also been rejectedat that time because the investigation was still pending (Art. 2 FADP).
The person concerned had primarily focused on the Right to information of the DSG in accordance with Art. 14 para. 1 of the Ordinance on the Information System for Criminal Matters of the Federal Office of Public Prosecution (ISV-BFD), according to which the right to information in completed criminal proceedings is governed by the DPA and the Criminal Procedure Code, whereas the right to inspect files during the investigation is governed by Art. 26 ff. VwVG.
The BGer confirms the ruling of the BVGer with the following considerations:
- If a request for information from a federal body includes personal data of third parties, in addition to Art. 8 FADP, the special provision on disclosure to third parties of Art. 19 FADP. To a certain extent, this is a general provision on administrative assistance and an implementing provision on general official secrecy.
- Art. 19 para. 1 FADP requires a specific basis for disclosure. If no other basis applies, lit. d requires the recipient to show credibly that the data subject refuses to consent to disclosure in order to prevent the recipient from enforcing legal claims or protecting other interests worthy of protection. That is what the data subject had claimed here – he wanted to examine claims against the interviewee for false accusation. This is not sufficient for the Federal Administrative Court: The fact alone that the customs criminal proceedings and several criminal proceedings against the person concerned were discontinued – apparently also due to the interrogator – does not make claims credible.
- In addition, Art. 19 (4) (b) FADP provides that disclosure is to be refused or restricted if this is statutory secrecy obligations require. That is the case here. The Tax secrecy according to Art. 74 MWSTG is in itself such a basis, as is Art. 110 DBG (so already BGer 1C_541/2014). However, tax secrecy does not protect the administration, but the trust of the taxpayer or third party burdened with a duty to cooperate. Accordingly, it is unclear whether it also applies to information that is not related to an assessment or subsequent collection procedure or is communicated by third parties but does not concern their personal or financial circumstances.
- However, this could be left open, because at least the Secrecy of investigation according to Art. 73 StPO is opposed to disclosure – it could create a risk of collusion, impairment of evidence or for the process of opinion-forming and decision-making and violate private interests of the parties to the proceedings. This also applies if the investigation is entrusted to an administrative authority.
Since nothing could be derived from the right to inspect files either, the BGer dismissed the appeal.
What the FAC unfortunately did not address is the question under which conditions information in a document is to be considered personal data about a specific individual.