In its ruling A‑4286/2022 of April 20, 2026, the Federal Administrative Court largely dismissed and partially upheld a complaint by the Digital Society against the Federal Intelligence Service (FIS):
The focus is on the exception to the principle of publicity under Art. 67 NDG and the question of whether this exception also covers unlawful activities, which the FAC affirms.
The starting point is a request from the Digital Society for access to two FIS documents, a processing regulation and an analysis of the legal basis for a facial recognition system of the FIS. The FIS had refused access on the basis of Art. 67 NDG.
The FAC interprets Art. 67 NDG („The [BGÖ] does not apply to access to official documents relating to the procurement of information under this Law“) far out. The Concept of information procurement covers the procurement of personal data, the recording of biometric characteristics and data comparison on the way to the intelligence product. Documents whose content allows conclusions to be drawn about the procurement of information are also exempt from the FSA:
7.4 In summary, the interpretation of Art. 67 NDG shows that it is this is a special provision within the meaning of Art. 4 let. b BGÖ.that deviate from the requirements of the Public Access Act for the provides for access to certain information: […]
In addition, the concept of information procurement in the applicationof Art. 67 NDG should be given a broad understanding; the term includes not only the procurement of data but also further data processing.to fulfill the tasks in accordance with Art. 6 NDG. Thefrom the principle of publicity also applies to documents whose inconclusions about the procurement of information by the lower court.possible (see judgment of the Federal Supreme Court 1C_222/2018 of March 21, 2019 E. 4, insesp. E. 4.5).
However, Art. 67 NDG does not apply to entire documents, but to only information with a certain information content out. The FAC examines this separately for both documents:
- The processing regulations contain information on the purpose, mode of operation, embedding in the system landscape, processed personal data, access rights, data security and data protection. As a whole, it relates to the procurement of information, which is why access should be denied overall.
- Analysis of the legal basis, point 1 (“Initial situation”): Again, the FAC denies access because this section describes operational and technical capabilities in the area of facial recognition.
- Analysis of legal bases, points 2 – 7: This section concerns legal bases, gaps, proposals, consequences and recommendations. No exceptions apply here, which is why access must be granted in this respect.
Art. 67 NDG also applies if the information is obtained unlawfully. However, the FAC expressly leaves open how a decision should be made if a measure “obviously violates fundamental rights in a blatant manner”:
As explained above, the interpretation of the law has moved away from the idea ofthat it is not the wording alone that constitutes the norm, but that theThe law is only understood and concretized in terms of facts. Thus the Federal Administrative Court in its judgment A‑6444/2020 of November 19, 2025, concluded that the radio and cable reconnaissance as measures for the procurement of information are not sufficiently provide protection against misuse and facilitate the procurement of information insois largely unlawful. If the scope of application of Art. 67 NDG in accordance with the opinion of the complainant on lawful Information procurement limited, would have to be a consequence of the judgment of November 19, 2025, access to all documents relating to the radio and cable reconnaissance, even though the deficiencies are known. and can in principle be remedied by the legislator (cf.of the Federal Administrative Court A‑6444/2020 of November 19, 2025, E. 25, insesp. E. 25.4; cf. differently in the material scope of application of the Öffentlichthe ruling of the Federal Administrative Court A‑683/2016 of October 20, 2016 E. 7.1.3, according to which the public interest in international relationsSwitzerland in the event of a «constitutionally questionable» official action.not to be regarded as worthy of protection in practice and therefore an exception from the principle of publicity within the meaning of Art. 7 para. 1 let. d BGÖ.was justified). Such a result would have been compatible with the Art. 67 NDG is not compatible with the legislator’s assessment. […]. Whether this also applies in the event that a masThe use of the information procurement system is obviously blatantly elecmentary fundamental rights need not be assessed here […].
The FAC leaves the Question of the legality of the processing of biometric data by the FIS open, but has considerable doubts:
- The recording of biometric characteristics and the comparison with existing databases each constitute independent data processing that seriously impairs the right to informational self-determination (Art. 13 para. 2 BV) and the right to privacy (Art. 8 ECHR).
- A sufficiently specific basis in a formal law is therefore required, which must also appropriately limit the reason for and scope of the data comparison and the duration of the processing and provide for independent monitoring.
- Art. 44 para. 1 NDG permits the processing of particularly sensitive personal data, and Annex 1 VIS-NDB mentions photographs. However, photos in themselves are not biometric data, which is why the authorization to process photos does not imply authorization to process biometric data.
- There is no basis for biometric procedures comparable to Art. 3 para. 7 VIS-NDB (OCR technology).