BVGer A‑4494/2020: no insight into “Cryp­to case”.

Swiss Export Risk Insu­rance (SERV) right­ly denied an edi­tor of “Rund­schau” access to its docu­ments. This was deci­ded by the Fede­ral Admi­ni­stra­ti­ve Court on April 20, 2021 (BVGer A‑4494/2020). The lists in dis­pu­te con­cer­ned the Cipher export of Cryp­to AG and Cryp­to Inter­na­tio­nal AG.

In essence, SERV had refu­sed access for three rea­sons: out of con­side­ra­ti­on for Switzerland’s for­eign poli­cy inte­rests (Art. 7 para. 1 let. d of the Fede­ral Act on Export Risk Gua­ran­tees), to pro­tect busi­ness secrets (Art. 7 para. 1 let. g of the Fede­ral Act on Export Risk Gua­ran­tees), and in respect for the pri­va­cy of third par­ties (Art. 7 para. 2 and Art. 9 of the Fede­ral Act on Export Risk Gua­ran­tees). For tho­se docu­ments which had still been drawn up by its pre­de­ces­sor orga­nizati­on, the Export Risk Gua­ran­tee foun­ded in 1934, it con­side­red the Fede­ral Act on Export Risk Gua­ran­tees, which ente­red into force in 2006, not to be appli­ca­ble from the outset.

Fol­lo­wing the pre­vious instance, the Fede­ral Admi­ni­stra­ti­ve Court sta­ted that lists drawn up from older infor­ma­ti­on with a view to con­ci­lia­ti­on pro­ce­e­dings do not, by vir­tue of this alo­ne, fall within the tem­po­ral scope of the Public Infor­ma­ti­on Act (E. 3.3). Such “vir­tu­al” docu­ments in the sen­se of Art. 5, para. 2 of the Code of Obli­ga­ti­ons, in other words no new timestamp. The date of com­ple­ti­on remains decisi­ve (E. 3.1; Art. 23 FSIO).

The more recent docu­ments were sub­ject to the Public Access Act, but their acce­s­si­bi­li­ty fai­led due to the reser­va­ti­on of the Thre­at to for­eign poli­cy inte­rests. In its assess­ment, the court reli­ed in par­ti­cu­lar on the report of the Busi­ness Audit Dele­ga­ti­on on the “Cryp­to case” (BBl 2021 156 ff.). At the same time, it empha­si­zed that the sub­stan­tia­ti­on of such fore­casts “not only on ‘hard’ facts but must neces­s­a­ri­ly also be based on assump­ti­ons, pre­sump­ti­ons or hypo­the­ses that are for­med on the basis of the cir­cum­stances of the spe­ci­fic case.” (E. 5.8). As a result, it con­side­red the thre­at to Switzerland’s for­eign poli­cy inte­rests asser­ted by the com­plainants to be plausible:

In sum­ma­ry […] from a serious risk to assu­me that publi­ca­ti­on of the infor­ma­ti­on con­tai­ned on the list could harm Switzerland’s for­eign poli­cy inte­rests and inter­na­tio­nal rela­ti­ons.” (E. 5.8 f.)

With this out­co­me, it was not neces­sa­ry to exami­ne the remai­ning excep­ti­ons, in par­ti­cu­lar the pro­tec­tion of busi­ness secrets. Anony­mizati­on of the list was also out of the que­sti­on, becau­se this would redu­ce the infor­ma­ti­ve value to such an ext­ent that access could just as well have been denied (E. 5.10.2). The appeal was rejec­ted in its enti­re­ty. Becau­se of the poli­ti­cal explo­si­ve­ness, the Fede­ral Admi­ni­stra­ti­ve Court trea­ted the case as a “cau­se célèb­re” and published a Media release in this matter.

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