The FAC had in the present decision of May 22, 2017 a question of the material scope of application of the BGÖ to clarify the situation. The background was requests to the Federal Social Insurance Office (FSIO) for access to a nationwide list of doctors from the Regional Medical Services (RAD) and to names and other data on employees of the IV offices. The FOPH partially refused access and informed the IV offices. As a result, the FDPIC received a larger number of requests for arbitration from affected physicians. Nevertheless, the FDPIC recommended that the FSIO grant access to the names as requested. The FSIO then issued appealable rulings on access, which were contested before the Federal Administrative Court.
Among other things, it was disputed whether the cantonal IV offices are subject to the Federal Administrative Court at all. In this regard, the FAC states that the lower instance, the FSIO, as part of the federal administration, is subject to the Federal Administrative Code, so that in principle there is a right of access to official documents in the possession of the FSIO. The fact that the cantonal IV offices are not subject to the Federal Act does not change this:
5.2 It is probably true that the cantonal IV offices from which the lower court received the aforementioned information are not themselves subject to the Federal Supreme Court […]. However, the fact that information originates from an organization or person that is not itself subject to the FCO does not preclude the application of this law. (cf. Message, p. 1993; regarding information originating from private persons also BVGE 2013/50 E. 5.2). The decisive factor is therefore whether the authority which is in possession of the information within the meaning of Art. 5(1)(b) FCO is subject to the FCO. This understanding results only from the jurisdiction standard of Art. 10 para. 1 FSIO, according to which access requests are to be addressed to the authority “which has drawn up the document or received it from third parties not subject to this Act as the principal addressee”.
This is also the reason why Article 7(1)(e) of the Federal Act permits the restriction, refusal or postponement of access to an official document if relations between the Confederation and the cantons may be affected as a result.
The BVGer thus expressly decides against the message to the BGÖ:
5.3 It must be acknowledged, however, that the Federal Council partly takes a different position in the dispatch. There it is stated that if an organization that is not part of the federal administration makes a document available to the administration within the meaning of Art. 2 para. 1 let. b FCO, then this document in principle only concerns a “public task” to the extent that the organization concerned is itself subject to the FCO. (cf. dispatch, p. 1995). However, this position is not convincing: it contradicts the aforementioned statements of the Federal Council, according to which information from third parties that are not subject to the Federal Act at all can constitute an official document (cf. again Federal Council, p. 1993). It is not apparent why this should be excluded in the case of information from third parties that are otherwise even subject to the FCO. This is precisely what is criticized in the doctrine (cf. Kurt Nuspliger, in: Stämpflis Handkommentar, Öffentlichkeitsgesetz, 2008, Art. 5 Rz. 23). The Federal Administrative Court has already stated that this criticism is justified (see BVGE 2013/50 E. 5.2.4).
The FAC therefore applies the Federal Constitutional Court to the present case. Within the framework of the balancing of interests, it comes to the conclusion that the “considerable public interest in the disclosure of the job start dates and the job percentages of the complainants” clearly outweighs the “strongly relativized” private interests of the complaining physicians. Whether the balancing of interests is based on Art. 7 para. 2 of the Federal Data Protection Act or on Art. 9 para. 2 of the Federal Data Protection Act in conjunction with Art. 19 of the Federal Data Protection Act is left open. Art. 19 FADP, the FAC leaves open; the relationship between these provisions therefore remains unclear.