The FAC had to rule on the access of a journalist to operational data of antenna data from 5G antennas of Sunrise, Salt and Swisscom at OFCOM. The FDPIC had recommended granting access in the stratification procedure under the FCO, and OFCOM had issued a corresponding order. The providers appealed against this to the FAC. The FAC rejects the appeal (Judgment A‑516/2022 of 12 September 2023). The judgment is not final.
The Providers first argued in general terms that the BGÖ serves to control the state, not to investigate companies as market players. This objection is unquestionably justified in the matter. In fact, the FCO – especially in the broad interpretation of the FDPIC and the FAC – leads to the fact that companies that interact with the state are themselves subject to the principle of publicity. To a certain extent, this is in the nature of things, but the question arises whether the FCO should not be interpreted more restrictively. In fact, the protection of private parties lies almost exclusively in the protection of trade secrets, and here the FAC applies a very strict standard. In the present case, the FAC is content with the general reference to the protection of Trade secretswhich “safeguards the legitimate protection interests of private-sector actors.”
Questionable was then the Relationship of Art. 24f TCA to the FCO. According to Art. 24f TCA, OFCOM shall provide information on, among other things, transmitter sites, provided that there are no overriding public or private interests to the contrary. In contrast, the FAC does not regard Art. 24f TCA as a special provision reserved for the FCO (Art. 4 FCO), because the purpose of this provision is to promote transparency. It would be contrary to this purpose to use this provision to restrict access. However, as far as can be seen, the FAC has only dealt with the purpose of of the content of Art. 24f TCA and does not also deal with the purpose of its boundaries. – Art. 22 GeoIV is also not such a special standard, if only because it is a provision of an ordinance.
Nor would access lead to a serious Threat to public safety (Article 7(1)(c) of the Code of Civil Procedure). In contrast to the judgment A‑407/2019 (measuring stations of OFCOM’s radio monitoring network), the network in question does not directly and immediately serve to protect public order, and the locations of the 5G antennas are already public in any case.
Also be no trade secrets concerned. The data affected by the access request is not secret, but public. Coordinates and technology of mobile phone antennas can be found on the federal government’s geoportal, as can transmission frequencies, and further data is public at least from time to time in the context of the building permit procedure. In any case, it is not evident that the publication “could seriously impair the business success” of the providers – here, the Federal Administrative Court follows the well-known case law that access requires a concretely asserted disadvantage, which is usually difficult.
Finally, the relevant information was not within the meaning of Art. 7 para. 1 lit. h of the Federal Law on Civil Procedure. voluntarily communicated because they have to be regularly communicated to OFCOM on the basis of the licenses.
This is followed by explanations on the Data protection law. Until the end of August 2023, the aDSG was applicable to data of legal entities. The FCO had therefore referred to the FADP in Art. 9(2). In the current version, Art. 9 FCO now refers to Art. 36 FADP for personal data and to Art. 57s RVOG in the likewise amended version for data of legal persons. The FAC first had to clarify whether old or new law is applied.
The former was the case:
- In appeal proceedings, the lawfulness of an administrative act shall in principle be assessed in accordance with the law when it was issued, unless new law is more favorable to the appellant or there are compelling reasons for its immediate application.
- Pursuant to Art. 70 FADP, the new FADP does not apply to pending appeals against first-instance decisions prior to its entry into force.
- According to Art. 71 FADP, provisions in other federal decrees that relate to personal data continue to apply to federal bodies for five years after the new FADP comes into force, for data of legal persons. However, this is not relevant in the case of the FADP because it has already been adapted with regard to data of legal persons.
The reference norm of aArt. 9 para. 2 FCO was therefore also applicable. According to this, official documents containing personal data must be anonymized if possible, and if this is not possible, the disclosure must be assessed in accordance with Art. 19 aDSG. According to this “a comprehensive balancing of interests to strike a balance between the public interest in the disclosure of the information sought and the conflicting interests, in particular that of protecting the privacy or the data of the persons concerned.” (BGE 144 II 77). Article 7 para. 2 of the Federal Constitutional Court regulates a similar situation. The FAC again leaves the relationship between the two provisions open:
Since both Art. 7 (2) FCO and Art. 19 (1bis) FADP provide for a balancing of interests, it is justified to weigh the opposing public and private interests against each other without strictly delimiting the two provisions.
In the present case, the public interest in access was to be given greater weight, which is why the FAC dismissed the appeal:
- The right to data protection as well as economic freedom are anchored in the constitution, unlike the principle of publicity. However, this is “not of decisive importance”, and the principle of publicity also contributes to the realization of freedom of information.
- In the case of legal entities, the need for protection of personal data is naturally lower than in the case of natural persons. Here, the interest in protection is primarily safeguarded by the protection of business secrets.
- On the other hand, the need for information regarding 5G technology is great, because since its introduction it has raised “questions and fears among many people”. With a “transparent information policy”, the fears of the population could be countered and acceptance promoted, “which, incidentally, is also in the interest of the complainants”.
- As holders of licenses, the providers have a legal relationship with an authority subject to the Public Access Act, from which they derive significant benefits, which also speaks in favor of access.
However, these considerations boil down to the fact that the media can generate a public interest themselves through their reporting.