BVGer, A‑788/2014: Whist­le­b­lo­wing Report­ing Office

Update August 7, 2016: The judgment was published in sic! 2016, 387 ff., with the key­word “Whist­le­b­lo­wing Report­ing Office”.


The BVGer obli­ges the Swiss Fede­ral Audit Office to decla­re its data files in con­nec­tion with the reports it recei­ves as a whist­le­b­lo­wing report­ing office in accordance with DPA 11a II, and it must draw up pro­ce­s­sing regu­la­ti­ons in accordance with DPA 21. The con­cept of data coll­ec­tion was the main point of contention.

The judgment is final; the Fede­ral Supre­me Court has respon­ded to the SFAO’s appeal (see the NZZ) did not occur (1C_66/2015).

5.4.1 Accor­ding to the mes­sa­ge, the data coll­ec­tion should be a set of data rela­ting to more than one per­son. The data coll­ec­tion can be orga­ni­zed and struc­tu­red in very dif­fe­rent ways. The decisi­ve fac­tor is that the data belon­ging to a par­ti­cu­lar per­son can be found (Fede­ral Coun­cil Mes­sa­ge of 23 March 1988 on the FADP, BBl 1988 II 413, 447 et seq. [her­ein­af­ter: Mes­sa­ge on the FADP]). In the doc­tri­ne, in con­nec­tion with the cri­ter­ion of acce­s­si­bi­li­ty, the view is some­ti­mes expres­sed that data coll­ec­tion is a com­pa­ra­b­ly open defi­ni­ti­on, so that even data sets that were not crea­ted as data coll­ec­tions per se and do not have their own reco­gnizable pur­po­se, such as the hard dri­ve of a PC or the Inter­net per seHowe­ver, data that can be inde­xed by per­son on the basis of the tech­ni­cal pos­si­bi­li­ties are to be qua­li­fi­ed as data coll­ec­tions. In this sen­se, any elec­tro­nic data car­ri­er, such as a hard disk, a flop­py disk or a CD-ROM, would qua­li­fy as a car­ri­er medi­um of a data file, pro­vi­ded it ser­ves to store per­so­nal data and per­so­nal access is pos­si­ble by means of a cor­re­spon­ding pro­gram, which is the stan­dard case with office pro­grams. Thus, a coll­ec­tion of elec­tro­ni­cal­ly stored text docu­ments regu­lar­ly con­sti­tu­tes a data file within the mea­ning of the FADP. The­r­e­fo­re, only dis­or­ga­ni­zed and scat­te­red files of paper docu­ments could not be con­side­red data coll­ec­tions (cf. Blech­ta, BSK DSG/BGÖ, n. 81 on Art. 3 FADP).

This broad under­stan­ding of the legal defi­ni­ti­on of Art. 3(g) DPA is right­ly cri­ti­ci­zed in the lite­ra­tu­re: With today’s search pro­grams, it is usual­ly pos­si­ble to search the con­tents of all hard disks for a person’s name, for exam­p­le. Moreo­ver, it is also likely that per­so­nal data is pre­sent on num­e­rous hard disks. Howe­ver, it will hard­ly have been the inten­ti­on of the legis­la­tor – nor does it cor­re­spond to the mea­ning and pur­po­se of the Data Pro­tec­tion Act – that with a broad inter­pre­ta­ti­on of the term, num­e­rous data sets, such as the hard disks of com­pu­ters, are con­side­red to be data coll­ec­tions, with the con­se­quence that the­se are sub­ject, for exam­p­le, to the right of infor­ma­ti­on under Art. 8 FADP or – as here – to the obli­ga­ti­on to regi­ster under Art. 11a FADP. (cf. Rosen­thal, Hand­kom­men­tar DSG, para. 82 on Art. 3 DSG). Rosen­thal the­r­e­fo­re wants the term to be under­s­tood more nar­row­ly and the­r­e­fo­re sets out the fol­lo­wing requi­re­ments that must be met cumu­la­tively in order to speak of a data coll­ec­tion within the mea­ning of the FADP: It must be per­so­nal data of more than one per­son act. The­se must held and – by neces­si­ty – from the more than one data set exist to be con­side­red a coll­ec­tion. Fur­ther­mo­re, the cate­go­ries of per­so­nal data that occur in the data coll­ec­tion must be pre to defi­ne in a gene­ral-abstract way. The indi­vi­du­al records must have a the­ma­tic, logi­cal con­text and the coll­ec­tion a cer­tain Resi­stance have. Final­ly, the per­so­nal data must be bro­ken down by data sub­ject. acce­s­si­ble be. A data coll­ec­tion then only covers data files to the ext­ent that they are fac­tual­ly sub­ject to a Uni­fi­ed rule (cf. Rosen­thal, Hand­kom­men­tar DSG, para. 83 ff. on Art. 3 DSG).

5.4.2 Whe­ther the­se cri­te­ria should be adhered to in the final ana­ly­sis can be left open at this point.; as will be seen, the pre­sent is so or other­wi­se to be assu­med from data coll­ec­tions within the mea­ning of the law.

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