On May 18, 2020, the FAC ruled that audit documents of the audit for tax experts are in principle subject to the Federal Public Information Act (FPA) (A‑458/2020).
This applies specifically
- for a “anonymized overview of the results achieved by all candidates, respectively statistics from which it can be seen how many candidates have achieved which grades”, and
- for “any Confidentiality declarationsconfidentiality obligations or similar documents, which are required by the Exam Authors and Exam correctors/experts(have been) given or signed, in particular by [specifically named persons], or to the observance of which they have committed themselves or are committed”.
First of all, the supporting organization Tax Experts, which forms the sponsoring body for the professional examination for tax experts on behalf of the Confederation and conducts the examinations, falls within the personal scope of application of the Federal Tax Code. Also, the mentioned documents are official documents in the sense of BGÖ:
6.3.3 Contrary to what the complainant states, the documents that exist or can be created are all in connection with the proceedings at first instance in the matter of the written diploma examination for tax experts 2018. This applies to the overview of the marks obtained by all candidates […] as well as to the declarations of secrecy of the examination authors and correctors/experts responsible for the examination “Taxes in writing 2018”, especially since the complainant explicitly requests the declarations of ten persons mentioned by name. These are not merely general information, which are only related to the proceedings in a broader sense (see the judgment of the FAC A‑1784/2014 of April 30, 2015 E. 3.2.1). The requested documents are thus in principle subject to the material scope of application of the Public Access Act (Art. 3 para. 1 let. a BGÖ e contrario).
However, the (contested) audit decision in the specific case was still not legally bindingfor which reason the Federal Law on Civil Procedure pursuant to Art. 3 para. 1 lit. b (no application to “the inspection of a party into the files of first-instance administrative proceedings”; cf. Art. 8 para. 2 FSIO for persons not involved in the proceedings) did not apply.