- 54% of applications received full access; authorities continue to make considerable use of statutory exceptions.
- Authorities must summarily justify refusals of access; orders can be justified and appealed.
- Interdepartmental “Transparency” working group and Edöb materials should promote uniform, efficient implementation of the BGÖ.
- Recommendations for fee harmonization exist; Parliament is examining free access and partial revision of the BGÖ.
Submitted text
The Federal Data Protection and Information Commissioner (Edöb) presented its 2015 – 2016 activity report on June 27 of this year.
In connection with the implementation of the Freedom of Information Act (FOIA), 600 requests for access to official documents were submitted in 2015, according to the report. However, only in 319 cases (54 percent) did the authorities grant full access to the requested documents. In 127 cases (21 percent), partial access was granted. In 98 cases (16 percent), access was denied completely. These results prompted Edöb to make the following statement: “The transition from secrecy to transparency does not happen easily. All too often, administrations still invoke the exception principle to avoid publishing documents, and without more precise justification. We must keep an eye on this matter.” (“24 heures,” June 28, 2016).
As far as the charging of fees is concerned, the report points out on page 77: “The continuing differences in the handling of fees between the various authorities are striking. While the Federal Chancellery and three departments did not charge any fees at all, four departments charged their time to the respective applicants at least in part.”
These differences are surprising, especially since Article 16 and Annex 1 of the Federal Council’s Public Access Ordinance provide relatively precise specifications regarding these fees.
- Does the Federal Council consider the authorities’ decision to respond fully to applications in only 54 percent of cases to be compatible with the objectives pursued by the Federal Supreme Administrative Court with regard to transparency and public information?
- What measures does the Federal Council intend to take to ensure that a refusal to inspect documents is duly and precisely justified by the competent authority in every case?
- What measures does the Federal Council intend to take to ensure the efficient, rapid and uniform implementation of the FCO in the administration?
- What measures does the Federal Council intend to take to align fees within the administration?
Justification
Statement of the Federal Council
- At first glance, these figures may seem unsatisfactory. However, they need to be differentiated in several respects. First of all, the Federal Data Protection and Information Commissioner (Edöb) has pointed out in several activity reports that the statistics on access requests based on the Federal Act on Freedom of Information (BGÖ) are not very reliable. This is due in particular to the fact that the authorities have different understandings of the term “access request” and that they often do not consider media access requests as requests under the Federal Act on Freedom of Information. It should also be noted that the handing over of redacted documents and the postponement of access to documents are classified as partial grants of access, even though the applicant’s need for information has essentially been met. Finally, the fact that full access was granted in 54 percent of the cases must also be differentiated and considered in the context of the numerous public and private interests that may stand in the way of granting access to official documents according to the FCO. Consequently, the Federal Council is of the opinion that most federal authorities make reasonable use of the legal exceptions and that the goal of transparency has by and large been achieved.
- According to the Public Access Act, the opinion of the authority on an access request also contains a summary statement of reasons (Art. 12 para. 4 FSIO). Depending on this, the authority must specify its opinion in the conciliation proceedings initiated after a refusal or restriction of access to official documents. The final restriction or denial of access to official documents is made by issuing an order (Article 15 of the Federal Administrative Procedure Act). According to Article 35 of the Administrative Procedure Act (SR 172.021), the authorities are obliged to give reasons for their orders. The administrative order is appealable and the statement of reasons can accordingly be reviewed by the courts. The Federal Council is of the opinion that the current legal system is sufficient and that no additional measures are required.
- In its decision of 1 April 2015, the Federal Council decided to create an interdepartmental “Transparency” working group. In addition to the public relations advisors of the departments and the Federal Chancellery, the Federal Archives and Edöb are also represented in the working group. Its main purpose is to ensure efficient and uniform implementation of the FPO in the administration. The Edöb also provides the administration with various aids to promote the uniform application of the FIOA (FAQ, guidelines for the assessment of applications, model rulings, etc.). The law ensures a quick implementation of the FOPA through a fast procedure with short deadlines. However, the evaluation of the BGÖ in 2014 showed that it is sometimes difficult for the Edöb to meet the statutory deadline of thirty days for conducting the conciliation procedure and issuing a recommendation. On January 1, 2017, Edöb introduced a new procedure for handling conciliation proceedings in the form of a one-year pilot project, which should enable it to significantly reduce the duration of the proceedings.
- On 22 November 2013, the General Secretaries’ Conference issued recommendations on the charging of fees for access to official documents.The purpose of these recommendations is precisely to work towards a standardization of administrative practice in the area of charging fees. In addition, Parliament will soon have to give its opinion on the parliamentary initiative Graf-Litscher 16.432, according to which access to official documents based on the Federal Act on Civil Procedure should be granted free of charge. At present, a partial revision of the Federal Law on Civil Procedure is being prepared. The question can be examined in this context.