Motion Leutenegger-Oberholzer (08.3852): Federal data collections. Right to information
Rejected (03.03.2010)
Submitted text
The Federal Council is requested to ensure that in all federal data collections, the persons concerned have a right of access to the data collected in accordance with Articles 8 and 9 of the Federal Data Protection Act. In particular, the restriction on the right to information in the Federal Offences System in Article 8 and Article 11(6) of the Federal Act on Federal Police Information Systems and Article 18 BWIS must be adapted accordingly.
Justification
The Confederation maintains various data collections on individuals for security policy reasons. Experience with the Fichenscandal of the eighties/nineties has shown that collections of personal data involve the risk of false entries and inefficiencies. For the persons concerned, the entries can have serious consequences. It is therefore all the more important that the person concerned has an individual right to information. This also makes corrections possible.
Various laws now only provide for a so-called indirect right of inspection, which actually does not allow any inspection at all. The indirect right of inspection has not proven its worth. The case of the fiched councillors from Basel-Stadt also shows once again that without the right of inspection, corrections to incorrect entries cannot be made, as the accuracy of the entries cannot be verified. This also fundamentally calls into question the quality of the data collections.
It must therefore be ensured that in all data collections, the persons concerned are granted a right to information in accordance with the principles of the Data Protection Act. Article 9 of the Data Protection Act also provides sufficient safeguards for security-related data. Other European countries, such as France, also have a fundamental right of access for data subjects to the data collected about them.
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h1>Statement of the Federal Council
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According to Article 8 of the Federal Act on Data Protection of 19 June 1992 (FADP, SR 235.1), any person may request information from the owner of a data collection as to whether data about him or her is being processed. The right to information is a basic principle of data protection, which enables the person concerned to check the data with regard to the lawfulness of the acquisition, the preservation of good faith and proportionality in the processing as well as the accuracy of the data (Message FADP, BBl 1988 II 433). In certain cases, however, the provision of information is restricted, in particular if overriding private or public interests conflict with such provision or if a law in the formal sense so provides (Art. 9 FADP).
In the Federal Act on Measures to Safeguard Internal Security of 21 March 1997 (BWIS, SR 120), the right to information has been restricted for some time; its Article 18 establishes a merely indirect right to information. The restriction of the right to information was recently discussed in detail again on the occasion of the creation of the Federal Law on Federal Police Information Systems of 13 June 2008 (BPI, SR 361) and, in comparison with Article 18 BWIS, was also established in Article 8 BPI in a weakened form (direct right to information with the possibility of postponing the answer in certain cases) and limited to a narrow scope, namely to federal offences. In addition, Article 11(6) BPI allows personal data to be collected without the knowledge of the data subjects if important law enforcement interests require it. However, if the acquisition of the data is not apparent to the data subject, the data subject must be informed as soon as the reason for secrecy has ceased to exist and this information does not involve a disproportionate effort.
The Federal Council is of the opinion that the direction taken with the creation of Article 8 BPI should be pursued further. It is prepared to review the provisions on the right to information in the BWIS and the BPI in the spirit of the motion and to strive for a regulation in the spirit of the motion. In view of the great importance of the right to information for data protection, any restriction must in any case be limited to what is absolutely necessary in terms of time and subject matter, which is also emphasized by the Federal Supreme Court and furthermore by the European Court of Human Rights (see BGE 125 II 473 E. 4c; ECtHR judgment of June 6, 2006, Segerstedt-Wiberg and others v. Sweden, No. 62332/00, para. 88). Against this background, the indirect right to information is fundamentally problematic. It does not correspond to a genuine right to information. In principle, the Federal Council therefore shares the view of the mover of the motion that in the case of all data collections, including those in the areas of internal security and police information, the persons concerned must be granted a right to information in accordance with Article 8 FADP and that the exceptions to this must be determined within the framework of Article 9 FADP. Any special legal regulations must be kept to a minimum.