After six years of discussion it now seems likely that freedom of information law could be enacted in Germany (at a federal level) in the first half of 2005.
After initiatives by civil rights groups, the press, industry, various parties and government bodies, a compromise has been found and fed into the legislation process. The draft is called Gesetz zur Regelung des Zugangs zu Informationen des Bundes (Informationsfreiheitsgesetz – IFG) (the “IFG”) and was discussed by the Federal Parliament on 17 December 2004. If Parliament passes the draft IFG, Germany will be one of the last ‘old’ EU countries to implement law relating to the freedom of information.
Although the IFG is likely to be changed in the course of the legislative process, the draft gives early guidance on the principles of the forthcoming law:
The IFG will generally reverse the current principle of “Governmental Confidentiality” (“Amtsgeheimnis”). Any person may, even without a legitimate interest, request access to information from federal administrative bodies under the draft IFG. The public body will determine the form in which information shall be provided and may charge fees for providing information depending on the efforts involved and the status of the person requesting it.
The Federal Data Protection Officer will be the supervisory authority for rights granted under the IFG.
Despite its general approach, the draft does not apply to certain types of information. Administrative bodies will not be obliged to provide information if publication might have a detrimental impact on specific tasks of public interest, such as:
sensitive interests of the military
control or monitoring duties of financial, competition and regulatory authorities
Access to information can also be restricted because of third party interests. The draft IFG stipulates that the disclosure of trade secrets requires the consent of the respective right-holder or company. In addition, information may not be accessed if there are opposing intellectual property rights.
The catalogue of exemptions is broad and includes various undefined terms. Therefore, the extent of the individual’s rights to access information and the protection of opposing interests will largely depend on case law emanating from the IFG.
Practical Impact: Public Procurement
The IFG will have a significant effect on public procurement as the legislator explicitly aims to reduce corruption.
In Germany, a significant number of government tenders are reviewed at the instigation of a losing bidder. The losing bidder may already access records under the current law (s. 111, Antitrust Act) but it is unclear whether it will also have access to information under the IFG. In particular:
a) Will the IFG apply given that it may have a detrimental effect on the control and monitoring duties of a competition authority?
b) If it is applicable, what will be the scope of the access right under the IFG? If too extensive, access rights may interfere with competitors’ rights and interests to keep their bids confidential.
In any case the IFG can be of practical use. There may be situations where a bidder is filing an action for a revision of the tender process for the sole purpose of obtaining information on the competitor’s offers and/or calculation. Action under the IFG could lead to the same result without having to start a process under s. 111 Antitrust Act.
Freedom of information law would be especially relevant to some sectors although it appears that the legislator is unsure of the exact consequences of the IFG. The draft IFG provides for practical experiences to be considered for up to three years after the enactment. Unless extended, the Act will expire after five years.