Commentary: The end of freedom of information: the legitimate interest of the sovereign

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Point 32 in the reform package put forward by the CDU/CSU and SPD coalition is likely to herald the end of the Freedom of Information Act (IFG) in its current form. Once again, people’s access to information about government and administrative actions is set to be made more difficult. This will also have implications for state legislation and local authority by-laws. It is doubtful, for example, whether Saxony’s Transparency Act and local authority by-laws on transparency and freedom of information will survive this ‘reform’.

How complicated is the IFG?

What does the sentence in point 32 of the reform package – “We will make the complicated IFG more understandable and transparent for citizens” – mean other than that people do not understand the Act? In the context of the following sentence: “In future, we want to focus the rights to information on natural persons”, this almost sounds as though organizations such as “Frag den Staat” are only necessary because individuals cannot cope with the IFG.

This is true to a certain extent, but it is due to the wording of the Act itself. For some people, even the wording in Section 1 – Principles – is confusing. What is meant in paragraph 1 when it states: “A natural person or a legal person under private law shall be treated as equivalent to a public authority within the meaning of this provision, insofar as a public authority makes use of that person to fulfil its public-law duties”? Is that person then a public authority, or what?

Yes, understanding legal wording is not easy; one often gets the impression that it is intended to be off-putting. The provision in Section 10 – Fees and Expenses – is also particularly off-putting for many people. What constitutes ‘simple information’ and how is the administrative cost calculated?

It is therefore not surprising that people are keen to seek help from organizations such as ‘Frag den Staat’. By ‘focusing on natural persons’, the coalition now aims to prevent this.

Will it become easier for people?

Point 32 of the reform package says nothing on this matter, apart from a statement of intent. In any case, however, it will become more expensive to obtain information. Section 10(2) of the Freedom of Information Act (IFG) still states: “Fees shall be set, taking into account the administrative costs, in such a way that access to information under Section 1 can be effectively exercised.” This means that the costs should not prevent access. The reform package states: “We will adjust the IFG fees in accordance with the cost-recovery principle.”

This means that administrative costs will be calculated and charged in a manner that is entirely non-transparent. Research carried out by an intern could, for example, be charged as if a senior civil servant—whose area of responsibility the response falls under—had carried it out themselves. Ultimately, the signature on the response will determine the costs.

Legitimate interest

“In future, we want to focus the rights to information on natural persons who have a legitimate interest in obtaining information and cannot access it through other regulations.” This is stated in point 32 of the reform package.

The term ‘legitimate interest’ does not appear in the currently valid Freedom of Information Act (IFG); perhaps when it was drafted, it was assumed that the people—from whom all state power derives, i.e. the sovereign—have a right to information. In that case, there is no need to prove a ‘legitimate interest’. This is particularly true when the person about whom the information is to be obtained is the one who determines whether the interest is legitimate. This new provision opens the floodgates to abuse by the authorities.

Conclusion: The new provisions under the Freedom of Information Act (IFG) hinder freedom of information. If the authority is to provide the information but doubts the legitimate interest and refuses to disclose it, how is an individual supposed to defend themselves against this? How is one supposed to challenge ‘cost-covering’ fees that have been determined in a non-transparent manner?

Yes, the IFG is becoming ‘simpler’. Due to the restrictions on organizations such as ‘Frag den Staat’, which are no longer entitled to the disclosure of information, the amount of information released will fall. The number of refusals will rise and the number of requests will decrease. This will make things easier for federal authorities and other federal bodies and institutions.

This reform of the IFG safeguards the knowledge of those in power, prevents corruption from coming to light and hinders a significant degree of democratic participation. That is probably the plan behind it.