Dr. Christoph Bruch FoI in Germany Six months after Implementation

1. Dr. Christoph Bruch • FoI in Germany • Six months after Implementation

2. Contents • TI Secretariat: Corruption Perception Index • TI Germany • FoI in Germany

3. TI Germany: The Organisation • Registered non-profit, tax exempt associationFounding year: 1993 • Current membership (6/2006) • 538 individual member • 32 corporative members • Steering committee: honorary membership • Office • Location: Berlin • Staff • Managing director (full time, paid) • 2 members of staff (part time, paid) • 2 interns (full time)

4. TI Germany: How do we finance? • Revenue 2004: ~ EUR 180.000 • 77% Membership fee + membership donations • 26 % Individual members • 51 % Corporate Members • 15 % Public funding incl. Monetary fines • 8 % Donations by non-members

5. TI Germany: Regional Activities • Active regional groups in • Berlin • Hamburg • Lower-Saxony • North Rhine-Westphalia • Hesse • Bavaria

6. TI Germany: Corporative Members (sample) First city to joinTI-Germany ascorporate member.

7. TI Germany: Corporate Members • Corporative members have to commit to certain standards to be accepted • Corruptive action has to ostracised • An internal anti corruption policy has to put in force • Staff has to be educated in measures to prevent corruption • The company is to raise corruption as a topic within its trade association • The Corporate Member Forum meets biannually

8. TI Germany: Working Principles • Transparency does not investigate cases of alleged corruption. • It cannot do the job of crown prosecutors, journalists, auditors, and audit courts. • We advocate conditions that are to help these professionals to do their job more effectively. • Lobbying for administrative transparency is part of this campaign.

9. TI Germany: Aims and Means • Aims • Keep corruption on the public agenda • Sensitize and inform the public • Built structures that prevent or raise the costs for corruption • Means • Use of windows of opportunity • Public relations (Conferences, press releases) • Lobbying (access laws, black lists, transparent contract awarding) • Documentation and research

10. TI Germany: Key Activities (samples) • TI Germany advocates • Build-up of corruption prevention measures (i.e. FoI laws) in public administration • Setup special corruption crown prosecution services • Setup of register of companies which have been found guilty of corruption • Limitation party nepotism when filling vacancies in public administration and public companies • Effective rules against bribing of political delegates • Support of German Companies in their effort to fight corruption (Codes of Conduct, Corporate Governance)

11. Contents • TI Secretariat: Corruption Perception Index • TI Germany • FoI in Germany

12. States with FoI Act • Years in which the acts were passed: • 1998 Brandenburg • 1999 Berlin • 2000 Schleswig-Holstein • 2001 North Rhine-Westphalia • 2005 Federal Government • 2006 Hamburg • 2006 Bremen • 2006 Mecklenburg-Western Pomerania

13. States with FoI Act • Parties which passed the act in each case: • Brandenburg SPD, PDS • Berlin SPD, PDS, Greens • Schleswig-Holstein SPD, SSW, Greens • North Rhine-Westphalia SPD, CDU, FDP, Greens • Federal Government SPD, Greens, FDP abstained • Hamburg CDU • Bremen SPD, CDU • Mecklenburg-Western Pomerania SPD, PDS

14. Constitution of Brandenburg • Of all German state constitutions only the one of Brandenburg encompasses a foi clause: • Part III: Rights of Political Participation • Article 21: Right of Political Participation (Paragraph 4) • According to the law, everybody has the right of access to files and other official documents of agencies and administrative institutions of the state an the local authorities, as far as predominant public or private interests do not prevail.

15. General Administrative Regulation on the Material and Organizational Protection of Classified Information (1949) State press laws (1950s) Fed. + state Data Protection Acts (starting 1970, informational self-determination) Administrative Procedure Act (1976, rule of law, fair trail) Stasi Files Act (1991, access to GDR secret police files) Environmental Information Act (1994, Aarhus Convention, 1998) Consumer Information Act (2006, only concerns food and animal feed) Information rights of the lelegislature Other Major Laws governing Access

16. Party Activity: FoI Bill per Year

17. Party Activity: Number of Initiating FoI Bills

18. Civil Society FoI Campaign 2004-2005 • Forming of a Coalition • Writing and presenting of a FoI bill • Cooperation with allies in the Bundestag • Public relations

19. Main Civil Society FoI Activists • Journalists organisations • German Journalists Association (trade union) • German Journalists Union (trade union) • Netzwerk Recherche (investigative journalists) • NGOs • Transparency International Germany • German Civil Liberties Union (Humanistische Union) • More Democracy (direct democracy advocates) • German Society for Freedom of Information • Semi-public organisations • Federation of German Consumer Organisations • Scientology (considered subversive in Germany)

20. Arguments of FoI Opponents • Public administration does not have a secrecy problem • The public is getting all relevant information • Unhindered access will lead to misuse • … and FoI will paralyse public administration

21. Arguments of FoI Advocates • Official secrecy as guiding principle does not reflect current understanding of democracy • Germany disconnected from the rest of the industrialised world in respect to FoI • FoI is a measure against political apathy • Secrecy is a culture medium for mismanagement and corruption • Information rights should not be a journalist privilege

22. What we got • When the federal FoI act was passed, the press called it the • Federal FoI Exemption Act. • Exemption Categories • special public interests • the official decision-making process • personal data • intellectual property • business and trade secrets

23. Exemptions for of Special Public Interests • There is no right of access to information … • 1. if the disclosure of the information could have a detrimental effect on • a) international relations; • b) military or other sensitive security interests of the German Armed Forces; • c) internal or external security interests; • d) control or monitoring duties of financial, anti-trust or regulatory authorities; • e) matters of external financial control; • f) measures to prevent prohibited foreign trade; • g) an ongoing legal proceeding,the right of a person to a fair proceeding orthe carrying out of criminal, administrative or disciplinary investigations;

24. More Exemptions for Special Public Interests • There is no right of access to information … • 2. if the disclosure of the information could jeopardize public safety; • 3. if and as long as • a) the required confidentiality of international negotiations • or • b) agencies' consultations could be impaired;

25. More Exemptions for Special Public Interests • There is no right of access to information … • if the information is subject to • secrecy or • confidentiality regulated by law or by the General Administrative Regulation on the Material and Organizational Protection of Classified Information, • or is subject to a professional or special official secret;

26. More Exemptions for Special Public Interests • There is no right of access to information … • in regard to temporarily acquired information of another public office that shall not be part of the concerned agency's own operations; • if the disclosure of the information would be likely to impair the fiscal interests of • the federal government or • the national insurances;

27. More Exemptions for Special Public Interests • There is no right of access to information … • in the case of information gathered or supplied on a confidential basis, to the extent that the third party's interest in confidential treatment continues at the time the application for access to the information is made; and • in regard to intelligence services and agencies and other public offices of the federal government that perform duties within the meaning of Sec. 10 (3) of the German Security Screening Act.

28. Exemption for the Official Decision-Making Process • (1) The application for access to information shall be rejected for • drafts of decisions and • for work and resolutions made for their direct preparation, • insofar and as long as the premature disclosure of the information would prevent the success of the decision or pending official measures. • Results of evidence gathering and expert opinions or opinions by third parties do not usually serve the direct preparation of a decision pursuant to sentence 1. • (2) The applicant shall be informed when the respective proceeding has been concluded.

29. Exemption for Personal Data (1) • Generally balance of interest test for personal data • Particularly sensitive personal data,i. e. documents concerning the third party's employment relationship,are only available if the third party has consented.

30. Exemption for Personal Data (2) • professional and functional designation • office address and • telecommunications numbers • Name • Title • academic degree • of third parties are accessible • If they provided an opinion in a proceeding as an expert or in a comparable capacity. • of staff are accessible • to the extent that they are the expression and result of official activities and do not fulfil any exceptional circumstances.

31. Exemption forIntellectual Property Business and Trade Secrets • There is no right of access to information to the extent that it conflicts with protection of intellectual property. • Access to business and trade secrets may only be granted to the extent that the party concerned consents.

32. Further Shortcomings of the Fed. FoI Act • It does not set a minimum access standard • Virtually no publication duties • Exemption for Information relevant for fight against corruption • financial, anti-trust or regulatory authorities; • external financial control; • Some fiscal action • Absolute protection for business and trade secrets

33. Implementation Deficits • Not enough staff for Information Commissioner • No FoI education for staff • FoI applications are frequently addressed to staff that usually has no customer contact and ne experience in writing official notifications • Almost no advertisement of the new law

34. Number of Fed. FoI Act Applications (1-6/2006)

35. Main Conflict Points • About 120 were referred to the Information Commissioner • Approximate disperse of the Commissioner’s consultancy according to the origin of applications • 20 % Federal Ministry of Economics and Technologies • 10 % Federal Ministry of Health • 10 % Federal Ministry of Transport, Building and Urban Development • Main contentious issues are business and trade secrets • Slowly cases ob non-reaction raise in number • Conflicts over fees are of less importance

36. Use of FoI Act in Schleswig-Holstein (first 2 years) • About 1150 applications based in FoI act during the first 25 months • 950 more were counted as FoI application although the act was not mentioned by the applicant • No excessive workload was created • The great majority of application was granted fully

37. Use of FoI Act in Schleswig-Holstein (first 2 years)

38. Use of FoI Act in Schleswig-Holstein (first 2 years)

39. Use of FoI Act in Schleswig-Holstein (first 2 years)

40. Use of FoI Act in North Rhine-Westphalia (1. year)

41. Use of FoI Act in Berlin (1. year) • 168 applications • 50% full disclosure • 18 % partly denied • 28 % fully denied • Main reasons for denial • Data protection • Decision-making privacy

42. Examples for the Use of FoI Laws: Federal Government • Contracts between federal government and Siemens, Deutsche Telekom and other to built an electronic system for toll collection

43. Examples for the Use of FoI Laws: Berlin • Access to appointment calendar of governing mayor • Undecided • Justification for denial: Calendar is no file • Access to calculation of water price by semi-public water supply Company • undecided • Access to information concerning a construction project • Granted • Construction Company applies for information in context of law suit for additional payments • According to Agency prime example for misuse

44. Examples for the Use of FoI Laws: North Rhine-Westphalia • Who sponsored the mayors official necklace? • Granted • Access to Information concerning prolonged earthworks • Granted • Information was use to sue local authorities for damages

45. Examples for the Use of FoI Laws: Several States • Schleswig-Holstein • Access to information concerning a construction project • Granted after intervention by information commissioner • Justification for denial • Citizen’s initiative is not a legal person • Speaker of initiative is said to not apply in his own right • several states • Access to names of companies which Under filled food packages • different court decisions in individual states • Agency denied access in every case • Which company cheated its customers was considered a trade secret

46. Future of FoI in Germany • All states without FoI law will pass one in the near future. • All will be weak laws as the federal law sets a low standard and even this standard will mostly not be met. • We have seen the first assaults on FoI laws this year in Berlin and Schleswig-Holstein. This may start a new trend.

47. Future of FoI in Germany • Germany’s federal government does not favour the idea to pass a transparency convention at the Council of Europe. • Berlin just expanded the information rights of its parliament. Delegates of Berlin to private companies fully or partly owned by he city can now be ordered to report to parliament committees.