"Freedom of Information and Data Protection: Legislation and its promotion in Germany"

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Ladies and Gentlemen,
I would like to begin by stressing how grateful I am for the invitation to participate in this workshop of the European Academy for Freedom of Information and Data Protection in Berlin. Firstly, I would like to point out that this is the first time I have given a speech in English on the topic of data protection and freedom of information and, due to the periods I spent in Canada working as a wilderness guide, I am better equipped to talk about bears, moose, caribou and log rafting than about today's topic! I will give it a go though and, in any case, a written translation of the text is available, which can be consulted by anyone who so wishes in order to understand what was meant to be said.

I was particularly pleased to accept the invitation to speak here today, because the title of my speech could hardly be more topical. My statement at this workshop was given the title "Freedom of Information and Data Protection: Legislation and its promotion in Germany". In the German Bundestag, we are currently deliberating on the bill tabled by the parliamentary groups of the governing coalition on a Freedom of Information Act - admittedly only after long and difficult negotiations. This is a bill which would not have been possible without the important support provided by the commissioners for information and data protection, important initiatives and an interesting alliance in support of freedom of information - but this is something I will go into in more detail later on. Only two summers ago, I felt compelled to give the provocative title of "Freedom of Information - Germany bringing up the rear in Europe" to the speech which I gave at a symposium on "Freedom of Information and Data Protection on the Internet" ". We may have needed another two years - put perhaps we can now finally move up from the bottom of the league table in terms of freedom of information.

Data protection and freedom of information are two sides of the same coin and are central elements of modern legislation on freedom of information, which is amongst the cornerstones of our political, economic and civil knowledge and information society. The aim of data protection remains that of guaranteeing self-determination in the fields of information and communication. It is thus a necessary and vital part of our communication framework in a liberal society. Yet, in view of the drastic changes which the knowledge and information society brings with it, increasing attention must be paid to the interaction between data protection law and other areas of law and of life. This becomes most obvious if one recognises the intrinsic link between data protection and access to information and if the apparent contradiction between these two civil rights can be dealt with in an acceptable manner. Bearing in mind the speeches before and after mine - with their specific focus on issues concerning press law and questions of data protection in the media, I would like to concentrate in my contribution to this workshop on the topic of freedom of information and the long way that Germany has come down the path towards a freedom of information law and shall only briefly mention a few aspects of data protection.

The need for a law on freedom of information
Please allow me to begin with a few short remarks on the necessity of a law governing freedom of information - although I assume that those present today are unlikely to fundamentally dispute this necessity. An increasingly important aspect of modern information law is improving the access of citizens, companies and organisations to relevant data and information held by public authorities, for example. But access to information is far more than this; it is a vital element, the very foundation, of democratic participation in state decision-making processes at all levels. As early as 1998, the parties of the governing coalition, SPD and Alliance 90/The Greens, agreed that the citizens' right to free access to information should be anchored in law. In their coalition agreement of 2002, SPD and Alliance 90/The Greens underlined this call once again.

Such a law on the freedom of information could make a significant contribution to the modernisation of state and administration. Expectations of a law on information freedom are high. The expectations which the media, civil society groups and experts in the field have of such a law range from improved access to information for citizens to improvements in combating corruption. Only at first sight does access to information appear diametrically opposed to data protection requirements. In actual fact, the widest possible access to information and the possibility for citizens and firms to act and communicate independently go hand in hand with the strict requirement for consent to be given before the release of highly sensitive data. Data protection is not an instrument designed to hinder communication or interaction; instead, it shapes the conditions for a form of interaction which is acceptable in terms of civil rights, democratic theory, security policy and economics. Modern legislation on data protection and the right to information will have to reflect the new significance of the access dimension and develop it further. Legislation on freedom of information only represents the first step, but it is a fundamentally important one.

The rapid adoption of a freedom of information act at national level - an act which truly earns its name - is also urgently necessary if Germany is to reverse its relegation to the bottom of the league table in the field of freedom of information. More than 50 states across the world have national laws on the freedom of information (or on "access to information") - some of them with constitutional rank. Germany is the only country in the EU and the OECD, apart from Luxembourg, which does not have this type of law at national level. At European level too, concrete measures are now being prepared - since 2001, for example, an EU regulation has stipulated that documents of the Commission, the Council and the European Parliament should, in principle, be accessible to the public. With its directive on public access to environmental information and joint opinion on commercial use of public sector documents (also adopted in November 2003 as a directive and published in the Official Journal), the EU has now also become involved in shaping rights of access to information in the Member States. The directive does not directly oblige the Member States to adopt laws on freedom of information, but it will, in the medium-term, lead to a single market for public sector information within the EU, where countries without laws on the freedom of information will face serious competitive disadvantages.

At Land level, the situation is somewhat different. Laws on access to information already exist and have proved successful in Berlin, Brandenburg, Schleswig-Holstein and North-Rhine/Westphalia; and despite the dire warnings issued, these Länder have not collapsed under a mountain of applications and court cases. In the Länder of Saxony-Anhalt and Bremen, draft laws have also been presented for information freedom laws.

A Federal law on the freedom of information
In line with the coalition agreement, the Federal Ministry of the Interior, which is taking the lead, presented in December 2000 a first draft for a federal law on freedom of information, which it also put on its homepage for discussion. According to the Federal Ministry of the Interior, the law represents a break with the principles of confidentiality of state action which have so far existed, and its aim is to make the administrative actions of the Federation more transparent and thus reinforce the citizens' democratic rights of participation. And this was the central problem, which has repeatedly led to the draft law being postponed: firstly, those affected by the law on information, i.e. the Federal authorities and agencies, had to be convinced of its necessity and of the opportunities it presented. Secondly, some rather unfounded arguments against the law were put forward by some business associations, which, in my opinion, were essentially based on misunderstandings and also ignore the fact that business has been able to profit from and use these provisions to the greatest extent in those countries where laws on access to information have long been successful. In the US, for example, which has a very long history of freedom of information, almost 80% of requests for information now come from companies - including German companies.

The concerns expressed were basically concentrated on two problematic areas: (1) fears that companies would be damaged by the publication of confidential or incorrect information (such as business or trade secrets), as well as fears of an increased administration burden or even a growth in bureaucracy, (2) fears over the confidentiality needed in some areas of public administration (e.g. in the area of internal security or national defence). Of course, these fears are understandable, but I believe that an international comparison shows them to be unfounded. On the contrary in fact. An international comparison of countries with a wide variety of legal and administrative traditions and varying lengths of experience with laws on the freedom of information provides evidence to support the introduction of a German law on freedom of information. Almost all aspects which are still the subject of heated discussion in Germany have long since been solved in other countries (often also after heated debates) and concrete legal provisions have been found which take into account the concerns expressed and could also have served as a blueprint for the German legislative process.

Following the horrific attacks of 11 September 2001 in Washington and New York, other issues were initially on the agenda here too (the first and second anti-terrorism packages in particular). At the beginning of 2002, inter-departmental talks on a freedom of information act were begun once again, but they proved very lengthy. In the run-up to the Bundestag elections in the summer of 2002, the SPD-led Federal Government and the parliamentary groups of the governing coalition agreed on a draft bill to be tabled, but they also agreed at the same time not to table this important legislative proposal during the somewhat heated period of the election campaign. Following the Bundestag elections in September 2002, work on the draft law was begun once again, although the compromise which had already been found was once again called into question by some of those involved.

At the end of 2003 - when agreement seemed even more distant than ever - the parliamentary groups of the governing coalition took the initiative and announced their intention of tabling a draft freedom of information act themselves. The painstaking work of coordination between the parliamentary groups concerned and the departments involved lasted over a year. Concerns have been, and continue to be, expressed about certain aspects, such as concerning the balance needed between the justified interest in access to files and the justified safeguarding of security interests, business or trade secrets, or the question of time limits for the processing of applications.

The commissioners for freedom of information at Land level provided support in these difficult negotiations, as did three other important initiatives, organisations and civil society groups which should be named in this context. Above all, this obviously applies to the alliance for freedom of information, formed by the Netzwerk Recherche, the German Federation of Journalists, the German Journalists Union, Transparency International and the Humanist Union. This alliance also presented its own draft law on freedom of information last April and promoted it very strongly to the public. The boost which this initiative provided to the coalition groups in their efforts to ensure that a law on information freedom was finally adopted cannot be over-estimated. The draft freedom of information bill presented by Professor Garstka, Professor Schoch and Professor Kloepfer also deserves special mention; this draft also formed the basis for negotiations between the coalition parliamentary groups on a number of occasions. Finally, the commitment of the Bertelsmann Foundation, which was also involved in preparing this workshop, also deserves mention. Over many years, the Foundation repeatedly made itself available as a platform for discussion in order to provide support and ensure progress on this important civil society topic. Without this persistent and patient support provided by the initiatives and the Foundation, for which I would like to explicitly thank them, also on behalf of the coalition parliamentary groups, we would undoubtedly still be a long way from debating this bill in parliament. Not least as a result of this support and the public interest with which it was coupled, we have been able to present a bill which is based on a range of compromises, undoubtedly could and should be improved, but which represents a first step towards a paradigm shift, one which reverses the principle so far in application of limited public access to documents, making documents accessible to the public in principle.

On 17 December 2004, the coalition parliamentary groups tabled the Draft Freedom of Information Act in the German Bundestag, where the first reading took place. Whilst experts in the field had rejected previous drafts, saying "better no law at all than this law on freedom of information", the same people are now saying "better this law on freedom of information, which serves as a first step, than no law at all". Last month, the Committee on Internal Affairs at the Bundestag, which is the committee responsible, organised a public hearing on this bill. With a few exceptions, the experts invited explicitly welcomed the draft of the law in principle and made concrete suggestions for improvement. Necessary amendments to this draft law are now being prepared, in which we will take up the proposals made. Once deliberations in the committees have finished, the law is to be adopted before the summer recess at a second and third reading.

The bill tabled by the parliamentary groups of the governing coalition in the parliamentary process
Since I assume that most of you here today are not entirely unfamiliar with the bill tabled by the parliamentary groups of the governing coalition, I would like to make a few remarks about the bill’s main elements and its most controversial provisions, which of course also received particular attention at the public hearing. However, I should perhaps make a few general comments first. In light of the fact that we really are breaking new ground at federal level with this law, and given the massive opposition to it, we decided to limit the law’s period of validity and to carry out a scientific evaluation of its effects in practice. Even though this time limit has evidently been otherwise interpreted by experts in the field, and will therefore probably be removed again during the legislative process, the planned evaluation – not least of the hard-won compromises on exemptions – sends out a particularly important signal. The aim is to evaluate the Act in order to determine whether it is really achieving its objectives, and where improvements may be needed.

First, a few remarks on the principles and scope of the Act:
The Freedom of Information Act is intended to create a universal right of access to information. This means that unless a specific exemption exists stating that certain information warrants protection, it should, upon request, be provided to anyone. The Opposition in the German Bundestag and a few experts in the field have criticised the fact that this right is not limited to citizens of the Federal Republic of Germany or the European Union. Set against this is, for example, the fact that it is primarily associations representing German companies which want to block such a law in Germany, while at the same time German firms are among those who profit most from the American Freedom of Information Act.
It may appear to be relatively simple and nondescript, but Section 1 (3) of the freedom of information bill – dealing with the relationship between the Act and other opening clauses in federal law – proved to be one of the trickiest provisions, both in deliberations and at the public hearing. The Freedom of Information Act has always been intended to create a minimum standard for access to information. A particularly controversial issue in the deliberations was the relationship between the Freedom of Information Act and the Administrative Procedures Act. However, since the explicit aim of the bill is to create a universal right of access to information, and not simply to allow those involved in administrative procedures to access information held by federal authorities, the bill tabled by the parliamentary groups of the governing coalition explicitly enshrines the primacy of the Freedom of Information Act over the provisions of the Administrative Procedures Act as regards access to information for those concerned. However, the situation is different as regards regulations in special laws, such as were created in the “Stasi Files Act”, for example, to govern access to these special files. Since the legal consequences are currently unpredictable, we have come to a compromise, namely that provisions in special laws which deal with access to information will initially be given primacy. For these reasons, calls for only those provisions in special laws which go further than the bill to remain unaffected did not prevail.

Regarding the level of transparency afforded by the bill and the exemptions:
The most important aim of the parliamentary groups of the governing coalition in drawing up a freedom of information bill was to specify and narrowly define the necessary exemptions which limit access to information, while avoiding blanket exemptions covering wide areas for certain federal authorities. It is of course undisputed that certain information must enjoy particular protection.
Section 3, in particular, which regulates the protection of special matters of public concern, probably shows even those who were not directly involved in the negotiations how difficult the search for compromises proved to be. One expert even said, in his comments, that it was not difficult to see that the bill had been “ruined by compromises”. I would not go that far, but at the same time I admit that I would certainly have preferred a somewhat leaner and clearer Section 3. We are currently preparing motions for amendments in an attempt to remove redundancies and duplications from this section without generally calling into question the hard-won compromise.
The most controversial issue over the years of negotiations was the protection of business and trade secrets. Originally, the coalition parliamentary groups envisaged a clause providing for information to be disclosed if the public interest outweighs the interests of the owner of a business or trade secret. Unfortunately, it was impossible to achieve this in the negotiations, and the compromise set out in Section 6 stipulates that business and trade secrets may only be disclosed if the owner of these secrets consents; however, the term “business or trade secret” is to be very narrowly defined. This was quite clearly criticised in the comments provided for the public hearing – with the representative from industry forming the main exception.
Criticism focused mainly on the inequality of treatment regarding the protection of business and trade secrets on the one hand and the protection of personal data on the other. While Section 5, which deals with the protection of personal data, explicitly provides for such a weighing of interests, this is lacking for business and trade secrets. Transparency International has criticised this, since it could make it impossible to achieve one important aim of the bill, namely combating corruption.

Regarding procedural development, the rights of applicants and the duties of the authorities:
As you may have seen in the media, the question of time limits for processing applications for access to information was the crucial point of contention at the end of the negotiations. While the Federal Ministry of the Interior, on behalf of the Federal Government, rejected in principle the setting of time limits for processing applications, the coalition parliamentary groups pressed for a specific time limit to be included, as was the case for the recent amendment of the Environmental Information Act. Under the coalition parliamentary groups’ bill, access to information should be granted without delay and with consideration for the applicant’s situation, but at the latest within one month – within two months in particularly complicated cases or where the rights of third parties must be considered (e.g. data protection, business and trade secrets).
At the public hearing, the question of fees was again raised and calls were made for a provision ensuring no fee would be charged for simple enquiries or the inspection of files on site. The bill stipulates that fees must be set at a level which ensures that the Act’s aim – namely that it should in principle be possible to access information held by federal authorities – is not called into question.
Allow me to finish with a few more general remarks. In the context of e-democracy and e government, it is important to mention the so-called “internet clause”. Not least in view of the possible administrative burden and the costs, during the negotiations the coalition parliamentary groups stood by their demand for an internet clause. This means that information available from the authorities which is likely to attract sufficient interest should generally also be published online. The same applies to the indexes setting out what information is actually stored by which authority. We would have preferred a formulation which went further – but here too, the evaluation must examine whether and to what extent the authorities have given the internet clause real substance in practice.
Finally, I would like to comment on the time limit and evaluation of the Act. The bill stipulates that the German Bundestag shall evaluate this Act scientifically and on the basis of the reports on the work of the Federal Commissioner for Data Protection, who will also perform the duties of the Federal Commissioner for Freedom of Information, and of reports by the Federal Government. This is necessary for two reasons: firstly, it enables parliament to respond as quickly as possible to any potential undesirable developments which may arise once the Act has entered into force. Secondly, should it become clear that the regulations do not go far enough, parliament will also be able to expand the scope of the Freedom of Information Act. The time limit provided for in the bill, however, was seen by experts and civil-society groups to send out the wrong signal. The aim of the time limit was for parliament to commit itself to evaluate the Act and examine it again before the end of the time limit. As this was instead understood as meaning that the Act was to be given an “expiry date”, the time limit is to be scrapped during the legislative process.

Conclusion
Open access to relevant information and knowledge is an essential prerequisite for participation and inclusion in the emerging information and knowledge society. A new, modern right to information, which is understood in this way and which reconciles data protection and access to information, is therefore both the “prerequisite” for and “motor” of a liberal and democratic information and knowledge society. Data protection and access to information are given entirely new weight, making them two of the central requirements for the acceptance of new ways of accessing information and communicating, and at the same time giving them a special status in the concept of social modernisation.

Thank you very much for your attention. I will be pleased to answer any questions you may have about the parliamentary process or the coalition parliamentary groups’ bill, or to take part in a general discussion about the need for a freedom of information law.