2024-01-15 19:18:06
In their opinion, the legislative package still has some deficiencies
Vienna (PK) – Negotiations on the abolition of official secrecy have been ongoing in Austria for around ten years. Now the final end is just around the corner. The government parties have agreed with the SPÖ on a specific draft law, which is being adopted today Constitutional Committee of the National Council a public hearing was held. The MPs were represented as experts by the head of the constitutional service of the Federal Chancellery Albert Posch, the head of the constitutional service of the Styrian state government Waltraud Bauer-Dorner, the general secretary of the Austrian Association of Municipalities Walter Leiss, the legal scholars Christiane Wendehorst (University of Vienna) and Bernd Wieser ( University of Graz), the managing director of EpiCenter.Works Thomas Lohninger and Markus Hametner from the Freedom of Information Forum. In principle, there was a lot of approval in the hearing for the new right to information for citizens, but the experts still identified deficiencies in the draft law in detail.
It is still unclear when the new Freedom of Information Act and the accompanying constitutional amendments will be passed. Another meeting of the Constitutional Committee is planned next Monday, but this date has not yet been fixed. If the committee gives the green light in time, the plenary session of the National Council might discuss the package at the next meeting on January 31st.
Posch: Great challenge to create a uniform set of rules
At the beginning of the hearing, the head of the Constitutional Service of the Federal Chancellery, Albert Posch, highlighted the legal challenge of creating a uniform set of regulations for a heterogeneous group that is both as precise as possible and applicable in practice. After all, we’re not just dealing with traditional administrative offices, he pointed out. In addition, various legal positions must be taken into account. For example, the fundamental right to access to information and the fundamental right to data protection are opposed to each other. According to Posch, it is not possible to make general specifications here; interests will always need to be weighed up in individual cases. According to Posch, future changes to the Freedom of Information Act generally require the consent of the states.
As far as the right of hearing of affected third parties provided for in the law is concerned, it is now stipulated that this must be omitted if informing these people would hinder investigative journalism, explained Posch. In addition, an expansion of the parliamentary right to interpellation is planned: a refusal to answer is only possible if there are serious confidentiality interests.
In response to questions from MPs, Posch stated that information – such as an expert opinion – must be published subsequently if an originally existing reason for secrecy no longer applies over time. He also claimed that it would not be possible to undermine the Freedom of Information Act with special laws because the constitutional requirements had to be adhered to. The secrecy rights cannot be expanded with simple federal laws, but at best they can be restricted if this is viewed as essential.
Lohninger and Hametner identify gaps in the law
However, Thomas Lohninger from EpiCenter.Works and Markus Hametner from the Freedom of Information Forum see exactly this danger, namely that it will be possible to intervene in the right to information with simple laws. The proposed opening clause might, for example, stipulate in special substantive laws that the provisions of the Freedom of Information Act do not apply to the provision of information in this area, they emphasized and spoke of a “breaking point” in this context. It might take up to three years before the Constitutional Court makes a decision on the admissibility of these provisions, during which no information will be received. In addition, according to Hametner, the constitutional provisions only regulate the issue of secrecy; other provisions such as the exemption from fees or the deadlines for providing information are not constitutionally protected. This was better regulated in the original ministerial draft, said Lohninger.
Lohninger and Hametner also identify further gaps in the law. For example, Hametner criticized the fact that the law does not provide for any consequences if public bodies do not fulfill their obligation to proactively publish information of general interest or do not “willfully” answer inquiries. He also misses a specific right for administrative courts to inspect the documents or information requested by citizens or the media in order to be able to get an idea of the situation. That has already proven to be a problem. Hametner described the up to two-month period for information as “absurd”, but at least it was progress compared to the current status and previous draft laws. For him, the media solution now envisaged is not “completely clean”; following all, inquiring journalists often do not know in advance who the affected third party might be.
Significant improvements expected
In general, Hametner expects the law to bring significant improvements for the media and citizens. The fact that citizens have a right to government information and cannot be fobbed off with vague information is an overdue clarification, he said, even if the draft law falls short of many international models.
Lohninger also believes that the law will have a positive impact on Austria’s position in relevant rankings, although in his opinion we have to wait and see how it works in practice. The current law is not nice, “but we need it,” he said. In any case, a decision would be a historic step. He sees it as positive that state-affiliated companies and associations fall within the scope of the law and that application costs will no longer apply in the future. From his point of view, data protection is also “cleanly solved”, even if he sees “an enormous task” facing the administration. The necessary consideration of individual cases would be “spread across many shoulders in the country”. In his opinion, a freedom of information officer would have been a better solution here. Lohninger sees it as objectively unjustified that the state parliaments – in contrast to the National Council and the Federal Council – are not covered by the law.
Bauer-Dorner: Many of the states’ concerns were taken into account
According to Waltraud Bauer-Dorner (constitutional service of the Styrian state government), the fact that the state parliaments are excluded from the scope of the law was a political compromise. The state parliaments would exercise a high level of transparency anyway, she said. However, there were fears that committees and subcommittees that take place behind closed doors would be affected.
According to Bauer-Dorner, many of the states’ concerns have also found their way into the draft. As examples, she mentioned that there is no retroactive effect when proactively providing information, that the principle of origin applies to the obligation to publish and that legal protection lies with the administrative courts. The 18-month legislative vacancy at the state level will also be put to good use, said Bauer-Dorner. Ultimately, all state and local authorities would have to be prepared and trained. In addition, some legislative measures are probably necessary. The expert also defended the exception to the proactive information requirement for communities with fewer than 5,000 inhabitants, following all, in smaller communities there is often not even a lawyer on site. In addition, it is an optional provision.
In general, Bauer-Dorner pointed out that there are already comprehensive information obligations in some cases. She sees the “big hit” above all in the proactive obligation to provide information. In her opinion, individual improvements might be made to the draft in detail, for example in terms of the form of the information. Bauer-Dorner is also critical of the current regulation for state-affiliated companies: in her opinion, it would have made more sense to focus on the level of state participation (more than 50%), as it might be difficult to determine the status of control within the provided information period.
Leiss: Municipalities are not obstacles to transparency
Walter Leiss (Austrian Association of Municipalities) praised the “very constructive dialogue” that had been conducted with the communities. He complained that these had been falsely presented to the public as preventing transparency. In his opinion, small and medium-sized communities in particular are already acting very transparently, for example, referring to public council meetings. In addition, the federal state laws on providing information had already applied to municipalities.
According to Leiss, however, it will not be easy for communities to balance publication obligations and confidentiality rights. Legal expertise and know-how are often lacking at the local level. In this sense, the anchored population limit for the proactive publication requirement was a compromise. There will also have to be training, emphasized Leiss and in this sense welcomed the 18-month deadline for the regulations to come into effect. The municipal association representative expects guidelines from the federal level to ensure uniform interpretations in the municipalities.
Wendehorst: Law can bring regarding paradigm shifts
Christiane Wendehorst, professor of civil law at the University of Vienna, also hopes for precise guidelines. In practice, difficult balancing decisions will have to be made, she said. In this respect, from their point of view, more precise legal requirements and better guidance would have been desirable, for example with regard to the protection of affected third parties. Ultimately, it is also regarding data protection, banking secrecy or business secrets. The public authorities would be “left a bit alone” here. Although there are general criteria such as the “harm test” – what damage might be caused by the provision of information – and the public interest test, in individual cases, according to Wendehorst, weighing things up can be really difficult. As far as the consultation of affected third parties is concerned, in their opinion more precise guidelines would have been useful in the interests of greater protection.
Wendehorst considers data that the state collects regarding its citizens on a legal basis to be particularly worthy of protection. She considers the exception for state-affiliated companies, which do not have to provide information if this would impair their competitiveness, to be “reasonable”.
However, the concerns you expressed should not be an excuse to “delay the law even further,” said Wendehorst. This is fundamentally to be welcomed and might certainly bring regarding a paradigm shift. But a cultural change is also needed, the expert warned.
Wieser: Proactive information requirements are a big leap into the future
Bernd Wieser, professor of public law at the University of Graz, sees some points in the law, such as the purely functional concept of organs, as successful. He also viewed the proactive information requirement as a “big leap into the future”. However, official secrecy would only be abolished in name, he said, and confidentiality would continue to apply.
Wieser is critical, among other things, of the fact that the right to access information is only structured in simple law. He also believes that the exemption for communities with up to 5,000 inhabitants from the proactive information requirement would be repealed by the Constitutional Court as being contrary to equality if it were not constitutionally protected. The expert also warned once morest “overloading” the Constitutional Court in connection with the legal protection provisions and completely excluding the Administrative Court. Wieser viewed the 18-month legislative vacancy as understandable, but he would prefer a fixed date for it to come into force.
NEOS and FPÖ still see some open questions
On the part of the MPs, Wolfgang Gerstl (ÖVP) emphasized the need to “finally pass the law” and thus bring regarding a paradigm shift. The law is a compromise, he emphasized. According to him, a motion for a resolution is also planned, according to which an evaluation should be carried out two years following the law comes into force.
Selma Yildirim (SPÖ) also spoke of a paradigm shift. Her group colleague Muna Duzdar expressly emphasized the expansion of the parliamentary right of interpellation. It will no longer be possible to refuse answers to parliamentary questions citing official confidentiality, she emphasized.
In the opinion of Harald Stefan (FPÖ), the decisive factor will be the practical implementation of the law. Guidelines and training with more precise criteria are needed, he warned. Stefan also sees a regression in the publication of studies and reports in small communities and wonders how citizens are supposed to become aware of studies if they are not published in violation of the law.
Agnes Sirkka Prammer (Greens) asked whether there was any idea of setting up supporting organizational units in the states to make it easier for those affected to weigh up the issue. Her party colleague Ulrike Fischer viewed the planned 18-month legislative vacancy for municipalities as important.
Nikolaus Scherak (NEOS) still sees a number of open questions. For example, it is still not clear to him whether, according to the new legal regulations, information regarding the costs of the current border fence in Hügelsheim must be disclosed. He also fears that a citizen who is denied information by a municipal employee will not have the right to receive a decision and the opportunity to lodge a complaint. In addition, Scherak took up Lohninger and Hametner’s criticism of Section 16 of the Freedom of Information Act, which, according to him, would allow building regulations to take precedence over the provisions of the Freedom of Information Act. The MP also questioned why the chambers should not be required to provide information to everyone in Austria, but only to their members, and why the legislative package will apply to the National Council and the Federal Council, but not to the state parliaments.
Edtstadler locates paradigm shifts
Constitutional Minister Karoline Edtstadler spoke of a historic day. Many had doubts that it would actually be possible to get the Freedom of Information Act off the ground, she said. With the agreement with the SPÖ, we have come a decisive step closer to a decision. Transparency will be the rule in the future, secrecy the exception. Edtstadler emphasized that it was also important for the government to take the administration’s concerns seriously and to take precautions so that small communities were not paralyzed. According to her, there was “good and intensive collaboration” when developing the draft. The mood has changed in the last three and a half years, and it is now clear to everyone that freedom of information is needed.
Training for communities
As the debate continued, Friedrich Ofenauer (ÖVP) emphasized that smaller communities will also have the opportunity to proactively publish information on a voluntary basis. Whether these communities will voluntarily enter data into the information register will also depend on how easy it will be to fill it, emphasized expert Walter Leiss.
Sabine Schatz (SPÖ) asked the experts how the planned two-month notice period would be assessed from the municipalities’ perspective. Expert Waltraud Bauer-Dorner said the two-month deadline was “feasible,” but the responsible authorities would have to respond to the information “in addition to their other activities.” An evaluation process is therefore essential, says Bauer-Dorner, as it may provide information regarding any need to adjust the deadlines. Guidelines will be made available to communities to help, but the decision as to whether and how information can be provided must be made by the communities themselves, said Bauer-Dorner.
The state parliaments, which are excluded from the provisions according to the current draft law, would assume that they are already very transparent, said Agnes Sirkka Prammer (Greens). She asked the experts for their assessment of this. Prammer also emphasized that she was aware that in connection with this law there was still “a lot of need for regulation” with regard to other existing provisions, including with regard to criminal law.
Werner Herbert (FPÖ) addressed the tension between data protection and freedom of information, particularly with regard to media inquiries. He raised the question of how in practice one wants to deal specifically with decisions that may contradict each other and asked whether an arbitrariness is being created here.
Albert Posch said there was a big process needed in terms of training for communities. A screening of the current laws is also needed to determine which changes are necessary as a result of the new law. Referring to the question from Werner Herbert (FPÖ), Posch said that there was definitely a risk that there would be contradictions in the interpretation. It will be the task of the administrative and highest courts to decide on the correct course of action in these cases. Expert Christiane Wendehorst also assumes that there will be uncertainty when applying the law.
It is welcome that the data protection authority will support the responsible authorities with training, said Christian Drobits (SPÖ). However, this task involves a lot of effort and the data protection authority’s human resources are already too limited.
Nikolaus Scherak (NEOS) wanted to know whether it was actually planned to use the census, which only takes place every ten years, to determine which communities fall below or above the 5,000 population limit. This means that there are only changes in this regard every ten years, even if a municipality exceeds the 5,000 population limit much earlier. Yes, the official census must be used to ensure legal certainty, according to expert Bernd Wieser from the University of Graz.
In her question, Michaela Steinacker (ÖVP) pointed out the problem of assessing at what point companies such as ÖBB, which will be affected by the information requirement, can be expected to have their competitiveness impaired by information. For example, it is questionable whether this would include the publication of studies whose results were used for strategic decisions. Steinacker was also interested in the specific design of the information register and wanted to know who would operate, maintain and update it.
Information register: entry as simple as possible
The Federal Computing Center (BRZ) will be responsible for setting up the information register; the data will be fed in by the bodies required to provide information, said Albert Posch.
There are many international examples of the creation of the information register, said Thomas Lohninger. When entering information, “nothing should be done manually” or using printed forms. The input must be digital and as simple as possible. He also assumes that the data protection authority will need more resources in order to be able to provide assistance. From his point of view, however, one might discuss whether the data protection authority is the right place for this.
Markus Hametner spoke out in favor of a cultural change in the communities. It’s regarding active information; this shouldn’t happen “on the side”. The new law will lead to improvements in practice, as information seekers will receive a quicker response thanks to the two-month notice period. However, data protection officers would only be allowed to train the responsible authorities and not actively support them. A point should therefore be created to which both communities and applicants can turn for support, says Hametner.
Right to information replaces official secrecy
The basis for the hearing was a bill presented by the government (2238 d.B.), which is to be adapted by a comprehensive amendment proposed by the ÖVP, SPÖ and the Greens. Among other things, the SPÖ claimed improvements for the media and other “public watchdogs” in the template: They should be able to research in peace without the affected people finding out regarding it at an early stage and being alerted. It will also make it more difficult for members of the federal government to refuse answers to parliamentary questions by limiting the permissible reasons for refusal to four. Further points in the amendment request clarifications regarding state-affiliated companies, foundations and funds, the inclusion of all community associations in the proactive information requirement and the creation of a legal basis for expanding the federal legal information system.
In principle, the draft law proposes to finally delete official secrecy from the constitution and to introduce a right of information for citizens towards the state. In addition, public bodies should be obliged to publish information of general interest such as commissioned reports, studies and contracts on their own initiative – via a central information register. Exceptions to this proactive information requirement are only intended for communities with fewer than 5,000 inhabitants. Information can be refused, among other things, if public safety might be endangered by providing the information, there is a risk of significant financial damage or the interests of third parties outweigh the public interest in information. Even extremely time-consuming and obviously malicious inquiries do not have to be answered.
Obligations to provide information will also apply – in a limited form – to state-affiliated companies and funds. According to the draft, legal interest groups should only be obliged to be transparent towards their own members. The constitutional amendment and the new Freedom of Information Act are due to come into force 18 months following its promulgation, i.e. probably in the course of 2025. (Conclusion) gs/bea
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