Freedom of information in Austria
The year 2024 will be a milestone in Austrian (legal) history - it is the year in which the Austrian parliament enshrines a proactive obligation of government bodies to proactively publish information and grants a legally enforceable access to information for the public. Of course, there are exceptions, and the legislation will not come into force until 1 September 2025. The fact that the ironclad principle of official secrecy (Amtsgeheimnis) is being abolished is nonetheless revolutionary for Austria.
Status quo
In Austria, there has always been a constitutional law duty of confidentiality for all organs entrusted with federal, provincial and municipal administrative tasks as well as for all organs of other public law entities. They are obliged to maintain secrecy about all facts that become known exclusively as a result of their official activities, insofar as certain public interests are affected (so-called “Amtsverschwiegenheit” - official secrecy, Art. 20 para. 3 B-VG). Only insofar as this duty of confidentiality does not apply, are the administrative bodies obliged to furnish information (Art. 20 para. 4 B-VG in conjunction with the federal and provincial laws on the duty to provide information) and to publish the studies, expert opinions and surveys they commission (Art. 20 para. 5 B-VG).
Systematics of the new regulation
This principle of official secrecy as a rule and the obligation to provide information as an exception is now being abolished. The Austrian Federal Constitution (B-VG) had to be amended for this paradigm shift. The coalition partners ÖVP (the Austrian conservative party) and The Greens secured the approval of the SPÖ (the Austrian social-democratic party), and so the National Council (Nationalrat) was able to pass the new legislative package on 31 January 2024. The Federal Council (Bundesrat) will also give its approval these days.
The legislative package consists of an amendment to the Federal Constitution Act (B-VG) and a federal law on access to information (Freedom of Information Act – IFG).
Group of obligated parties
The B-VG and the IFG address a large number of government bodies and bodies attributable to the state. The group of obligated parties and the procedure to be followed vary depending on the type of information concerned:
- Information: every record serving official or business purposes within the scope of action of an organ, a foundation (Stiftung), a fund (Fonds) or an institution (Anstalt) or in the business area of a company (Unternehmung), irrespective of the form in which it exists and is available.
- Information of general interest: information that concerns or is relevant to a general group of persons. The significance for a sufficiently large group of addressees or persons should be taken into account. This generally includes the allocation of responsibilities (Geschäftseinteilungen), rules of procedure (Geschäftsordnungen), activity reports (Tätigkeitsberichte), official gazettes (Amtsblätter), official statistics, studies, expert opinions, surveys, statements and contracts (in any case with a contract value of at least EUR 100,000) that have been prepared or commissioned by bodies obliged to provide information. However, non-public consultations or internal meetings are not included.
Information of general interest must be published and kept available on the Internet as long as there is a general interest in it unless and for as long as) it is subject to confidentiality. This proactive obligation to furnish information (principle) applies to
- bodies and auxiliary bodies of the federal legislature (National Council, Federal Council, Court of Auditors (Rechnungshof) and Ombudsman Board (Volksanwaltschaft)),
- bodies entrusted with the management of federal or provincial administrative tasks (federal ministries, provincial governments, district authorities, etc.),
- bodies of ordinary jurisdiction (Organe der ordentlichen Gerichtsbarkeit),
- the administrative courts,
- the Supreme Administrative Court
- the Constitutional Court
- municipalities with at least 5,000 inhabitants.
Insofar as information (of general interest) is not already publicly accessible, an applicant may request access to information. However, this right is not unlimited; in certain cases, the duty of confidentiality applies. Bodies obliged to provide information must generally grant access to the information without undue delay (within 4 weeks at the latest). The further procedure differs depending on whether the obliged body is public or private:
Public bodies obliged to provide information
These are:
- bodies on the level of the federation (Bund), the provinces (Länder), the municipalities (Gemeinden) and associations of municipalities (Gemeindeverbände),
- bodies of the self-governing organisations established by law (Organe der gesetzlich eingerichteten Selbstverwaltungskörper),
- bodies of other legal entities and natural persons, insofar as they are entrusted with the management of federal or state administrative tasks.
In addition to cases, in which confidentiality must be maintained, a public party obliged to provide information (öffentlicher Informationspflichtiger) may deny access to information if the request for information is obviously abusive or if the provision of the information would significantly and disproportionately impair the other activities of such public party.
Since these public bodies (also) fulfil tasks of genuine state administration and thus regularly issue public decrees (Bescheide), they must respond to a written request from the person seeking the information by means of a public decree within two months in the event that access to the information is denied. This public decree can be contested by appealing to the competent administrative court.
Private parties obliged to provide information
These are:
- foundations, funds and institutions and
- companies that are directly / indirectly owned by the state (shareholding of the federation, the federal state or the municipality – alone or jointly with other legal entities subject to the jurisdiction of the Court of Auditors – of at least 50 % of the share capital or equity capital) and
- companies under the direct / indirect control of the state (factual control by the federation, the state or the municipality – alone or jointly with other legal entities subject to the jurisdiction of the Court of Auditors – through financial or other economic or organisational means),
who are subject to the supervision of the (state) Court of Auditors and who are not entrusted with federal or state administrative tasks.
The private parties obliged to provide information (private Informationspflichtige) can deny access to information beyond the provisions applicable to public parties obliged to provide information, if this is "necessary to prevent an impairment of their competitiveness" (zur Abwehr einer Beeinträchtigung von deren Wettbewerbsfähigkeit erforderlich ist”). This exception will be the subject of much debate. Listed companies and their affiliated companies, on the other hand, are expressly exempt from the obligation to provide information (non-listed state companies would certainly also have gladly accepted this privilege).
Since the private parties obliged to provide information do not fulfil any administrative tasks and therefore cannot issue public decrees, the party requesting information must approach the competent administrative court for a decision within four weeks of the expiry of the deadline for providing information in the event that private parties obliged to provide information deny access to information. The administrative court must decide within two months.
Exception: Duty of confidentiality
As mentioned above, there is in principle an obligation to publish information of general interest and a right of access to information. However, there is an extensive catalogue of confidentiality requirements. According to this catalogue, information can be kept secret
- for mandatory integration or foreign policy reasons (aus zwingenden integrations- oder außenpolitischen Gründen),
- in the interests of national security,
- in the interests of comprehensive national defence (umfassende Landesverteidigung),
- in the interests of maintaining public order and security,
- in the interest of unimpeded drafting of a decision, in the sense of unimpeded lawful decision-making and its immediate preparation (im Interesse der unbeeinträchtigten Vorbereitung einer Entscheidung, im Sinne der unbeeinträchtigten rechtmäßigen Willensbildung und ihrer unmittelbaren Vorbereitung),
- to prevent significant economic or financial damage to the bodies, territorial authorities or other self-governing bodies (zur Abwehr eines erheblichen wirtschaftlichen oder finanziellen Schadens der Organe, Gebietskörperschaften oder sonstigen Selbstverwaltungskörper), or
- in the overriding legitimate interest of another person. (im überwiegenden berechtigten Interesse eines anderen).
However, all interests in question (interest in disclosing the information vs. interest in keeping the information confidential) must be weighed against each other in advance. Even if the interest in confidentiality should prevail, confidentiality must be necessary and proportionate (if applicable, only part of the information may be kept secret).
In this context, reference should be made to the landmark judgement of the European Court of Human Rights on "Public Watch Dogs" (ECtHR 8 November 2016, Magyar Helsinki Bizottsag, 18030/11). The criteria set out in this judgement should be studied carefully when weighing up the interests at stake.
Outlook
The paradigm shift from official secrecy to freedom of information is finalized. However, those hungry for information will have to be patient until 1 September 2025 (only then the IFG will enter into force).
In practice, the IFG will pose considerable legal problems. You do not need to be a clairvoyant to predict that the administrative courts and the Austrian supreme courts will have to clarify many legal issues in the first few years, in particular, with regard to the scope of the exemptions to access to information, the balancing of mutual interests and the additional exception for state companies (necessary to prevent impairment of their competitiveness). These are all exciting topics that lead us to the constitutional / fundamental rights.
We will keep you informed.
Please note: This blog is for general information purposes only and in no way constitutes legal advice from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal advice. Binder Grösswang Rechtsanwälte GmbH accepts no liability of any kind for the content and accuracy of the blog.