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Information transparency of public authorities: an uphill battle

Start: 08.03.2010
In the following: IFG refers to the german federal act for information freedom Informationsfreiheitsgesetz

General

Worldwide more than 80 countries have passed legislation in varous guises to regulate free access (or access at minimal cost) to information held by public bodies or to protocols of communal or governmental meetings. Usually this legislation does not cover the entire nation, rather there are laws at a federal level, and state-specific laws. And the access is not universal i.e. for diverse reasons certain information or data is withheld from the public. Zum Beispiel bei einer öffentlichen Ausschreibung sollten Firmeninterne Details zur Preisfindung Firmengeheimnis bleiben, dagegen sollten Entscheidungsgründe bei der Auswahl des Auftragnehmers sehr wohl der Öffentlichkeit zugänglich sein. For example in a public tender company internals of pricing should remain a company secret, but reasons for the choice of contractor should be accessable to the public [1].

Politicians and public servants, feeling that their freedom of action is in danger (and rightly so), tend of their own free will not to open their archives for scrutiny by the public. Information freedom laws are usually only passed as an answer to pressure arising from scandals of some kind. And if the public eye is not watchful, the extent of access to data that these laws allow will diminish over time in the course of amendments.

Situation in Germany

Since 2006 a Freedom of Information law (Informationsfreiheitsgesetz) is in force covering governmental bodies at a federal level [2].  Of the 16 german states, 11 have adopted their own individual information access legislation, some of them since 1998. Not among these is the 'free state' of Bavaria.

To what extent the newly created Freedom of Information Act is being neutralized by the public services is shown by the the following simple statistic [4]:
20072008Change
Nr of information requests12651548(+22%)
Complete answers54%35%(-26%)*
Requests rejected20%35%(+75%)*
*) relative to the Nr of information requests

Comment by the speaker of the Greens: "[Public service] documents continue to be understood as ruling-class knowledge to which the citizen is not entitled".

The Freedom of Information Act is in force

Bavaria

1) Background

Since 1946, (excepting 1954-57) Bavaria has been governed by the Christian Socialists (CSU). Since September 2009 for the first time in coalition with the Free Democrats (FDP). Th unusually long tenure of the party must have side-effects in the working assumptions and thinking habits of politicians and higher public servants.


2) The hard farewell from the Amtsgeheimnis (culture of secrecy around official data)

The Amtsgeheimnis is a cultural remnant of the times when the head of state was an emperor, king, prince or duke, and democracy was a vague notion on the horizon.
In 2001 the CSU rejected a proposal for the adoption of a free information access law. The argument: there would be so many requests for information that the public servants would not be able to do their jobs, the public service would be paralyzed, and it would open the doors for notorious meddlers and troublemakers.
2003 marked the creation of the Alliance for Freedom of Information in Bavaria. [3]
In 2006 the CSU again rejected the adoption of a free information access law. The argument: as above. During the first two years of the federal law, the reality looked different: only 1800 requests in total.

End of 2008 the Christian Democrats (CSU) initiated an amendment that would have weakened the federal free information access law [5][6][7]. The change would have prevented the public from gaining insight into documents of banking supervisory bodies.
As major justification for the amendment, the CSU cited a ruling of the Frankfurt administrative court of 12.03.2008.
In light of the world financial crisis and the (understandable) loud calls for more stringent regulation of the financial markets, this amendment appears like a travesty. What motivated the CSU? Aside from their generic dislike for providing the public with information, it was fairly obviously the unlaudable role of CSU politicians as supervisors of the bavarian state bank. See also The BayernLB 2005-2010).
The adoption of the amendment was narrowly rejected in March 2009.

In 2009 the CSU rejected the adoption of a free information access law a third time. Since the previous argument had been refuted, a new argument was produced: now such a law would be counter to data privacy. This argument is absurd on two counts:
- the capability of classifying information into permitted/not-premitted for disclosure is an inherent feature of such laws (as amply demonstrated by the IFG),
- the CSU is itself very much in favour of information gathering on a 'no holds barred' basis where the citizen is the source of the information, and then totally without his/her consent, in areas like computer supervision, video supervision, automatic car number plate supervision. No problem with data privacy there.

3) Progress at the grass-roots level?

The Alliance for Freedom of Information in Bavaria has come to the conclusion that it is pointless to expect any change from the government. Therefore the Alliance has gone over to encouraging local/communal authorities to adopt open information policies. With a degree of success [8].
Since 2009, five smaller bavarian communes have adopted freedom of information bylaws which regulate citizens' access to communal information. However, these new bylaws vary, some represent openness in appearance only. There was no flooding of infomation requests.
The city of Munich has begun to publish the city council meeting protocols on the Internet (against the votes of the ruling Socialists, SPD, who argued that "it would hamper the city councellors in excercising their freedom of speech").

Everywhere you discover substantial attitudes of the "good old days", not only in Bavaria.


Sources:

[1] wiki "Freedom of information legislation" (umbrella article across countries)

German:
[2] wiki "Informationsfreiheitsgesetz"

[3] Bündnis für Informationsfreiheit in Bayern. Seit 2003

[4] FAZ "Informationsfreiheit: Gläsern erst gegen Gebühr", 02.05.2010

[5] Bundesrat " Drucksache 827/1/08", 08.12.2008 (Entwurf eines Gesetzes zur Umsetzung der aufsichtsrechtlichen Vorschriften der Zahlungsdiensterichtlinie)

[6] Bundestag "Finanzausschuss: Finanzaufsicht muss Bürgern weiter Auskunft geben", 25.03.2009

[7] attac "CSU-Initiative für weniger Transparenz bei Bankenaufsicht ist Skandal", 07.02.2009

[8] BR5 (Radio) "Wissen und Macht - Warum Bayern der Abschied vom Amtsgeheimnis so schwer fällt", 07.03.2010