Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
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The Bundesverwaltungsgericht (German Federal Administrative Court) refused to grant an order permitting a newspaper access to information from the Bundesnachrichtendienst (Federal Intelligence Service) about the names of German companies and citizens on the “selector lists” of the US National Security Agency. The newspaper asked the Court to find that Art. 5(1) Grundgesetz (German Basic Law) included the right of the press to obtain information from federal agencies. The German Federal Administrative Court found that this right existed, as long as it did not stand in conflict with legitimate private or public interests in the confidentiality of the information being sought. It went on to say that giving the press access to information about the operational procedures of the Federal Intelligence Service would impede its work, including its ability to work with foreign intelligence services. As a result, it could not grant the order.
The applicant was the publisher of a German newspaper, which had asked the Bundesnachrichtendienst (Federal Intelligence Service) to disclose information about the use of the US National Security Agency’s “selector lists” (lists of targets for the National Security Agency’s surveillance programme) in Germany. The editor of the newspaper sought the following information: (i) the names of German companies and German citizens who were on the “selector lists” received by the Federal Intelligence Service from the US National Security Agency; (ii) the names of German companies and German citizens who were deleted by the Federal Intelligence Service from those “selector lists”; (iii) the names of German companies and German citizens who remained on the lists for the purpose of Federal Intelligence Service monitoring.
The Federal Intelligence Service refused to disclose this information because only the German Government and certain closed committees of the German Bundestag (lower house of the German Parliament) were allowed access to information about the Federal Intelligence Services operational procedures.
Following this refusal, the applicant requested an interim order from the Bundesverwaltungsgericht (Federal Administrative Court) requiring that the Federal Intelligence Service disclose the requested information. The applicant based its request on its right to freedom of the press under Art. 5(1) Grundgesetz (German Basic Law) and Art. 10 European Convention on Human Rights (ECHR).
The Bundesverwaltungsgericht (Court) delivered a per curiam opinion, rejecting the applicant’s request for an interim order. The Court reasoned that the request was without merit and did not engage Art. 5(1) German Basic Law. The Court affirmed that the press had a constitutional right under Art. 5(1) German Basic Law to obtain information held by federal agencies (including the Federal Intelligence Service) in a suitable form. However, that right must be limited when it stands in conflict with legitimate private or public interests in maintaining the confidentiality of the information sought.
In the present case, the Court found that such legitimate interests existed when maintaining the confidentiality of the “selector lists”. The Court reasoned that the operational procedures of the Federal Intelligence Service could be justifiably excluded from any disclosure obligation on federal agencies. These operational procedures included the Federal Intelligence Service’s cooperation with foreign intelligence services, and its role in procuring and evaluating information regarding foreign and internal affairs.
The Court went on to note that the operational procedures of the Federal Intelligence Service was dependent on its ability to work covertly. The Court concluded that the need for secrecy over the operational procedures of the Federal Intelligence Service generally outweighed the interest of the press in obtaining information. Therefore, the Court recognized that there could be a general measure against disclosure of information relating to the operational procedures of the Federal Intelligence Service. In other words, disclosure would not be considered on a case-by-case basis, it was enough that the information related to the operational procedures of the Federal Intelligence Service for it to then not be disclosed.
The Court observed that the Federal Intelligence Service relied on cooperation with foreign intelligence services in order to jointly procure information, or to share knowledge. The Court noted that disclosing information on operational procedures to the press would harm cooperation with foreign intelligence services, since cooperation between services required that both sides be able to rely on each other to maintain the confidentiality of the information shared.
Finally, the Court also found that the applicant could not base its claim on Art. 10(1) ECHR. The Court reasoned that the ECHR allows for limitations to protect national security and the confidentiality in information. The Court reasoned that the non-disclosure of the information sought was legitimate and necessary in a democratic society in accordance with Article 10(2) ECHR.
The Court dismissed the request for an interim order.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by recognising that, in Germany, a general measure can be adopted to prevent the disclosure of all information relating to the operational procedures of the Federal Intelligence Services. This means that disclosure will be refused regardless of the public interest nature of the information, or whether there would be any harm sustained by the intelligence services if the information was released.
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