Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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In November 2015, the Higher Administrative Court in Germany affirmed the Lower Administrative Court’s decision and granted the Claimant Tagesspiegel an injunction ordering the Bundestag (German Parliament) to release a complete list of lobbyists who had been issued permanent entry passes.
German newspaper Tagesspiegel brought proceedings against the Bundestag following its refusal to release a complete list of lobbyists allowed entry to Parliament. A complete list would have included lobbyists whose names didn’t appear in the public register but who had been granted entry passes on the basis of authority from one or other of the political party directors. The lower court granted Tagesspiegel’s applications to obtain information on (1) the number of representatives of which organizations were issued with entry passes on the authority of parliamentary political party directors and (2) which parliamentary directors of which parties authorized the entry passes for representatives of which organizations.
The Bundestag appealed on the grounds that the information infringed the right of parliamentary members to act freely under Article 38 of the German Grundgesetz (constitution) and the lobbyists’ general right of personality under Article 1 and 2 of the Grundgesetz, including the right to be able to decide what happens to any personal information.
The Court held that Tagesspiegel’s claim for information, based on the constitutional right to information under Article 5 of the Grundgesetz, didn’t infringe the Bundestag’s members’ right to a free mandate or the lobbyists’ right to personality, including the right to decide what happened to personal information. It reasoned that the requested information wouldn’t reveal the identity of individual lobbyists any member of the Bundestag talks to, how often or what is talked about nor would it reveal which members of a parliamentary party had met, or were likely to meet, with certain stakeholders or what topics were at issue. Further, the Court said that supplying the requested information wouldn’t infringe the lobbyists’ right to personality because both the lobbyists and the Bundestag’s politicians voluntarily conduct their business in a public space and a list revealing which lobbyists could enter the Bundestag wouldn’t reveal anything further.
In 2014, Abgeordnetenwatch.de, a parliamentary watchdog group, reviewed the rules for lobbyists to access the German Bundestag. It initially thought the process was transparent because there was a register listing 2,175 lobbyists who had entry passes allowing them to enter the Bundestag. Abgeodnetenwatch subsequently discovered that lobbyists could get permanent entry passes on the basis of a signature from a director of one or other political group and there was no public record of who received those passes or what the legal justification for the procedure was because the Bundestag denied access to such information on security grounds. However Abgeordnetenwatch managed to obtain a list via unofficial channels.
Abgeordnetenwatch made a formal request for the full list of lobbyists who had been issued entry passes by political parties but this was refused by the Bundestag’s administrative department. Abgeordnetenwatch.de and Berlin newspaper ‘Der Tagesspiegel’ brought separate lawsuits to obtain this list. On 28 September 2015 the Lower Administrative Court granted Tagesspiegel an injunction ordering the Bundestag to provide the information.
The Bundestag appealed and on 20 November 2015 the Higher Administrative Court affirmed the lower court’s ruling. The Bundestag finally released the full list in later that month. It included 1,111 lobbyists with entry passes issued by one or other of the parties, more than half of which had been issued by the CDU/CSU faction (a political alliance between the Christian Democratic Union of Germany and the Christian Social Union in Bavaria and one of the ruling parties).
The Higher Administrative Court, delivered a per curiam opinion on 20th Nov 2015, ruling that neither the interests of a free mandate for members of the Bundestag under Article 38 of the German Grundgesetz (constitution), nor the lobbyists’ general right of personality under Article 1 and 2 of the Grundgesetz, including the right to be able to decide what happens to any personal information, took precedence over the media’s constitutional right to information under Article 5 of the Grundgesetz in respect of the grant of access passes by the Bundestag to lobbyists. In so doing it affirmed the decision of the Lower Administrative Court.
The Defendant, the Bundestag’s administration, firstly argued that the Claimant, in this case the editor of ‘Der Tagesspiegel’, should not have been allowed an expedited hearing. The Higher Court disagreed, arguing that there was a strong public interest in such matters and the press can only perform its role informing the public about matters in the public interest, specifically political issues, if it acts in a timely manner.
The Court also said, that the right to information under Article 5 of the Grundgesetz did not infringe Article 38 of the Grundgesetz which protects the right of parliamentary members to perform their duties freely, representing the people and subject only to their own consciences. This right includes allowing each member to decide on where to obtain necessary information and whether to share such information with a third party, including the press. The Court said that the Claimant’s request for a complete list of lobbyists didn’t infringe this right, because it didn’t disclose the identity of individual lobbyists any member of the Bundestag talks to, how often or what is talked about. The same also applied to the directors for the parties who sign the entry passes. All the Claimant’s requested information will reveal is which lobbyist has contact with which party, but not with which member, nor what topics were at issue. The Court added that the issue of entry passes primarily simplifies the administrative process, and does not automatically mean that Bundestag members do not interact with lobbyists who don’t have a permanent entry pass.
The Court also rejected the Defendant’s claim that supplying the requested information would infringe the right to personality under Articles 1 and 2 of the Grundgesetz, including the right to be able to decide what happens to any personal information. It reasoned that both the lobbyists and the Bundestag’s politicians voluntarily conduct their business in a public space and the disclosure of the list wouldn’t reveal anything further.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by making the lobbying process more transparent to the public and there is some hope that the ruling will pave the way for a reform in the law.
Shortly after the decision the Bundestag announced its intention to reform the lobbying process by regulating the issue of passes more transparently, denying permanent access passes for lobbyists representing companies and limiting the number of passes to two passes for each political organization. Part of the Bundestag is still committed to doing this and the opposition has already proposed changes in a draft: Abgeordnetenwatch and LobbyControl, another parliamentary watchdog group, have also published a joint draft on a new law. However there is an impasse in the Bundestag primarily caused by the CDU/CSU which claims there is no transparency issue and continues to block reforms.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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