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The principle of publicity in administration aims at establishing informational justice between the general public and the administration. Informational justice is understood here as a balanced level of information between the administrative authorities on the one hand and the general public on the other. The law ensures this informational justice by granting an individual access to the files and information available in the administration, which also includes electronically stored information. The law, or in some cases even the cantonal constitutions, grants every person a judicially enforceable right of access to administrative files. The person making the request, for his part, does not have to give reasons why he is making the request and why he needs the information. In this respect, access is not subject to any prerequisites. The only restriction is that the request must be for a finalized file and not for personal notes of the administrative employee. The requested administrative body must examine the request and can only refuse it if there are overriding reasons of secrecy.
A long tradition of public courts and parliaments
Judicial publicity and parliamentary publicity have existed since the French Revolution. It is obvious that the cantonal administrations, as well as the individual offices in the federal administration, were initially somewhat unenthusiastic about the idea of also introducing the principle of public access in the administration. However, the principle of openness is of fundamental importance for the functioning of the democratic constitutional state in the administration as well. It is about the control of administrative action by the public and about the well-founded support of the formation of opinion and will by the public and those entitled to vote. However, the principle of publicity also serves science and the economy. In the meantime, the state administration has acquired a weight in the entire organization of the state that can hardly be overlooked and has an immense amount of expert knowledge at its disposal. The media have succeeded on several occasions in uncovering unfair dealings by public authorities and private individuals in public procurement, especially in the IT sector. This shows that the control of the administration by the public, today very often exercised by journalists, is of great importance. However, the administration also goes a long way toward meeting the need for information by making raw data in the sense of basic data available electronically via open data portals, which is of great value for science and the economy in particular.
«The media have succeeded on several occasions in
uncovering unfair dealings by public authorities and
private individuals in public procurement, especially in the IT sector.»
The introduction of the principle of public access at the federal level was rather slow. It took more than 20 years from the first attempts in parliament in 1980 until 2004, when the Federal Act on the Principle of Public Access to the Administration (BGÖ) was passed by the Federal Assembly. As a pioneer canton, Bern should be mentioned, which included the principle of public access to administration in its then new cantonal constitution as early as 1993. However, the cantonal administration in Bern initially received hardly any requests for information from the media.
Today, the picture is very different. Private individuals, non-governmental organizations (NGOs) and, above all, journalists make extensive use of the right of access to administrative files. If the requested administrative authority refuses to grant access to the files, the matter is brought before the courts. The Federal Supreme Court also frequently deals with administrative public access. Court practice has contributed significantly to the fact that the initial resistance in the administration to reject any request for access to files to the best of its abilities has subsided. The rules of the game in the various administrations are now quite well established, even at the municipal level.
Court practice has in fact clarified at an early stage that the publicity of the administration is the rule and secrecy the exception. This is true, since with the introduction of administrative transparency, the rule of fundamental secrecy in the administration was reversed. The consequence is that asserted reasons for secrecy, for example the protection of third-party persons or the protection of a business secret, can no longer be held against the principle of publicity if they are not sufficiently proven. Thus, under certain circumstances, a contract, for example a software development contract between the administration and a company that has been awarded the contract in the procurement procedure, must be disclosed in full or in part to a journalist. Because secrecy is now the exception, a possible impairment of, for example, the personal rights of a third party or the business secrets of a company must be proven to the extent that an infringement is concrete and imminent and is also likely to occur. The third parties who invoke the protection of personal privacy or the trade secret very often fail to provide this evidence.
«Court practice has in fact clarified at an early stage that
the publicity of the administration is the rule and secrecy the exception.»
This very strict court practice, in turn, means that the administrative authorities sometimes also make information available in advance on their own initiative via their website, which may also contain specific names of persons, for example lists of companies that have applied for export licenses for military equipment.
The administration tries to insert exceptions into laws
However, the fact that there is still resistance in some parts of the administration can be seen at the federal level, where public access to files is not laid down at the constitutional level, but only at the level of the law. Administrative offices in the federal administration, which today regularly write the drafts of federal laws, repeatedly try to enforce exceptions to the principle of public access to entire subject areas in the administration through the legislative process. Sometimes this approach is successful, but at other times it is uncovered by parliamentarians and cancelled again. The latter was the case with the revision of the Federal Law on Public Procurement. There, an initial draft contained a provision that the principle of public access to information should no longer apply to public procurement by the federal government, even though the media have exercised effective control in this area and have been able to uncover serious inconsistencies in public procurement. The Financial Market Supervision Act, on the other hand, generally exempts the Financial Market Authority (Finma) from the application of the principle of public access, which is not convincing, especially in view of its nationally and internationally relevant function for financial stability.
However, the restrictive handling of the reasons for secrecy, which can conflict with the principle of public access, does have drastic consequences, which also interfere with the everyday work of administrative employees. For example, their e-mails may be public. Any personal remarks, for example by a head of an office, about an incident can thus seem completely out of place to the eyes of the public, even if they were intended more as a humorous aside for the addressees. Administrative employees are not always aware of this. Minutes from internal meetings in the administration should also be made publicly available where appropriate. It is not the intention here to suggest that the exchange of information should again be increasingly restricted to verbal exchanges. Nevertheless, discipline is needed to refrain from personal remarks in e-mails. Likewise, minutes should be written in such a way that they can always be viewed by outside third parties.
After almost twenty years since the BGÖ came into force, it can be said that this law, which is interpreted in a differentiated manner in court practice and in favor of the principle of public access by restrictively handling the grounds for exemption, has on the whole become well established in the administration. However, legislators and politicians in particular must keep a watchful eye to ensure that the administration, which today practically drafts legislation on its own (which is not entirely unproblematic in view of the separation of powers), does not suddenly write a general exclusion of the principle of public access for a specific subject area into a draft law.