Organization for Security and Co-operation in Europe

The Representative on Freedom of the Media

A COMPREHENSIVE REVIEW OF LAWS AND PRACTICES ON ACCESS TO INFORMATION BY THE MEDIA IN THE OSCE PARTICIPATING STATES

Questionnaire

Germany: Right of Access to Information

Constitutional Rights

1. In your country, is there a constitutional right of public access to information or to documents held by government bodies?

Only in 1 of 16 states, i.e. Brandenburg (Constitution Article 21 (4))

2. Has the Constitutional Court, the highest court or appellate court interpreted or enforced this right?

The Constitutional Court rejected the "Constitutional Complaint Freedom of Information" 1 BvR 1981/05 on access to public documents. The appeal is now "Complaint Access of Information and Fair Trial" (Appl. No. 41126/05) at the European Court of Human Rights since 11. November 2005: http://wkeim.bplaced.net/files/echr-complaint.htm

3. Does this right apply to all information, or is it limited, in order to protect certain rights or types of information from disclosure?

No such right, see above.

4. If so, what are the limits and how are they defined by law (for example, the common exceptions made for national security)?

5. Are there other specific constitutional limits on access and dissemination of information?

8 of 16 states have FOI laws. However some courts see Basic Law Article 14 [right to property] supersede consumers right to know about measurements of wrong weight of products.

Beschluss des Schleswig-Holsteinischen Oberverwaltungsgerichts vom 22. Juni 2005, Az: 4 LB 30/04: "Weil der Verbraucherschutz kein Rechtsgut von Verfassungsrang ist, muss er grundsätzlich hinter von Art. 14 GG (Eigentumsrecht) geschützten Rechtspositionen zurücktreten und kann auch im vorliegenden Einzelfall die Belange der betroffenen Unternehmen nicht überwiegen."

The federal court Bundesverwaltungsgericht did not allow an appeal: Beschluss des Bundesverwaltungsgerichts, BVerwG 3 B 126.05

Legal Rights

6. Is there a national law (a Freedom of Information Act, or a Freedom of Information (FOI) Law) allowing individuals to access or demand any information from government bodies? Please name the law and provide an English translation, and a web link, if available.

Federal Freedom of Information Act - FOIA: http://www.informationsfreiheit.info/files/foia_germany_final_june05_clear.pdf http://wkeim.bplaced.net/files/FOIA_Germany_Final_June05_clear.pdf in power since 1. January 2006. 8 of 16 states: http://www.bfdi.bund.de/cln_029/nn_672714/IFG/Gesetze/Landesgesetze/Landesgesetze__node.html__nnn=true have adopted FOI laws.

7. Are there limits on who can use this law (for reasons of citizenship, legal status, etc)?

No limits: Everybody

8. Does the FOI law give journalists or media organisations a greater right of access to information than citizens?

No privileges for journalists. Organisations are (normally) not allowed to apply.

9. If there is a FOI law, please provide the statistics on the use of the law by journalists and media organizations.

No statistics for journalists. But from 1. January to 20. June 2006 there were 420 applications in federation altogether. 106 were refused: http://www.heise.de/newsticker/meldung/76563 . The federal government defends that there are many exceptions. It is not known how many of the applications are from journalists.

10. Is there a media or press law that gives journalists any additional rights of access to information? Please name the law and provide an English translation, and a web link, if available.

There are press laws for 16 states (since approx. 40 years): http://www.presserecht.de/navig/n_gesetze_presse.html However there is no right to access documents, just oral information.

11. Are there any limits in this law on access to, and publication of, information?

I do not know much more than that the laws are old and give no access to documents only oral information.

12. If there is a legal right in a media or press law to access information, please provide the statistics on the use of that law by journalists and media organizations.

I do not know such a law.

For all the above, please provide texts of laws and other relevant documents, statistics, web links to all documents, preferably in English.

Receiving and Publishing Information

Rules on Classification

13. Is there a law or regulation (a State Secrets Act, Official Secrets Act or Protection of Classified Information Act) that sets standards for state and official secrets, such as :
    • Different categories in terms of level of confidentiality?
    • The period of classification and declassification?

I don't know these laws.

Rules on Limitations

14. Does any law, administrative, criminal, or other prohibit the unauthorized disclosure, possession or publication of state secrets related specifically to national security?

The criminal code section 93: http://www.iuscomp.org/gla/statutes/StGB.htm#93 state secrets.

15. Do these prohibitions only apply to officials whose duty is to protect secret information, or do they also apply to persons who have not signed security agreements, such as members of the public, including the media?

The criminal code applies to all.

16. Does any law, administrative, criminal, or other, prohibit the unauthorized disclosure, possession or publication of non-national security related information held by government bodies or those conducting public business? Please list what types of information are covered by this?

Violation of Official Secrecy and of a Special Duty of Secrecy (criminal code section 353b): http://www.iuscomp.org/gla/statutes/StGB.htm#353b

Wrongdoings of the state (Illegal Secrets) are also protected, criminal code section 97a: http://www.iuscomp.org/gla/statutes/StGB.htm#97a

Transparency International is concerned about the situation of whistle-blowers in Germany: http://www.transparency.de/Whistleblowing.60.0.html

17. Do these prohibitions only apply to officials, or do they also apply to persons who have not signed security agreements, such as members of the public including the media?

Criminal code section 96 (2): http://www.iuscomp.org/gla/statutes/StGB.htm#96: "Whoever obtains a state secret, which has been kept secret by an official agency or at its behest, in order to disclose it (Section 95), shall be punished with imprisonment from six months to five years. An attempt shall be punishable."

Rules on Sanctions

18. What are the civil or criminal penalties for unauthorised disclosure, possession or publication of classified information? Is this part of the regulation on classification, or is it found in another law, such as the Criminal or Penal Code?

See criminal code section 94 Treason: http://www.iuscomp.org/gla/statutes/StGB.htm#94

19. Do these penalties apply to the media for unauthorised disclosure, possession or publication of classified information? Are there additional or higher penalties for mass publication of information?

See criminal code section 94 (1) 2.

20. Have there any cases been brought in the last five years against:
    • Officials in charge of the leaked classified information?
    • Members of the public?
    • Journalists or media organisations?

Please describe the outcomes, including the date of the case, the defendants and the charges.

The Bundesnachrichtendienst (BND=German secret service) spied on German journalists to find out who in BND gave information to the press. The magazine Cicero got a visit from the police and the editor was prisoner: http://www.taz.de/pt/2006/08/17/a0161.1/text

"Jüngst enthüllte Details der BND-Affäre zeigen das: Nicht nur observierte der Dienst jahrelang kritische Journalisten, er setzte sogar unter Presseleuten gewonnene Spitzel auf deren Kollegen an.": http://www.spiegel.de/politik/deutschland/0,1518,416451,00.html

The public will not be informed fully only a parliamentary commission (Parlamentarische Kontrollgremium (PKG) )

For all the above, please provide texts of laws and other relevant documents, statistics, web links to all documents, preferably in English.

I have no further answers to:

Protection of Publication in the Public Interest

21. In cases of breach of secrecy by the media, does the law acknowledge that society's right to know about issues of public interest might override the government's classification? Does the law oblige the judiciary to apply the public-interest test to evaluate the government's classification concerns?

22. In practice, does the judiciary consider the public's right to know as being overriding or equal to the government's classification concerns? Are there milder or no sanctions imposed on journalists and the media for unauthorised release of information that was of legitimate public interest?

For all the above, please provide texts of laws and other relevant documents, statistics, web links to all documents, preferably in English.

Protection of sources

23. Is there a national law on the protection of journalists (also referred to as 'shield law') from sanctions for refusing to disclose their sources of information?

24. If there are sub-national divisions, such as states or provinces, do they follow the national law or independently recognize the right?

25. If there is no national law, are there court decisions, regulations or processes that recognize protection of sources and limit their disclosure?

26. How many times in the last five years has a journalist or media organisation been required by a court or official to disclose their sources of information under this law or any other law?

27. Is the protection absolute? Under what circumstances can an official or a court order a journalist to reveal sources?

28. What are the penalties for refusing to reveal sources of information?

29. Are the journalists prohibited from revealing their source without the permission of the source?

30. In the media, who is protected from disclosure of sources:
    • The journalist? The editor? The publisher?
    • Freelance journalists or commentators?

31. Is protection extended to those working for broadcasting media (television, radio, including cable and satellite programmes)?

32. Is protection extended to different types of Internet-based media, Internet journalists and commentators?

33. Are searches of property belonging to the media or the journalists, such as newsrooms or apartments, prohibited by law?

34. Are third parties who act for journalists or media organisations, or provide services to them (like telephone or internet providers) also protected from disclosure of data on journalists' communications with sources, or from interception of them?

For all the above, please provide texts of laws and other relevant documents, statistics, web links to all documents in English.

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