Deutsch auf Deutsch
 

Walter Keim, Email: walter.keim@gmail.com
Torshaugv. 2 C
N-7020 Trondheim, den 28. February. 2005
 

To
Members, Parliamentary Parties and Committees of
German Parliament (Deutschen Bundestag)
Platz der Republik 1
D-11011 Berlin
 

Hearing: 14. March 2005: Freedom of Information Law without Expiration and with More Disclosure

 

I thank the Green party, the SPD and the Committee of Interior Affairs of the parliament, that all who are interested are invited to contribute with written statements in this hearing. Several experts have been invited among others: Dr. Alexander Dix (Landesbeauftragter für den Datenschutz und für das Recht auf Akteneinsicht Brandenburg),  Dr. Peter Eigen (Transparency International, Berlin), Dr. Manfred Redelfs (Greenpeace, Netzwerk Recherche e. V.) and Kjell Swanström (Parliamentary Ombudsmann, Stockholm).

A Freedom of Information (FOI) law has been promised since 1998.

When the Ministry of Interior invited citizens summer 2001 to discuss a Freedom of Information law, I appreciated this initiative because I saw the chance that Germany can catch up with the international development.

In December 2001 there was no draft ready, therefore I suggested in the Petition of 21. December 2001, that the parliament gives the law by own initiative.

Up to now Germany is the only major country in Europe (in the federation and 12 of 16 local states) without the human right of access to documents hold by public authorities: http://wkeim.bplaced.net/foi-europe.gif and http://wkeim.bplaced.net/foi-laws-eu-de.gif.

I would like to emphasize that the right to information is part of the right to freedom of expression, which is confirmed by international human rights laws, specifically by the International Pact of Civil and Political Rights (article 19), and the Universal Declaration of Human rights (article 19), all of them ratified by Germany and incorporated into German law. Germany violates this pact.

All over Europe access to public documents was adopted on the basis of recommendation 81 (19) of CoE of the year 1981. On Balkan only Montenegro is missing. Will Germany fall back the last Balkan state? Will European standards of citizen rights have a chance in Germany?

Both Hong Kong and Shanghai have adopted Freedom of Information laws to attract investors. This is a test for plans in all of China to implement Freedom of Information, one of the fasted growing economies in the world. Will in 5 years after expiration of the FOI law in Germany, be a law in China but not in Germany? Is German bureaucracy less flexible than the communist party in China? Chancellor Schröder stopped Freedom of Information before the election 2002 to please the industry. But does the German industry (e. g. BDI: German Federation of Industry), understand the benefits of Freedom of Information and what FOI is about?

UN, OSCE and AOS confirm in a joint declaration 6. December 2004, that Access to Information is a human right:

The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.

I appreciate that OSCE concentrates on access to public documents in 2005. All OSCE States including Germany will be monitored: http://home.broadpark.no/~wkeim/files/osce-050106.htm.

The Council of Europe will review the situation in the context of a visit of the Human rights commissioner in 2005. There was a surveys on Freedom of information in Europe.

I appreciate that the Committee of Petitions supported the Petition of 21. December 2001 on Freedom of Information on 1 December 2004. The vote by coalition parties and FDP (Free Democratic Party) says that the government has to take the petition into account. On 16. December 2004 the federal parliament approved this (BT Drucksache 15/4426). The president of the German parliament send the Petition of 22. December 2004 to chancellor Schröder. An answer should be given within 6 weeks.

In Greek democracy means that people govern. Official secrecy has its roots in the authoritarian state of the past, which did not accept citizens right to know.

On 17. December 2004 the coalition parties suggested their own draft law to parliament (BT Drucksache 15/4493). (English translation here)

The Green party (BÜNDNIS 90/DIE GRÜNEN) have fought for Freedom of Information a long time and suggested laws in 1986 and later 1997 to the parliament.

The Social Democratic party (SPD) was right to point out that the law continues the tradition of Willy Brandts to establish "more democracy". I would like to add that the visions and ideas of former presidents Gustav Heinemanns that the state, should become the servant of the citizen are finally paid attention to.

The Free Democratic party (FDP) and the member of parliament Petra Pau (PDS) supported Freedom of Information and demanded improvements of the draft law.

On the opposite there is, as the magazine "die Zeit" formulated 2002, the revolt of bureaucracy ("der Aufstand der Amtsschimmel"). Is this revolt, (according to the "Zeit") "of the united ministerial bureaucracy against the FOI law ... (a) battle of retreat, because a cultural revolution has started in Germany (in 4 of 16 federal states)"?

Minister of Interior Schily failed to stop the parliament to discuss a draft law 17. December 2004. In the discussion in parliament Schily supported the doubt of the CDU/CSU opposition party. He supported the revolt of bureaucracy (Aufstandes der Amtsschimmel). I have written a letter to Schily on 14. December 2004 and asked, if he can guarantee to always be committed to the human right of Freedom of Information. Schily said to welcome the law in his speech 17. December 2004 in parliament, but had so many doubt about the draft, that he could not remove doubt to be committed to the " acknowledge of inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world" (Article 1 (2) Basic Law).

In addition Schily tried to take away funding of the German Institute of Human Rights (Deutschen Institut für Menschenrechte), because the institute wanted to monitor human rights in Germany as UN Resolution 48/134 and Recommendation No. R (97) 14 of CoE asked for. The first director Percy MacLean had to resign because plans to monitor human rights violations in Germany. Percy Maclean got the "Carl-von-Ossietzky-Medaille" of the international league of human rights (Internationalen Liga für Menschenrechte) for his merits supporting human rights in Germany

According to Article 20 Basic Law: "All state authority is derived from the people." and "the executive and the judiciary are bound by law" (given by parliament elected by the people) "and justice". Therefore in Germany a democracy of European type is possible, if members of parliament want it and go for it. The parliament does not have to fulfil the wishes of the government. On the contrary the government is bound by what parliament decides.

In the discussions in parliament there is a solid majority for a citizen friendly FOI law. If the minister of interior Schily does not like this, he can choose to become a member of the opposition who shares his doubts. Give the right answer to the revolt of the bureaucracy ("Aufstand der Amtsschimmel") and strengthen your power by given citizens Freedom of information. Give this right permanent without a date of expiration.

The most important argument for improving transparency of government with the help of Freedom of information is to strengthen thrust in the state and fight mistrust. "Transparency"-chairman  Peter Eigen says "According to a international survey the political class in Germany is perceived least trustworthy". In some elections the "party" of electors not voting is on its way from relative to absolute majority. Antidemocratic tendencies and parties are growing. therefore it would be irresponsible not to use the means of improving trust into the state by using Freedom of information found all over Europe.

The Charter of Fundamental Rights of the EU gives Freedom of Information in Article 42, access to documents in Article 41 (2), the right to complain in Article 43 (Ombudsman) and the right to answers within reasonable time in Article 41 (1). The "European Codex of god Administration" defines latest two months to get a fair answer (Article 17). As European my opinion is that both you and your government should respect the fundamental rights of the Charter of the European Union.

Give German citizens, as the constitution says, these rights which are common in Europe starting with Freedom of information.

Force German bureaucracy to respect human rights.

«International human rights are guaranteed by international treaties giving rights to every persons against the state and other communities. This is a protection of basic aspects of humans and their dignity in peace and war.» (Walter Kälin, in: Das Bild der Menschenrechte. Herausgegeben von Lars Müller, Walter Kälin, Judith Wyttenbach. Baden 2004, page 17) [http://www.humanrights.ch/home/de/Einsteigerinnen/Begriff/idcatart_7564-content.html]

Human rights are basic rights of the individual against organised collectives (e. g. states).

Therefore I did not accept that Germany tries to take away the right of Freedom of information and in February 2004 I applied at the administrative court in Berlin: http://wkeim.bplaced.net/files/041106btf.htm and EU: http://wkeim.bplaced.net/files/eu-041117.htm that Germany is sentenced. Because of a mistake the Petition vom 21. December 2003 on human rights: Invitation of the Human rights Commissioner of the CoE was added to the Petition of 21. December 2001 about Freedom of Information. which is closed now. The administrative court is asked to support that the petition of  21. December 2003 on (further) Human right violations in Germany is answered.

Regards,  

Walter Keim

Who is responsible for the lack of freedom of information:  http://wkeim.bplaced.net/I_accuse.htm
Support freedom of information: http://wkeim.bplaced.net/foi.htm#e-mail, http://wkeim.bplaced.net/petition_eu.htm
Support patients rights: http://wkeim.bplaced.net/patients.htm#e-mail

List of appendices:

Kopie: Administrative Court Berlin: Walter Keim ./. Bundesrepublik Deutschland VG 2 A 85.04,
Landtagspräsident Baden-Württemberg, Ministerpräsident Teufel Baden-Württemberg, Fraktionen des Landtages in Baden-Württemberg, Deutsches Helsinki-Komitee für Menschenrechte, Sicherheit und Zusammenarbeit in Europa, e.V., Bundestagsausschuss für Menschenrechte und Humanitäre Hilfe

8. July 2005: The parliament (Bundestag and Bundesrat) adopt a Freedom of Information law.

Support FOI by E-Mail to the Federal Government and Parliament in Germany

Freedom of Information came 1766 to Sweden, 1951 to Finland, 1966 to den USA and 1970 to Norway. In 1981 the Council of Europe gave "Recommendation No. R (81) 19" on the access to information held by public authorities. Germany is the only country in the EU without such a law. In order to keep up with the international development freedom of information should also be adopted in Germany.

Support the German Freedom of Information Law, by the following E-Mail to the German Government (click here):
I support the call to the German Government and Parliament for a democratic and accountable Freedom of Information Law on access to public documents.

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