There is a new twist in the dispute over anonymous requests for information between the platform fragdenstaat.de and the Federal Ministry of the Interior (BMI). The Federal Administrative Court in Leipzig has decided that it is permissible to process the postal address of a person who makes a request under the Freedom of Information Act (IFG) (BVerwG 6 C 8.22).
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“According to the Freedom of Information Act, anonymous applications are inadmissible,” wrote the Leipzig judges. Therefore, the authority must know the name and address of the applicant. The BMI decided “without any discretionary errors” in favor of the written form and the announcement by post, even though the applicant had opened electronic access in accordance with Section 3a Paragraph 1 VwVfG. An applicant must accept that the authority communicates with him by post despite having electronic access.
“Foundation pillar of information access”
fragdenstaat.de is operated by the Open Knowledge Foundation Germany. Since 2011, it has wanted to make it easier for users to exercise their right to access official information. From there it is now said that the Federal Administrative Court has removed “a cornerstone of access to information” with its ruling. “The new regulation is likely to deter many people from making inquiries to the authorities,” comments fragdenstaat.de. “Marginalized groups in particular understandably do not want to give out their private addresses in response to requests for information. The court completely ignores this.”
Even if it was easily possible for authorities to respond by email via fragsenstaat.de, people would now have to accept that “the authority communicates with them by post despite having opened electronic access.” There is talk everywhere about the digitalization of administration.
Instance back and forth
In the lower instance, the Higher Administrative Court (OVG) Münster decided differently in the dispute that took place between the BMI and the Federal Commissioner for Data Protection Ulrich Kelber. The OVG explains its decision by saying that it was not necessary for the BMI to collect the postal address when it processed the data. It is not clear from the IFG, nor from the principles of general administrative law, that the postal address must always be provided with an IFG application. In this individual case, there is no evidence that data collection was necessary.
The reason for the legal dispute was an IFG request for information from a citizen, which he had submitted to the BMI via fragdenstaat.de using a non-personalized email address generated there. The BMI then asked him to provide his postal address, otherwise the procedure could not be carried out properly. Kelber then issued the BMI a data protection warning. The BMI sued, and the Cologne Administrative Court ruled in favor of the ministry. Kelber, in turn, was successful in his appeal before the OVG.
Lawsuit possible
In the opinion of fragdenstaat.de, the judgment that has now been handed down should be a “wake-up call for the legislature to finally create a transparency law that deserves its name”. The traffic light coalition has been promising a bill for years, which should finally come this year. He must ensure that requests for information are also possible pseudonymously.
fragdenstaat.de wants to plan its course of action once the verdict is published. “Our goal is to ensure that access to information benefits everyone. To do this, we will expand our platform and litigate where possible.”
In March 2021, the FDP submitted a motion to the Bundestag in which, among other things, it called for “the Freedom of Information Act to be further developed into a genuine federal transparency law modeled on the Hamburg Transparency Act (HmbTG) and to place a particular focus on machine readability of the data.” The application was rejected by the Bundestag. The Greens support fragdenstaat.de's call for a federal transparency law. The coalition agreement, which was also signed by the SPD, contains the passage: “We will further develop the freedom of information laws into a federal transparency law.”
(anw)