DAS UNIVERSELLE LEBEN ALLER KULTUREN WELTWEIT E.V. v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant, Das Universelle Leben Aller Kulturen Weltweit e.V., is a German association, which has its seat in Marktheidenfeld. It was represented before the Court by Mr C. Sailer, a lawyer practising in Marktheidenfeld. 2 3. The applicant is a registered association claiming to represent the interests of the religious community “Universelles Leben” that is gathering people in a “new, true Christian faith conveyed by a new prophet sent by God”. It did not provide further information on its members and specific activities. 4. The Federal Ministry for Family, Senior, Women and Youth affairs (hereinafter: “the Federal Ministry”) ordered the Federal Administrative Agency (Bundesverwaltungsamt – hereinafter “the Federal Agency”) to maintain an information division regarding “so-called youth sects and psycho-groups” and, within its activities, to gather information on the applicant association. 5. Relying on the Federal Freedom of Information Act (see paragraph 11 below), the applicant association requested access to files containing all the information gathered by the Federal Agency in this regard. On 30 March 2007 the Federal Agency refused the applicant’s request. 6. Subsequently, the applicant association filed an action against the refusal with the Cologne Administrative Court. During the court proceedings, the court ordered the Federal Agency to list and describe the documents in its possession so that the applicant association could specify its claim, and a comprehensive assessment of the lawfulness of the refusal could be made. 7. The Federal Ministry, which had initially requested the collection of information and was therefore an interested third party in the proceedings, declared an exemption of disclosure (Sperrerklärung), by virtue of Article 99 (1) of the Code of Administrative Court Procedure (see paragraph 12 below). It held that there was no duty to produce the documents or even to reveal their existence and contents in the court proceedings and to the applicant association. 8. Subsequently the matter was transferred to the Federal Administrative Court which, according to Article 99 (2) of the Code of Administrative Court Procedure, was the competent authority to assess the lawfulness of the exemption of disclosure. 9. On 25 June 2010 the Federal Administrative Court viewed the documents in question and decided on the legality of the exemption of disclosure. In a comprehensive introduction the court outlined its own standards of examination and explained that Article 99 (2) of the Code of Administrative Court Procedure would require an assessment if the provided reasons for confidentiality would be firstly relevant to the specific case and secondly sufficient to justify an exemption of disclosure. Applying these standards, the Federal Administrative Court found that a general, unsubstantiated reference to the confidentiality of internal working methods of the Federal Agency could not provide a sufficient reason. However, the court also established that the Federal Agency was, as a State authority, bound by the obligations provided in the German Basic Law (Grundgesetz). Consequently, as argued by the Federal Ministry, the right to privacy of third persons, protected by the German Basic Law, and in particular the protection of informants could generally justify an exemption of disclosure. Turning to the facts of the case, the court ruled that for some parts, consisting of public information, such as newspaper articles, internet printouts, court judgments or publications of the association itself, no reason for confidentiality could be adduced. Therefore, the refusal to produce these documents was held to be unlawful. However, the court accepted the refusal of disclosure regarding other documents concerning the applicant association. These concerned reports from former members of the applicant association who had left the community. Those persons had revealed sensitive personal information about their private and religious life to the agency. The Federal Administrative Court held that the refusal to produce these documents was justified in order to protect the anonymity of the sources of information and the private information of third parties. It further argued that there was no other possibility than non-disclosure, since the small number of possible sources would allow identification even if the documents were edited. Furthermore, it found that the statements did not include any defaming or libelous remarks. 10. On 22 August 2011 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the part of that decision which upheld the refusal, without providing reasons (no. 1 BvR 2016/10). 11. The relevant provisions of the Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act Informationsfreiheitsgesetz) read as follows: “Section 1 Underlying principles (1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law. (2) The authority may furnish information, grant access to files or provide information in any other manner. Where an applicant requests a certain form of access to information, the information may only be provided by other means for good cause. In particular, substantially higher administrative expenditure shall constitute good cause. (3) Provisions in other legislation on access to official information shall take precedence, with the exception of Section 29 of the Administrative Procedure Act and Section 25 of Book Ten of the Social Code.” 12. Article 99 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) reads, insofar as relevant, as follows: “(1) Authorities shall be obliged to submit certificates or files, to transmit electronic documents and provide information. If the knowledge of the content of these certificates, files, electronic documents or this information would prove disadvantageous to the interests of the Federation or of a Land, or if the events must be kept strictly secret in accordance with a statute or due to their essence, the competent supreme supervisory authority may refuse the submission of certificates or files, the transmission of the electronic documents and the provision of information. (2) On request by a party concerned, the Higher Administrative Court shall find by order without an oral hearing whether the refusal to submit certificates or files, to transmit the electronic documents or to provide information is lawful. If a supreme federal authority refuses the submission, transmission or information on grounds that the interests of the Federation would be impaired were the content of the certificates or files, of the electronic documents and the information to become known, the Federal Administrative Court shall decide; (...) The supreme supervisory authority shall submit the certificates or files refused in accordance with subsection 1, second sentence on request by this panel of judges, transmit the electronic documents or provide the refused information. It shall be subpoenaed to these proceedings. (...)”