Freedom of information: access, expression and digital rights

The first developments in freedom of information took place in Sweden in 1766 with the introduction of the principles of public access. This was intended to ensure control and transparency of government activities. Free access to information is still firmly anchored in Sweden today. Finland has had access rights to official documents since 1951.

Due to the democracy movement of the 1960s in the USA, the Freedom of Information Act (FOIA) was enacted in 1966. This allows any person access to the files of an authority.

In the early 1970s, more and more European countries enacted freedom of information laws. Denmark and Norway made a start in 1970, followed by France (1978) and Belgium (1994). All these countries had taken their cue from the Swedish law. Subsequently, other countries followed suit and enacted their own freedom of information laws (including Canada in 1985 and Mexico in 2003).

Since 1990, the EU has been dealing with the issue and has launched several regulations and directives. In 2001, the Regulation on public access to European Parliament, Council and Commission documents was adopted by the EU.

Switzerland enacted a Freedom of Information Act in 2004 and in the Federal Republic of Germany a Freedom of Information Act came into force in 2006.

A general right of access to information for citizens to documents of federal authorities - irrespective of any direct personal involvement - came into force in Germany as the Freedom of Information Act on 1 January 2006. In addition, similar laws exist in the Länder with regard to Land authorities (including local authorities).

The Environmental Information Act created further transparency for the first time in 1994 for the sub-sector of the environment.

The freedom of the recipient is guaranteed in the Basic Law (Article 5 (1) sentence 1, second part of the Basic Law). In this context, "generally accessible" means those sources of information which are technically suitable and intended to provide information to the general public.

As a rule, the right of access to information does not cover matters of internal and external security, investigative and judicial proceedings, intellectual property, trade and business secrets and personal data, where the general principle is that the right of access to information does not infringe the right of informational self-determination.

Country level

Freedom of information laws have already come into force in the following federal states

• Brandenburg (as of 11 March 1998)
• Berlin (as of 16 October 1999)
• Schleswig-Holstein (as of 10 February 2000)
• North Rhine-Westphalia (as of 1 January 2002)
• Mecklenburg-Western Pomerania (as of 29 July 2006)
• Hamburg (as of August 1, 2006)
• Bremen (as of August 1, 2006)
• Saarland (as of 15 September 2006)
• Thuringia (as of 29 December 2007)
• Saxony-Anhalt (as of 1 October 2008)
• Rhineland-Palatinate (as of 1 January 2009); superseded by the State Transparency Act (LTranspG) of 27 November 2015.
• Baden-Württemberg (as of December 30, 2015)
• Hesse (as of 25 May 2018)

Baden-Württemberg

In Baden-Württemberg, a corresponding bill was rejected by the Landtag on 15 December 2005. In the fourth year of government of the Green-Red coalition, an agreement from the coalition agreement was to be implemented and a Freedom of Information Act was to be created. In the course of 2014, the Baden-Württemberg Ministry of the Interior wanted to present a corresponding draft law. Cornerstones have already been presented within the ministry. Netzwerk Recherche criticised that the draft law was oriented towards the already cautious federal Freedom of Information Act of 2006 and fell behind it due to further exemptions. The law regulating access to information in Baden-Württemberg (abbreviated to Landesinformationsfreiheitsgesetz, LIFG) was promulgated on 29 December 2015 and came into force the following day.

Bavaria

In Bavaria, there were seven legislative initiatives between 2001 and 2011, eleven in total since 2001, by the Greens, the SPD, but also in 2010 by the Free Voters. However, these were all rejected in the Landtag by the CSU majority and, from the Landtag election in 2008, also by the CSU-FDP coalition. However, freedom of information statutes are becoming established at the municipal level.

On the initiative of local parties and alliances, freedom of information statutes are now in force in around 80 cities and municipalities (such as Munich, Nuremberg, Regensburg, Würzburg, Ingolstadt, etc.), which guarantee freedom of information at least for the municipality's own sphere of activity. In 2003, the associations Mehr Demokratie, Transparency International and the Humanistische Union joined forces in Bavaria to form the Alliance for Freedom of Information in order to promote freedom of information laws at state and municipal level. Currently, in addition to the founding members, 13 associations and parties belong to the Alliance.

Berlin

A law promoting freedom of information in Berlin (Berlin Freedom of Information Act - IFG) came into force on 15 October 1999. A civil society alliance has written a draft for a transparency law which it intends to introduce throughout Berlin by means of a referendum.

Brandenburg

On 10 March 1998, Brandenburg was the first federal state to adopt a Freedom of Information Act in the form of the Act on Inspection of Files and Access to Information (Akteneinsichts- und Informationszuganggesetz, AIG). A last reform took place in 2013 with some extensions and concretizations. There is a constitutional right to inspect files and other official documents which is equivalent to a fundamental right.

Bremen

In Bremen, the Freedom of Access to Information Act for the Land of Bremen (Bremer Informationsfreiheitsgesetz, BremIFG) was passed on 16 May 2006 (BremGBl S263) and came into force on 1 August 2006. A special feature in comparison to the IFG of the federal government and all other German IFGs is an extended publication obligation via a central electronic information register "in order to make it easier to find information" (§ 11 (5)). Behind this is the assessment that the usual requirement that an applicant must direct his or her request to the body that holds the information sought and describe it as precisely as possible represents a hurdle that many citizens are unable to overcome. In the central information register, which is accessible online, one can use various search terms to find out which documents could correspond to the information request and download them. Therefore, one can speak of a new generation of IFG, which is characterised by a transition from the citizen's obligation to fetch to the authority's obligation to bring. The BremIFG is limited in time and provides for an evaluation before the expiry of the time limit. The evaluation report was submitted to the Bürgerschaft in April 2010 together with a statement by the Senate. There, the amendment was supposed to take place during the legislative period at that time (before May 2011). We are not aware of any result.

Hamburg

On 13 June 2012, the Hamburg Parliament passed the "Hamburg Transparency Act" (HmbTG). The law was written by a popular initiative of Mehr Demokratie, Transparency International and the Chaos Computer Club as well as several alliance partners in a wiki. The core elements of the law are an obligation to publish all information of public interest: among other things, contracts for the provision of public services, expert opinions, geodata, building permits, notifications of grants (§ 3), an expansion of the definition of public authority to include, among others, companies that perform public functions (§ 2 para. 3), as well as a clear restriction of exceptions, e.g. trade and business secrets (§§ 4 to 7). The Transparency Act thus goes significantly beyond existing Freedom of Information Acts (IFGs). The law came into force on 6 October 2012. The publication obligation is fulfilled on the Hamburg Transparency Portal.

Hesse

The Hessian Data Protection and Freedom of Information Act (HDSIG) came into force on 25 May 2018. The Hesse Environmental Information Act (HUIG) has already been in force since 22 December 2006.

Mecklenburg-Western Pomerania

Since 10 July 2006, the Act regulating access to information for the state of Mecklenburg-Western Pomerania (Freedom of Information Act - IFG M-V) has governed access. An evaluation was last carried out in 2009.

Lower Saxony

In Lower Saxony, where there is also no Freedom of Information Act at state level, the city of Göttingen was the first municipality to enact a Freedom of Information Statute. Likewise, in March 2012, the city of Braunschweig enacted a corresponding statute, as well as nine other municipalities in the meantime.

On 31 January 2017, the government of Lower Saxony approved a draft Freedom of Information Act that was to come into force by autumn 2017. This draft was not completed in that legislative period before the early elections. Unlike, for example, the IFG of the federal government, the draft provided for the levying of fees according to the actual amount of work required to respond, without a cap. This also applied to rejecting notices. The law did not provide for an active publication of information by public authorities without a prior citizen request.

North Rhine-Westphalia

The Freedom of Access to Information Act for the State of North Rhine-Westphalia (North Rhine-Westphalia Freedom of Information Act - IFG NRW) came into force on 27 November 2001. The law was evaluated in 2004.

Rhineland-Palatinate

On 11 November 2008, the Landtag of Rhineland-Palatinate voted in favour of a Land Freedom of Information Act (LIFG), which had been in force since 1 January 2009. This was replaced by the State Transparency Act (LTranspG) of 27 November 2015, which came into force on 1 January 2016.

Saarland

The Saarland Freedom of Information Act (SIFG) came into force on 12 July 2006. An evaluation of the law was carried out in 2010, with the result that it will be continued without changes.

Saxony

There is no freedom of information or transparency law in Saxony. Municipal regulations have only existed in Leipzig and Dresden since 2012.

Saxony-Anhalt

In Saxony-Anhalt, the Saxony-Anhalt Information Access Act (Informationszugangsgesetz Sachsen-Anhalt, IZG LSA) was enacted on 19 June 2008; published in GVBl. LSA 12/2008 p. 242. The Act entered into force on 1 October 2008. It stipulates that everyone is entitled to access official information in accordance with the Act. The Cost Ordinance (IZG LSA KostVO) issued in connection with the Act was considered one of the most expensive in Germany until it was amended in 2019. Fees of up to €500 can be charged for providing information. Under the law, the Saxony-Anhalt State Commissioner for Data Protection also performs the duties of the State Commissioner for Freedom of Information. In order to facilitate the implementation of the law, he has drawn up comprehensive instructions for its application.

Schleswig-Holstein

The Information Access Act for the State of Schleswig-Holstein (IZG-SH) was enacted on 19 January 2012.

Thuringia

The State of Thuringia has regulated access to information in the Thuringian Freedom of Information Act (ThürIFG) of 14 December 2012.