Transparency: Under the guise of official secrecy

Austria likes to see itself as a modern democracy. But as far as public information is concerned, it's a late bloomer. Together with Luxembourg, it is the only country in the old EU that does not yet have a modern freedom of information law and is the only one in the EU in which official secrecy is still in the constitution.

Have you ever wondered on what basis political decisions are made in Austria? Which companies in Austria are subsidized or in which countries Austrian companies export which ones? Why the local council has just decided to expand a karting track? With whom do authorities conclude contracts on our behalf and how are they structured? Which studies were commissioned by public authorities and which findings reveal them? Unfortunately, all of these are questions to which one - at least in this country - does not get an answer.

Nevertheless, as people who are more or less attentive to the world, we are happy to live in a country where you get your salary paid on time, good water bubbles from the pipe and you finally find a parking space again and again. With all the conveniences that life brings here - at least for most - we do not realize that we live in the midst of censorship. Because we only get answers if they are politically desirable or at least not sensitive.

Overview Transparency Mind you, transparency laws are nothing new. Sweden was the first country to adopt 1766's Freedom of Information Act, but it was largely motivated by Parliament demanding more transparency from the king. This was followed by Finland in the year 1951, 1966 the United States and 1970 Norway. After the fall of the Iron Curtain and a strong civic emancipation movement, this trend gained further momentum. Citizens demanded more transparency from their governments in the face of unprecedented corruption scandals and the urgent need to address their communist past. Between the late 1990er and early 2000er years, other 25 Central and Eastern European countries passed transparency laws, which today have an international role model from a civil law perspective. This now global trend towards more transparency in administration is something to be proud of: The number of transparency laws adopted worldwide has more than doubled since 2002 and now accounts for three-quarters of the world's population.

The secret bureaucracy

Although Austria has a constitutional duty to provide information, according to which all public bodies have "information about matters of their sphere of influence", this is simultaneously made absurd by the specificity of official secrecy.

According to them, civil servants are "obliged to maintain secrecy on all facts known to them exclusively in their official activities", if their secrecy is in the interest of public order, national security, external relations, in the economic interest of a public body, for the purpose of preparing a decision or Interest of a party. Unless otherwise provided by law, it goes without saying. Official secrecy is constituted as the guiding principle of the local bureaucracy and forms an impenetrable wall for interested citizens and a shield of secrecy for political actors. As a result, it is also possible in Austria to "publicly keep secret" information about dubious counter-transactions, failed bank nationalisations and public liability over the years, and nevertheless to present the citizens billions in billions. According to Josef Barth, the founder of the Austrian Forum for Freedom of Information (FOI), "the corruption scandals that have become public in recent years have shown that they were only possible to a large extent because the actions of the administration are not transparent and thus deprived of public control were".

"The corruption scandals that have become public in recent years have shown that they were only possible to a large extent, because the actions of the administration were not transparent and thus they were beyond the control of the public."
Josef Barth, Austrian Forum Freedom of Information (FOI)

Transparency: freedom for information!

In the face of worldwide rampant corruption scandals, tax wastage and general mistrust of politics and bureaucracy, the civil society demand for an open, transparent administration is becoming ever louder. By now, this reputation has been answered by almost half of the world's nations and freedom of information laws have been passed, allowing citizens to view documents and public administration records.
The non-governmental human rights organization Reporters Without Borders, which enjoys observer status at the Council of Europe and UNESCO, writes: "Information is the first step towards change, so it's not just authoritarian governments who fear free and independent reporting. Where media can not report on injustice, abuse of power or corruption, there will be no public scrutiny, no free opinion and no peaceful reconciliation of interests. "
Freedom of information is the right of citizens to inspect documents and files of public administration. It brings political and bureaucratic action from the hidden and obliges politics and administration to account to their citizens. The right to information is now also enshrined in the European Convention on Human Rights and recognized as such by the European Court of Justice and the UN Human Rights Committee. Not least because it makes the preservation of other fundamental rights, such as the freedom of expression and the press or political participation, possible in the first place.

Together with the Spanish-based human rights organization Access Info Europe (AIE), the Canadian Center for Law and Democracy regularly draws up a global country ranking (Right To Information Ranking). It analyzes and assesses the legal framework for dealing with public information. In this ranking, Austria ranks at the bottom of the 95 countries studied worldwide.

Transparency: Austria is different

In Austria, the situation is somewhat different. Apart from Estonia, Luxembourg and Cyprus, we are the only country in the EU that has not yet passed a modern freedom of information bill, and the only one in which official secrecy is still enshrined in the constitution. Together with the Spanish human rights organization Access Info Europe (AIE), the Canadian Center for Law and Democracy regularly draws up a global country ranking (Right To Information Ranking). It analyzes and assesses the legal framework for dealing with public information. In this ranking, Austria ranks at the bottom of the 95 countries studied worldwide.
Toby Mendel, managing director of the Center for Law and Democracy, author of numerous studies and publishers of the ranking, states at the same time: "There are countries that have good transparency laws, but do not implement them, and others that have mediocre laws, their administration but still doing a good job. For example, the US has a mediocre transparency law, but enjoys considerable freedom of information. Ethiopia, on the other hand, has a good transparency law, but it is not implemented. Austria is a borderline case. It seems to somehow get away with its information law. "

"There are countries that have good transparency laws but do not implement them, and others who have mediocre laws but still do their job well. Austria is a borderline case. It seems to somehow get away with its information law. "
Toby Mendel, Center for Law and Democracy

The Council of Europe Convention on Access to Official Documents adopted by 2008 could not remedy this malady. In it, 47 European Foreign Ministers and European Parliament delegates have agreed to "strengthen the integrity, efficiency, effectiveness, accountability and legitimacy of public administrations" by giving their citizens the right to access official documents.

The outcry of the curious

Successfully ignoring the signs of the times, the Austrian government made even in June of this year by the announcement of a ban on exploitation for classified as classified public documents. It should criminalize the media exploitation of secret public records, even if they were leaked to the media anonymously. The protests against this project were not to be delayed and were surprisingly effective. All Austrian journalists' associations responded with a joint release and numerous statements and demanded vehemently the abolishment of the Austrian official secret and a modern information law on the principle "information should be the rule and secrecy the exception". Criticism also hailed on the part of the former Court President Franz Fiedler ("a radical measure that represents a step backwards into the 19 century"), by constitutional lawyer Heinz Mayer ("Restriction of press freedom"), the Association of Parliament editors ("restriction of reporting from Parliament ") And not least on the part of the opposition.
The topic was given a powerful media boost by the Forum Freedom of Information (FOI), which was formed around former profile editor Josef Barth. The FOI sees itself as a "watchdog of freedom of information" in Austria and operates the consciousness and information campaigns transparenzgesetz.at and questiondenstaat.at. The former was even awarded 2013 the Concordia Prize for Press Freedom. From the point of view of the FOI, a modern freedom of information law is indispensable for five reasons in particular: it makes corruption more difficult, avoids tax wastage, strengthens confidence in politics, simplifies and accelerates administrative processes and facilitates co-determination.
The campaigns showed amazing effects. After a week, the prohibition of exploitation was off the table. Club boss Andreas Schieder (SPÖ) announced a renunciation and a spokesman for club boss Reinhold Lopatka (ÖVP) said the affair had been "a misunderstanding".

The quasi-freedom of information law

At the beginning of the year, the media and public pressure built up last year prompted the government to submit a draft law on the revocation of official secrecy. This should also regulate the information provided by public authorities. It provides for an obligation to publish information of general interest and a constitutional right of access to public information. Information of general interest includes, in particular, general directives, statistics, opinions and studies prepared or commissioned by the public authorities, activity reports, business classifications, rules of procedure, registries, etc. This information shall be provided in a manner accessible to all - without specific request - be published. From the "Holschuld" of the citizens should be a "obligation" of the administration. Last but not least, this draft covers not only state bodies, but also companies under the control of the Court of Auditors.
However, there are extensive derogations in this bill: information, secrecy for reasons of foreign and integration policy, national security, public order, preparation of a decision in the economic interest of a local authority, data protection, information intended to protect others equally important public interests are expressly arranged by federal or provincial law ", shall be exempted from the obligation to inform. Whatever that means.

"For us, there is serious concern that, instead of the declared goal of transparency, there is an extension of official secrecy. The law certainly has no shortage of exceptions ... It remains unclear whether in the end more transparency or more intransparency can be expected. "
Gerald Grünberger, Association of Austrian Newspapers VÖZ, on the bill

The overall 61 statements, which have been submitted by various state governments, ministries, state institutions and companies, interest groups and local authorities, suggest that this law will not be adopted soon. Despite the fundamentally positive tenor towards the desired freedom of information, various criticisms and problem areas were highlighted.
While the Administrative Court sees the protection of ongoing proceedings, the persons involved and the judiciary threatened, sees the ORF Editorial Board in particular the editorial secret in danger and the data protection authority just the data protection. ÖBB Holding equates the bill "abolishing data protection for companies subject to disclosure", whereas the Federal Competition Authority criticizes that no significant expansion of the freedom of information can be discerned. In general, state-owned companies fear a significant competitive disadvantage compared to non-state-owned companies and administrative authorities, a considerable additional personnel and financial expenses.
Particularly harsh criticism came from the Association of Austrian Newspapers (VÖZ): "For us, there is the serious concern that instead of the declared transparency to the goal to an extension of official secrecy comes. After all, the law certainly has no shortage of exceptions ... It remains unclear whether in the end more transparency or more intransparency can be expected, "said VÖZ Managing Director Gerald Grünberger.

"It is really high time for Austria to catch up with the rest of Europe!"
Helen Darbishire, Think Tanks Access Info Europe

International is elsewhere

While in Germany, the Transparency Act seems to have to be reinvented, clear international standards have already been developed with regard to its formulation and implementation. These are based, for example, on the Council of Europe Convention on Access to Official Documents, the UN Human Rights Committee, decisions of the European Court of Human Rights (EUCI), opinions of the Organization for Security and Co-operation in Europe (OSCE) and last but not least experiences a hundred states that are systematically processed by international think tanks. This concentrated expertise does not seem to be relevant to the Austrian legislator. Helen Darbishire, CEO of the Madrid-based Access Info Europe think tank, sees the key elements of a transparency law as being that all public administration information is fundamentally public and at the same time the government formulates a limited number of well-justified exceptions. In addition, a strong and well resourced information officer should monitor the implementation of the law and handle public complaints quickly and for free. "It's really high time for Austria to catch up with the rest of Europe!" Said Darbishire.

"Individuals in the administration saw the matter very complicated and feared that Hamburg would no longer be governable. But, surprisingly, most were happy to finally have a clear handle, to not have to hide anymore, that finally open discussions could take place and it became clear what they are actually doing. "
Daniel Lentfer, Initiative "More Democracy Hamburg" on the Model Act Hamburg

Model Hamburg

The Hamburg Transparency Act, which is often used as a model for Austria, includes three core elements: a duty of publication of authorities for closed contracts, purchased expert opinions and the like; the creation of a central information register, which publishes reports and public administration documents, and, thirdly, the creation of a single information officer, who oversees freedom of information and data protection and acts as a focal point for citizens' information concerns. The Hamburg Transparency Act includes numerous public documents that are classified in this country. Daniel Lentfer is co-initiator of the citizens' initiative "Mehr Demokratie Hamburg", which initiated and helped to shape the Hamburg Transparency Act. In his view, it is essential "that information be published regardless of whether it is politically desirable or not. This is the only way governments can build trust again. "When asked how the Hamburg initiative dealt with administrative reservations, Lentfer notes:" Individuals in the administration saw things as being very complicated and feared that Hamburg would no longer be governable. But, surprisingly, most were happy to finally have a clear handle, not having to hide anymore, that finally open discussions could take place and it became clear what they are actually doing. "Last but not least, the administration pursued the goal of" the trust of the citizens and people understand how administration works. "

When bureaucracy gets out of hand

The impact that it can have when the public is systematically shielded from political and bureaucratic processes is shown by the controversial negotiations of the European Commission with Canada and the US on the Transatlantic Free Trade Agreements CETA and TTIP. In the process, we are being shown just how closed-door democracy, ecology and social rights are sacrificed to corporate interests and how politics can be castrated by investor protection clauses, arbitration tribunals and regulatory boards. And this despite the fierce opposition of an unprecedented civil society alliance of some 250 non-governmental organizations (stop-ttip.org), numerous opposition parties and broad sections of the population.
All of this is only possible because the public does not have access to the negotiating documents. If information affecting "the financial, monetary or economic policies of the Community or a Member State" were not exempted from freedom of information, we could follow the negotiations live and respond in a timely manner. And not only when the EU member states have already concluded bilateral investment protection treaties with third countries on the 1200 and Germany is already being sued for its nuclear phase-out. According to Alexandra Strickner, head of attac Austria, the TTIP poses an enormous threat to democracy. It expects a tidal wave of complaints from American but also European corporations, with which national courts and treasuries will have to deal. "Should these claims be complied with in the designated arbitral tribunal, public money must be used for potentially lost corporate profits." Strickner sees another danger in the intended "Council for Regulatory Cooperation". Future laws should be consulted in the transatlantic council, according to the leaked negotiating documents, before they even reach the national parliaments. "Corporations thus gain privileged access to legislation and can sometimes prevent laws. Democracy is thereby reduced to absurdity. "It remains to be seen how an initiated EU citizens' initiative will work against the agreements.