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Access to state-held information – a fundamental right ?

Posted on October 16, 2007 | Filed Under fundamental rights 

An Austrian lawyer has sought access to a document hold by the Austrian Federal Ministry for Internal Affairs – to the so called handbook on the Niederlassungs- und Aufenthaltsgesetz. It’s a document which contains guidelines for the authorities regarding the application of the Law on Residence and Settlement in Austria. The Ministry refused to provide the lawyer with the requested document. Even when asked by the Austrian Parliament the Ministry refused to publish the document. It argued that it is not obliged to do so (the “Standard” reported). Is that right?

Art 20 § 4 of the Austrian Federal Constitutional Law states that public bodies shall impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy. But as Art 255 EC Treaty (which regulates the access to European documents) this provision does not formulate a right for a citizen or a person; it’s just laid down as a general principle. Therefore, public authorities are not obliged to impart the requested information on grounds of Art 20 § 4.

Until recently, a right of access to state-held information was neither granted on grounds of Art 10 (freedom of interpretation). The Court of Human Rights repeatedly hold that the right to freedom to receive information as laid down in Art 10 ECHR merely “[…] prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart on him,” and that it „[…] cannot be construed as imposing on the State […] positive obligations to disclose to the public any secret documents or information”.

With the Sdruzeni Jihoceske Matky case from 10. July 2006 the Straßbourg Court seems to strike a new path. For the first time it applied Article 10 ECHR in an access to public documents case. The case concerned a refusal to give an ecologist Non-Governmental organization access to documents and plans regarding a nuclear power station. Although the Court decided that there had not been a breach of Article 10, it explicitly recognized that the refusal by the Czech authorities was an interference with the right to receive information, because the requested documents were related to a matter of public interest.

From this it follows that States are in principal obliged to grant access to documents which are of public concern or an ongoing political debate. It can only refuse the access within the scope of the conditions set forth in Article 10 § 2 of the Convention which implies that such a refusal must be prescribed by law, be based on a legitimate aim and especially must be necessary in a democratic society.

Whether the Austrian Federal Ministry for Internal Affairs Ministry would have been able to justify its refusal under these criteria when brought before the ECHR is questionable. I doubt. Well anyway, due to an anonym sender the handbook appeared and its quite interesting to read.

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