Judgment of 25 June 2015 -
BVerwG 7 C 1.14ECLI:DE:BVerwG:2015:250615U7C1.14.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 25 June 2015 - BVerwG 7 C 1.14– para. 16.
1. When providing mandate-related support to its Members by assisting work of its Research Services, the Bundestag (Federal Parliament) is under an obligation to furnish information pursuant to section 1 (1) of the Freedom of Information Act (Informationsfreiheitsgesetz).
2. An employee of an authority who, in fulfilling his official duties, created a work protected by copyright, does, as a rule, grant his employer such right to use as the employer needs in order to be able to grant access under the Freedom of Information Act.
3. The authority under an obligation to furnish information, when taking a decision on exercising the copyrights granted to it, must take into account the opposing legal objectives and the legal obligations resulting thereof; a general priority of the copyright granted to the authority does not ensue from section 6 (1) first sentence of the Freedom of Information Act.
Sources of law
Basic Law for the Federal Republic of Germany GG, Grundgesetz article 38 (1) second sentence Freedom of Information Act IFG, Informationsfreiheitsgesetz section 1 (1), section 5 (2), section 6 first sentence, section 7 (4) Act on Copyrights and Related Rights UrhG, Urheberrechtsgesetz section 2 (1), section 5 (2), section 6 (1), sections 12, 16, 17, section 31 (5) second sentence, section 43
Summary of the facts
The claimant requests access to official records of the Bundestag (Federal Parliament).
By letter of 21 June 2011 the claimant, a journalist, applied - under explicit reference to the Freedom of Information Act (IFG, Informationsfreiheitsgesetz) - to the Bundestag for submission of copies of five documents and two documentations drawn up by the Research Services of the Bundestag as well as a translation drawn up by the Translation Service of the Bundestag of an essay published in an English-language journal. These documents had been produced for former Member of the Bundestag, Karl-Theodor zu Guttenberg, and were used by him for his dissertation. By notice of 4 July 2011 the Bundestag refused the submission.
Following an unsuccessful objection, the claimant brought an action before the Administrative Court. By judgment of 14 September 2012 the Administrative Court committed the defendant to furnish copies of the requested documents. Upon the appeal on points of fact and law, the Higher Administrative Court dismissed the action by judgment of 13 November 2013. The claimant’s appeal on points of law was successful.
11 The admissible appeal on points of law is well-founded. The judgment appealed is based on a violation of federal law (section 137 (1) no. 1 Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The Higher Administrative Court incorrectly determined the scope of application of the Freedom of Information Act (1.). The judgment is not correct on other grounds (section 144 (4) VwGO); the defendant cannot invoke a reason for refusal (2.).
12 1. The opinion of the Higher Administrative Court, that the Bundestag, when giving mandate-related support to its members through assistance provided by the Research Services and the language service, is not under an obligation to furnish information pursuant to section 1 (1) of the Federal Act Governing Access to Information held by the Federation (Freedom of Information Act, IFG - Informationsfreiheitsgesetz) of 5 September 2005 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2722), amended by article 2 (6) of the law of 7 August 2013 (BGBl. I p. 3154), is incorrect.
13 a) section 1 (1) first sentence IFG stipulates obligations for the federal authorities. The law is not based on an organisational, but on a functional concept of what constitutes an authority. An authority is therefore any agency in terms of an independent organisational unit, discharging public administrative tasks. This is to be determined by substantive legal criteria; neither does it depend on the scope of application of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) nor on an external legal effect. Section 1 (1) second sentence IFG, according to which other federal bodies and institutions are included in the scope of application of this law as well, to the extent that they are discharging public administrative tasks, is of purely declaratory significance. It merely clarifies that institutions which do not qualify as authorities under organisational rules, can, in relation to certain fields of activity, nonetheless be authorities in a functional sense. Section 1 (1) first sentence IFG is based on such an approach, differentiating according to the respective function exercised (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 3 November 2011 - 7 C 3.11 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts)) 141, 122, para. 11, 16 et. seqq. and of 15 November 2012 - 7 C 1.12 (…)).
14 In the present context it therefore does not matter that the administration of the Bundestag as an auxiliary institution to the constitutional body Bundestag is classified as a supreme federal authority (…), at the same time however emphasising its exceptional status compared with the federal or even ministerial administration as well as with the “executive power” (….).
15 In contrast, it is decisive that the scope of application of the Freedom of Information Act exclusively refers to the administrative activity in its substantive sense. In this context, the concept of what constitutes administration is, in principle, to be defined negatively by defining its respective function in relation to other state functions. In doing so, this definition is not, as the Senate has decided on the question of whether to attribute government activities to administrative activities within the meaning of section 1 (1) IFG, imperatively predetermined by terminology relating to the states and its bodies. Rather, it depends on the understanding as given to the terminology forming the basis of the Freedom of Information Act in view of its legislative context and history. Accordingly, the state functions named in the explanatory memorandum of the draft legislation relating to section 1 (1) second sentence IFG (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 15/4493 p. 8), to the extent that the specific tasks attributed to them are concerned, describe fields of activity, which are not covered by the Freedom of Information Act (BVerwG, judgments of 3 November 2011- 7 C 3.11 - BVerwGE 141, 122 para. 18 et seqq. and of 15 November 2012 - 7 C 1.12 (…)).
16 Accordingly, the Bundestag is not under an obligation to provide information, not only in its function as legislator and in exercising its right to decide on the budget, but comprehensively, in discharging other parliamentary matters as well (see BT-Drs. 15/4493 p. 8). In addition to its function as creator of laws and its representative function, this in particular includes its control function towards the Federal Government.
18 The appropriate discharging of tasks is built on a knowledge base geared to this task. Preparing information and generating knowledge, which, as such, are administrative tasks, is antecedent to the mandate-related performance of duties and responsibilities. Only by transforming this knowledge into actions guided by political considerations do the specific characteristics of parliamentary work of Members of Parliament become apparent. The knowledge base and the information gathered for it are indifferent to this political-parliamentary work of Members of Parliament. They do not obtain their specific parliamentary character but by being processed and assessed by the Member of Parliament, guided by his own interest. This becomes clear not least by the fact, that the documents and documentations drawn up by the Research Services upon request by a Member of Parliament must be politically neutral (…). The Research Services must not “in a way draw up ready to use documents for the political dispute” which would “exceed furnishing and preparing material” (cf. BVerfG, judgment of 13 June 1989 - 2 BvE 1/88 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 80, 188 <232>); Instead, the documents are to be drawn up in such way, “that the same request in content from a Member of Parliament of the “opposing” parliamentary group can be dealt with by producing a copy” (…).
19 c) This assessment of the relation to the mandate, when considering the entire regulatory concept of the Freedom of Information Act, is not in conflict with the status of a Member of Parliament as shaped by the guarantee of the free mandate within the meaning of article 38 (1) second sentence GG. For, at least the access to information contained in the documents drawn up by the Research Services as such is not suitable to adversely affect the parliamentary work of a Member of Parliament.
20 Pursuant to article 38 (1) second sentence GG, Members of Parliament are the representatives of the entire people, not bound by any orders and instructions and subject only to their conscience. The free mandate so granted, assures free forming of the will of the Member of Parliament, which is to be protected against undue influence from different directions - by interest groups, by parties and parliamentary groups and by the executive - (with regard to the latter see BVerfG, decision of 17 September 2013 - 2 BvE 6/08, 2 BvR 2436/10 - BVerfGE 134, 141 para. 92 et seq.). It can be left unanswered whether an unbiased formation of the will and decision of the Member of Parliament can be disturbed in a legally relevant way, if a Member of Parliament - in view of the capabilities of modern communication and information technology - considers himself exposed to a large public in relation to his fields of interest and the political positions and strategies to be developed thereof, if third parties simultaneously take notice of the assisting work of the Research Services. For, there is no need for concern about such interference, if - as is the case here - access is only given to the works as such, which are not connected to any reference to the requesting party and without the request form. In any case, this restriction ensues from section 5 (2) IFG, which ensures the protection of personal data linked to the mandate, by providing for a reason for preclusion without any balancing of interests (cf. BVerfG, judgment of 27 November 2014 - 7 C 20.12 (…)).
21 The fact, that the requesting Member of Parliament is known in the present case by reason of extraordinary circumstances and that access to information is obviously not requested because of the content of the documents drawn up alone, but just because of its - supposedly inappropriate - use by the former Member of Parliament, is insignificant. For, the guarantee of the free mandate does not result in the (former) Member of Parliament a posteriori being able to evade a public discussion on the use of the Research Services. Rather, such accountability is the manifestation of the mandate in the representative democracy, which is just characterised by political responsibility of the Member of Parliament towards the electorate and by the feedback between parliamentarians and electorate (BVerfG, decision of 17 September 2013 - 2 BvE 6/08, 2 BvR 2436/10 - BVerfGE 134, 141 para. 97).
22 Furthermore, due to the protection of the Member of Parliament’s personal data, the objection, that, in view of the possibility of receiving information at a later date, the “often longer communicative process” and the interaction between Members of Parliament and the instructed Research Services department in specifying the request for conducting research could be disturbed (…), is refuted as well. The object of the entitlement to claim access to information is exclusively the document drawn up on the basis of the request for conducting research as finally formulated (cf. section 2 no. 1 IFG).
23 Finally, there is no indication that the way and manner in which the free mandate is exercised may be interfered with by the access to information. It is not evident that the quality of the works rendered by the Research Services suffers if their publication cannot be ruled out (…; see also BVerwG, judgment of 3 November 2011 - 7 C 3.11 - BVerwGE 141, 122 para. 31). The requirements for assisting work in terms of content based on scientific standards, are determined by their primary purpose of use; insofar there are no concessions to be made.
24 Whether the special task of supporting the parliamentary activity of the Member of Parliament may demand not to grant access to information before a certain lapse of time in order to give the requesting Member of Parliament “time for reaction and processing” and, in the interest of a “protection from competition” to insofar allow him a timely limited information advantage in political competition (…), and which written or even unwritten grounds for refusal may come into consideration (…), does not need to be decided. For, such circumstances are not present here. Rather, the records at issue are no longer of importance for a parliamentary activity, in any event, after the requesting party’s status as Member of Parliament has ended.
25 d) This legal classification of mandate-related records of the Research Services is not in conflict with the statements made in the legislative process as invoked by the Higher Administrative Court.(…)
29 2. Finally, the judgment of the Higher Administrative Court does not prove to be correct in its result on other grounds. For, the defendant cannot base his refusal to grant access to information on section 6 first sentence IFG which is the sole reason for preclusion that could be relevant here. According to this provision, there is no entitlement to access to information where such access compromises the protection of intellectual property This includes the copyright in particular (see BT-Drs. 15/4493 p. 14), protecting the inherent rights of the author and the exploitation rights (section 11 of the Act on Copyright and Related Rights <Copyright Act – UrhG, Urheberrechtsgesetz> of 9 September 1965 <BGBl. I p. 1273> last amended by article 1 of the Law of 5 December 2014 <BGBl. I p. 1974>). However, this does not result in any limitations of the right to information for the (…) documents drawn up (…) and the translation, for which the defendant claims protection of copyright.(…)