Summary:

I.

The complainant was a journalist. In November 2010, he applied for access to information on the nazi-past of official employees and unofficial collaborators of the German Foreign Intelligence Service (Bundesnachrichtendienst). In December 2010, the German Foreign Intelligence Service informed him that it would take longer to process the request. The complainant then filed an action based on administrative inaction. He asserted a right to disclosure under the Federal Archives Act, the Bavarian Press Act, the Berlin Press Act and under Article 5 of the Basic Law. The complainant’s action was dismissed by the Federal Administrative Court as court of last resort. That decision was based on the following considerations: Due to the delimitation of legislative competences under the Basic Law, the complainant was not able to base his right to disclosure vis-à-vis a federal authority on federal state press acts. According to that Court, the specific relief sought by the complainant also did not meet the requirements of the right to information for the press derived directly from the Constitution, i.e. Second Sentence of Article 5.1 of the Basic Law, which, by law, could have constituted a legal basis for the action.

The complainant challenged that decision via constitutional complaint asserting a violation of his fundamental rights under the First and Second Sentence of Article 5.1 of the Basic Law.

II.

The Federal Constitutional Court decided not to admit the constitutional complaint for decision, because there was no violation of fundamental rights.

The decision is based on the following considerations:
The Court did not have to decide whether federal states, based on their competences to regulate press law, may also create obligations to disclose information that is incumbent upon federal authorities or whether such regulation is reserved to the federal legislator. The Court could also leave undecided the issue whether a right to information can be derived directly from the Constitution, relying on the Second Sentence of Article 5.1 of the Basic Law, and how far such a right might reach. This was due to the fact that there is no indication of a violation of the freedom of press, as long as members of the press are accorded a right to disclosure that does not fall behind the content of rights to disclosure provided under the federal state press laws. If the regular courts thereby succeed in countering the effects the regulation of rights to disclosure vis-à-vis federal authorities have that are not valid according to the Federal Administrative Court, there is no violation of fundamental rights and admission of the constitutional complaint for decision by the Federal Constitutional Court is not warranted.

This was the case here. The rights to information under the federal state press laws only provide access to such information that the relevant public entities possess (accord ECHR, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, 14.04. 2009, § 36). The legal bases for disclosure of information at federal state level, against which the complainant did not raise any constitutional objections, do not encompass a right to have information and other material generated and procured. Within its scope of application, the freedom of information under the Freedom of Information Act only provides access to information actually available.
In contrast, according to the factual findings of the regular courts that are not objectionable under constitutional law, the complainant requested information to be procured that the Federal Foreign Intelligence Office did not possess itself. The main part of the information requested was to be generated by an Independent Commission of Historians, which had been specifically installed to investigate the events at issue. If the courts do not grant such an action directed at procuring information, they do not obviously fail to recognise the significance of fundamental rights in a given case.