Summary:

I.

The applicant is a journalist and historian. She has been conducting a research into claims that in the 1960s, the German Federal Government under former Federal Chancellor Konrad Adenauer had made covert payments to the State of Israel, funding the Israeli nuclear weapons programme. During the course of her research, the applicant arrived at the conclusion that certain official documents exist, drawn up by the Federal Chancellery for the Federal Government. These documents, some of which were classified, had been transferred to the archives of two private foundations. The applicant requested access to these documents, but was refused by the foundations. Thereupon, the applicant requested the Federal Archives to provide access to these official documents. The Federal Archives refused on the grounds that they could only provide access to documents in their possession and the documents in question were not held at the Archives. The applicant then pursued the matter before the administrative courts, but her claims were rejected and the right to appeal was denied. In her constitutional complaint challenging the decisions of the administrative courts, the applicant claims a violation of the freedom of information on the basis of the first alternative of the first sentence of Article 5.1 of the Basic Law.  

II.

The Court held the constitutional complaint to be inadmissible; at the same time, it recognised that many of the legal issues raised by the case with regard to the applicable statutory law on access to information have not yet been resolved by the regular courts.

The decision is based on the following considerations:

The Court held the complaint to be inadmissible because it does not fulfil the requirement of subsidiarity (first sentence of § 90.2 of the Federal Constitutional Court Act). According to the principle of subsidiarity, a constitutional complaint is generally only admissible if – in addition to the legal remedies before the regular courts – all other available possibilities to correct or prevent the challenged violation of the Constitution have been used. Since the Federal Archives never were in possession of the requested documents, the applicant should have applied to the Federal Chancellery, which originally drafted the documents, in order to exhaust all other available options.

Pursuant to the second sentence §90.2 of the Federal Constitutional Court Act, the Court may decide constitutional complaints even if remedies or other available options have not been exhausted in cases where questions of general relevance are raised. However, in the case at hand, important legal issues relating to the Federal Freedom of Information Act (hereinafter, the “Act”) have not been resolved by the regular courts, thus barring a constitutional complaint.

One such issue is the scope of the right to access to information. The freedom of information (second alternative of the first sentence of Article 5.1 of the Basic Law) provides a right to access to information, directed against the state, at least in cases where a source of information for which the state is responsible is designated as publicly accessible by legal provisions. In principle, the first sentence of §1.1 of the Act generates a right to access official information from generally accessible sources; however, exceptions to the rule are recognised. The Act does not expressly state whether access must be provided to files that are not held by a public authority but rather by a private foundation. While it does result from the Act that there is no right to access to files that were never held by public authorities, is it unclear whether this also applies to cases involving the potential reacquisition of files that were once held by a public authority but then changed into private hands. This is a matter which must be clarified in the regular courts.

The state’s potential discretion for deciding whether to demand the handing over of documents held by private parties in effect gives the state the power to determine who shall be granted access to sources and who shall be denied. These decisions by the state are subject to the equality clauses under Article 3 of the Basic Law. This must be taken into account when interpreting § 1.1 of the Act. The interpretation of the rules on access to information must neither result in the unequal treatment of the various parties seeking access, nor in inequality between those parties and the private party holding the information.

In case the regular courts were to find § 1.1 of the Act to provide the applicant with a right to access the information requested, this access would be protected under the freedom to information. The provisions in the Act governing this access would have to be interpreted in light of this constitutionally guaranteed freedom. In doing so, the significance of the general accessibility of sources for the freedom of the individual and for communication in a democratic and constitutional state must be taken into account and reasonably balanced with opposing interests.