1 The Coalition against Corruption Dr. Christoph Bruch FoI in Germany Six months after Implementation.

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The Coalition against Corruption

Dr. Christoph Bruch

FoI in Germany

Six months after Implementation

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Contents

1. TI Secretariat: Corruption Perception Index2. TI Germany3. FoI in Germany

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TI Germany: The Organisation

• Registered non-profit, tax exempt associationFounding year: 1993

• Current membership (6/2006)– 538 individual member– 32 corporative members

• Steering committee: honorary membership• Office

– Location: Berlin– Staff

• Managing director (full time, paid)• 2 members of staff (part time, paid)• 2 interns (full time)

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• Revenue 2004: ~ EUR 180.000

• 77% Membership fee + membership donations– 26 % Individual members– 51 % Corporate Members

• 15 % Public funding incl. Monetary fines

• 8 % Donations by non-members

TI Germany: How do we finance?

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TI Germany: Regional Activities

• Active regional groups in • Berlin• Hamburg• Lower-Saxony• North Rhine-Westphalia• Hesse• Bavaria

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TI Germany: Corporative Members (sample)

First city to joinTI-Germany ascorporate member.

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TI Germany: Corporate Members

Corporative members have to commit to certain standards to be accepted– Corruptive action has to ostracised– An internal anti corruption policy

has to put in force– Staff has to be educated in

measures to prevent corruption– The company is to raise corruption

as a topic within its trade association

– The Corporate Member Forum meets biannually

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TI Germany: Working Principles

• Transparency does not investigate cases of alleged corruption.

• It cannot do the job of crown prosecutors, journalists, auditors, and audit courts.

• We advocate conditions that are to help these professionals to do their job more effectively.

• Lobbying for administrative transparency is part of this campaign.

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TI Germany: Aims and Means

• Aims– Keep corruption on the public agenda– Sensitize and inform the public– Built structures that prevent or raise the costs for

corruption

• Means– Use of windows of opportunity– Public relations (Conferences, press releases)– Lobbying (access laws, black lists, transparent

contract awarding)– Documentation and research

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TI Germany advocates

• Build-up of corruption prevention measures (i.e. FoI laws) in public administration

• Setup special corruption crown prosecution services

• Setup of register of companies which have been found guilty of corruption

• Limitation party nepotism when filling vacancies in public administration and public companies

• Effective rules against bribing of political delegates

• Support of German Companies in their effort to fight corruption (Codes of Conduct, Corporate Governance)

TI Germany: Key Activities (samples)

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Contents

1. TI Secretariat: Corruption Perception Index2. TI Germany3. FoI in Germany

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States with FoI Act

Years in which the acts were passed:

1998 Brandenburg

1999 Berlin

2000 Schleswig-Holstein

2001 North Rhine-Westphalia

2005 Federal Government

2006 Hamburg

2006 Bremen

2006 Mecklenburg-Western

Pomerania

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States with FoI Act

Parties which passed the act in each case:

Brandenburg SPD, PDS

Berlin SPD, PDS, Greens

Schleswig-Holstein SPD, SSW, Greens

North Rhine-Westphalia SPD, CDU, FDP, Greens

Federal Government SPD, Greens, FDP abstained

Hamburg CDU

Bremen SPD, CDU

Mecklenburg-Western Pomerania SPD, PDS

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Constitution of Brandenburg

Of all German state constitutions only the one of Brandenburg encompasses a foi clause:

Part III: Rights of Political ParticipationArticle 21: Right of Political Participation (Paragraph 4)

According to the law, everybody has the right of access to

files and other official documents of agencies and

administrative institutions of the state an the local

authorities, as far as predominant public or private

interests do not prevail.

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• General Administrative Regulation on the Material and Organizational Protection of Classified Information (1949)

• State press laws (1950s)

• Fed. + state Data Protection Acts (starting 1970, informational self-determination)

• Administrative Procedure Act (1976, rule of law, fair trail)

• Stasi Files Act (1991, access to GDR secret police files)

• Environmental Information Act (1994, Aarhus Convention, 1998)

• Consumer Information Act (2006, only concerns food and animal feed)

• Information rights of the lelegislature

Other Major Laws governing Access

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Party Activity: FoI Bill per Year

1

1

2

1

3

1

1

1 1

1

1

1

3

2

1

1 1

1

1

1

3

1

2

0

1

2

3

4

5

6

7

1990 1994 1997 1999 2000 2001 2004 2005 2006

SSW

Republikaner

FDP

CSU

CDU

PDS

SPD

Grüne

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Party Activity: Number of Initiating FoI Bills

13

6,5

2

3,5

0

0

1

1

0 2 4 6 8 10 12 14

Greens

SPD

PDS

CDU

CSU

FDP

Republikaner

SSW

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Civil Society FoI Campaign 2004-2005

•Forming of a Coalition •Writing and presenting of a FoI bill•Cooperation with allies in the Bundestag•Public relations

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Main Civil Society FoI Activists

Journalists organisations

• German Journalists Association (trade union)

• German Journalists Union (trade union)

• Netzwerk Recherche (investigative journalists)

NGOs

• Transparency International Germany

• German Civil Liberties Union (Humanistische Union)

• More Democracy (direct democracy advocates)

• German Society for Freedom of Information

Semi-public organisations

• Federation of German Consumer Organisations

Scientology (considered subversive in Germany)

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Arguments of FoI Opponents

• Public administration does not have a secrecy problem

• The public is getting all relevant information

• Unhindered access will lead to misuse

• … and FoI will paralyse public administration

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Arguments of FoI Advocates

• Official secrecy as guiding principle does not reflect current understanding of democracy

• Germany disconnected from the rest of the industrialised world in respect to FoI

• FoI is a measure against political apathy

• Secrecy is a culture medium for mismanagement and corruption

• Information rights should not be a journalist privilege

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What we got

1. special public interests2. the official decision-

making process

3. personal data4. intellectual property5. business and trade

secrets

When the federal FoI act was passed, the press called it theFederal FoI Exemption Act.

Exemption Categories

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Exemptions for of Special Public Interests

There is no right of access to information …1. if the disclosure of the information could have a detrimental effect

ona) international relations;b) military or other sensitive security interests of the German Armed

Forces;c) internal or external security interests;d) control or monitoring duties of financial, anti-trust or regulatory

authorities;e) matters of external financial control;f) measures to prevent prohibited foreign trade;g) an ongoing legal proceeding,

the right of a person to a fair proceeding orthe carrying out of criminal, administrative or disciplinary investigations;

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More Exemptions for Special Public Interests

There is no right of access to information …

2. if the disclosure of the information could jeopardize public safety;

3. if and as long asa) the required confidentiality of international negotiations orb) agencies' consultations could be impaired;

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4. if the information is subject to– secrecy or– confidentiality regulated by law or by the General

Administrative Regulation on the Material and Organizational Protection of Classified Information,

– or is subject to a professional or special official secret;

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5. in regard to temporarily acquired information of another public office that shall not be part of the concerned agency's own operations;

6. if the disclosure of the information would be likely to impair the fiscal interests of – the federal government

or – the national insurances;

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7. in the case of information gathered or supplied on a confidential basis, to the extent that the third party's interest in confidential treatment continues at the time the application for access to the information is made; and

8. in regard to intelligence services and agencies and other public offices of the federal government that perform duties within the meaning of Sec. 10 (3) of the German Security Screening Act.

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Exemption for the Official Decision-Making Process

(1)The application for access to information shall be rejected for – drafts of decisions and – for work and resolutions made for their direct

preparation,– insofar and as long as the premature disclosure of the

information would prevent the success of the decision or pending official measures.

Results of evidence gathering and expert opinions or opinions by third parties do not usually serve the direct preparation of a decision pursuant to sentence 1.

(2) The applicant shall be informed when the respective proceeding has been concluded.

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Exemption for Personal Data (1)

• Generally balance of interest test for personal data

• Particularly sensitive personal data,i. e. documents concerning the third party's employment relationship,are only available if the third party has consented.

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Exemption for Personal Data (2)

• Name• Title• academic degree

of third parties are accessible• If they provided an opinion in a proceeding as an

expert or in a comparable capacity.

of staff are accessible• to the extent that they are the expression and result of

official activities and do not fulfil any exceptional circumstances.

• professional and functional designation• office address and • telecommunications numbers

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Exemption forIntellectual Property Business and Trade Secrets

• There is no right of access to information to the extent that it conflicts with protection of intellectual property.

• Access to business and trade secrets may only be granted to the extent that the party concerned consents.

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Further Shortcomings of the Fed. FoI Act

• It does not set a minimum access standard

• Virtually no publication duties

• Exemption for Information relevant for fight against corruption– financial, anti-trust or regulatory authorities;– external financial control;– Some fiscal action

• Absolute protection for business and trade secrets

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Implementation Deficits

• Not enough staff for Information Commissioner

• No FoI education for staff

• FoI applications are frequently addressed to staff that usually has no customer contact and ne experience in writing official notifications

• Almost no advertisement of the new law

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Number of Fed. FoI Act Applications (1-6/2006)

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Main Conflict Points

• About 120 were referred to the Information Commissioner

• Approximate disperse of the Commissioner’s consultancy according to the origin of applications

– 20 % Federal Ministry of Economics and Technologies

– 10 % Federal Ministry of Health

– 10 % Federal Ministry of Transport, Building and Urban Development

• Main contentious issues are business and trade secrets

• Slowly cases ob non-reaction raise in number

• Conflicts over fees are of less importance

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Use of FoI Act in Schleswig-Holstein (first 2 years)

• About 1150 applications based in FoI act during the first 25 months

• 950 more were counted as FoI application although the act was not mentioned by the applicant

• No excessive workload was created

• The great majority of application was granted fully

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Use of FoI Act in North Rhine-Westphalia (1. year)

Applications Denies ObjectionsAction to compel

Times fees were asked

State Government 58 25 2 1 1

Regional Authorities 353 169 8 2 4

Local Authorities 576 201 23 9 58

Police 39 14 3 2 0

Judiciary 44 7 0 1 1

Miscellaneous public entities 82 25 6 3 1

Totals 1152 441 42 18 65

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Use of FoI Act in Berlin (1. year)

• 168 applications– 50% full disclosure– 18 % partly denied– 28 % fully denied

• Main reasons for denial– Data protection– Decision-making privacy

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Examples for the Use of FoI Laws: Federal Government

• Contracts between federal government and Siemens, Deutsche Telekom and other to built an electronic system for toll collection

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Examples for the Use of FoI Laws: Berlin• Access to appointment calendar of governing mayor

– Undecided– Justification for denial: Calendar is no file

• Access to calculation of water price by semi-public water supply Company– undecided

• Access to information concerning a construction project– Granted– Construction Company applies for information in

context of law suit for additional payments– According to Agency prime example for misuse

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Examples for the Use of FoI Laws: North Rhine-Westphalia

• Who sponsored the mayors official necklace?– Granted

• Access to Information concerning prolonged earthworks– Granted– Information was use to sue local authorities

for damages

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Examples for the Use of FoI Laws: Several States

• Schleswig-Holstein– Access to information concerning a construction project– Granted after intervention by information commissioner– Justification for denial

• Citizen’s initiative is not a legal person• Speaker of initiative is said to not apply in his own

right

• several states– Access to names of companies which Under filled food

packages– different court decisions in individual states– Agency denied access in every case– Which company cheated its customers was considered a

trade secret

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Future of FoI in Germany

• All states without FoI law will pass one in the near future.

• All will be weak laws as the federal law sets a low standard and even this standard will mostly not be met.

• We have seen the first assaults on FoI laws this year in Berlin and Schleswig-Holstein. This may start a new trend.

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Future of FoI in Germany

• Germany’s federal government does not favour the idea to pass a transparency convention at the Council of Europe.

• Berlin just expanded the information rights of its parliament. Delegates of Berlin to private companies fully or partly owned by he city can now be ordered to report to parliament committees.

1 The Coalition against Corruption Dr. Christoph Bruch FoI in Germany Six months after Implementation.

Documents

corruption ti germany

perception of corruption

corruption contents

corruption states

corruption revenue

corruption perception

corruption codes of

cases of alleged corruption