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

2 The Coalition against Corruption Contents 1.TI Secretariat: Corruption Perception Index 2.TI Germany 3.FoI in Germany

3 The Coalition against Corruption Measures the perception of corruption, not corruption itself 18 surveys and studies of 12 institutions (i.e. Freedom House, World Economic Forum) have been used to calculate the ranking Countries are only assessed if at least 3 different sources are available Of 158 countries Germany is ranked 16 th, United Kingdom 11 th Corruption Perceptions Index: 2005

4 The Coalition against Corruption Corruption Perceptions Index: Map

5 The Coalition against Corruption Contents 1.TI Secretariat: Corruption Perception Index 2.TI Germany 3.FoI in Germany

6 The Coalition against Corruption TI Germany: The Organisation Registered non-profit, tax exempt association Founding 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)

7 The Coalition against Corruption Revenue 2004: ~ EUR % 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?

8 The Coalition against Corruption TI Germany: Regional Activities Active regional groups in Berlin Hamburg Lower-Saxony North Rhine-Westphalia Hesse Bavaria

9 The Coalition against Corruption TI Germany: Corporative Members (sample) First city to join TI-Germany as corporate member.

10 The Coalition against Corruption 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

11 The Coalition against Corruption 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.

12 The Coalition against Corruption 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

13 The Coalition against Corruption 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)

14 The Coalition against Corruption Contents 1.TI Secretariat: Corruption Perception Index 2.TI Germany 3.FoI in Germany

15 The Coalition against Corruption 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

16 The Coalition against Corruption States with FoI Act Parties which passed the act in each case: BrandenburgSPD, PDS BerlinSPD, PDS, Greens Schleswig-HolsteinSPD, SSW, Greens North Rhine-WestphaliaSPD, CDU, FDP, Greens Federal GovernmentSPD, Greens, FDP abstained HamburgCDU BremenSPD, CDU Mecklenburg-Western PomeraniaSPD, PDS

17 The Coalition against Corruption Constitution of Brandenburg Of all German state constitutions only the one of Brandenburg encompasses a foi clause: Part III: Rights of Political Participation Article 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.

18 The Coalition against Corruption 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

19 The Coalition against Corruption Party Activity: FoI Bill per Year

20 The Coalition against Corruption Party Activity: Number of Initiating FoI Bills

21 The Coalition against Corruption Civil Society FoI Campaign Forming of a Coalition Writing and presenting of a FoI bill Cooperation with allies in the Bundestag Public relations

22 The Coalition against Corruption 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)

23 The Coalition against Corruption 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

24 The Coalition against Corruption 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

25 The Coalition against Corruption What we got 1.special public interests 2.the official decision-making process 3. personal data 4. intellectual property 5. business and trade secrets When the federal FoI act was passed, the press called it the Federal FoI Exemption Act. Exemption Categories

26 The Coalition against Corruption 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 on a)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 or the carrying out of criminal, administrative or disciplinary investigations;

27 The Coalition against Corruption 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 as a) the required confidentiality of international negotiations or b) agencies' consultations could be impaired;

28 The Coalition against Corruption More Exemptions for Special Public Interests There is no right of access to information … 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;

29 The Coalition against Corruption More Exemptions for Special Public Interests There is no right of access to information … 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;

30 The Coalition against Corruption More Exemptions for Special Public Interests There is no right of access to information … 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.

31 The Coalition against Corruption 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.

32 The Coalition against Corruption 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.

33 The Coalition against Corruption 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

34 The Coalition against Corruption Exemption for Intellectual 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.

35 The Coalition against Corruption 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

36 The Coalition against Corruption 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

37 The Coalition against Corruption Number of Fed. FoI Act Applications (1-6/2006)

38 The Coalition against Corruption Main Conflict Points About 120 were referred to the Information Commissioner Approximate disperse of the Commissioners 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

39 The Coalition against Corruption 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

40 The Coalition against Corruption Use of FoI Act in Schleswig-Holstein (first 2 years)

41 The Coalition against Corruption Use of FoI Act in Schleswig-Holstein (first 2 years)

42 The Coalition against Corruption Use of FoI Act in Schleswig-Holstein (first 2 years)

43 The Coalition against Corruption Use of FoI Act in North Rhine-Westphalia (1. year) ApplicationsDeniesObjections Action to compel Times fees were asked State Government Regional Authorities Local Authorities Police Judiciary Miscellaneous public entities Totals

44 The Coalition against Corruption 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

45 The Coalition against Corruption 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

46 The Coalition against Corruption 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

47 The Coalition against Corruption 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

48 The Coalition against Corruption 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 Citizens 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

49 The Coalition against Corruption 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.

50 The Coalition against Corruption Future of FoI in Germany Germanys 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.