Austrian Government Bill: Freedom of Information Act

Nov 24, 2023 Benn-Ibler Rechtsanwälte

The obligation to maintain official secrecy has been explicitly enshrined in the Austrian Federal Constitution. A new government bill now aims to abolish official secrecy and increase government transparency. To this end, the Austrian Federal Constitution Act (Bundes-Verfassungsgesetz, hereinafter B-VG) is to be amended and the new Freedom of Information Act (Informationsfreiheitsgesetz, hereinafter IFG) introduced.

The provisions on official secrecy in Section 20 para. 3 of the 5 B-VG are to be abolished. The aim is to establish a constitutionally guaranteed right of access to certain information. This is to be achieved by means of an obligation to actively make information available. Exceptions to the obligation to provide information will only be possible if this is necessary to protect specific interests.

The new Section 22a will be introduced into the Austrian Federal Constitution.

‘Information of general interest’ shall be published by institutions obliged to provide information, in an accessible manner for all. All federal legislative organs, public administration, ordinary courts, administrative courts as well as the Constitutional Court are obliged to provide information.

Municipalities with a population of less than 5,000 are exempted from the obligation to proactively provide information, as smaller municipalities may be overburdened by this, resource-wise.

The new Freedom of Information Act, IFG, will also be introduced.

The term information is defined in Section 2 of the IFG. According to this definition, information refers to records by bodies which are obliged to provide information and which serve official or business purposes. This means that personal records and documents are not considered to constitute information. Information is considered to be of general interest if it concerns a large group of recipients.

Publication is the responsibility of those bodies that are the originators or providers of information. In accordance with Section 5 of the IFG, publication must take place via a central, generally accessible register of information. Access to information shall be free of charge.

In assessing the need for confidentiality, the proportionality test plays an important role. Information must be published if the public interest prevails. Information exempt from publication is listed in Section 6 of the Freedom of Information Act. This includes, for example, information in the interest of national security. It also includes personal data or information that protects the confidentiality of banking or commercial transactions.

BlgNR 2238 – XXVII. GP (6 October 2023)