BVwG - W287 2248365-1/12E
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| BVwG - W287 2248365-1/12E | |
|---|---|
 | |
| Court: | BVwG (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | Article 6 GDPR Article 10 ECHR §1 DSG Article 20(4) B-VG |
| Decided: | 19.09.2024 |
| Published: | 30.10.2024 |
| Parties: | |
| National Case Number/Name: | W287 2248365-1/12E |
| European Case Law Identifier: | ECLI:AT:BVWG:2024: W287.2248365.1 .01 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | RIS (in German) |
| Initial Contributor: | Ao |
A court concluded that the interest of a journalist requesting information on the outcome of an interrogation procedure of two police officers did outweigh the data protection interests of the officers.
English Summary
Facts
A journalist submitted a query on the outcome of an interrogation of two police officers to the state police department. The state police department responded that due to paragraph 1(1) of the Austrian National Data Protection Act (Datenschutzgesetz – DSG) the provision of information was not possible. In its reasoning the state police department highlighted that the police officers in question were identifiable through publicly available video footage. It further stated that the journalist did not show an outweighing interest which would warrant the provision of information.
The journalist responded to the state police department explaining that he is not interested in personal data on the police officers but merely requests to know the outcome of the interrogation which he was informed about. He further submitted that he does not intend to publish the provided information.
The state police department explained that providing the information would enable drawing conclusions on whether the officers were subject to disciplinary measures which in turn affects their standing as employees and therefore their concerns their right to privacy.
The journalist filed a complaint on the 6 October 2021 alleging that the state police department had not objectively balanced the interests of the police officers with the journalists request for information. The complaint was forwarded to the Federal Austrian Administrative Court by the state police department (Bundesverwaltungsgericht – BVwG).
Holding
The court deliberated whether paragraph 1 of the Austrian National Data Protection Act (DSG) stood in opposition to delivery of the requested information.
The court accepted that although the officers are only identifiable to a small circle, the requested information would infringe their right to privacy and that this is only justifiable on one of the basis of Article 6 GDPR or paragraph 1(2) DSG. With reference to Recital 4, the court reiterated that the right to privacy of data is not absolute and that it must be balanced with other fundamental rights, such as the right to freedom of information.
In carrying out this balancing test, the court highlighted that the journalist carries out a supervisory function in the public interest as a "social watchdog". The court elaborated that the journalist requested the information in his capacity to inform social discourse on the events while being bound to data protection principles in his research function. As the officers are public officials of the executive they must be subject to a higher level of scrutiny as they have taken on a role of responsibility for society therefore legitimizing an increased public interest in their actions.
Based on the fact that the state police department could not rebut the considerable public interest in the requested information, the court concluded that the interest of the journalist outweighed the data protection interests of the officers.
Comment
Apart from the data protection concerns the court considered the obligation of public bodies to provide information on their actions as long as there is no conflicting legal obligation of confidentiality as seen in paragraph 20(4) of the Austrian Constitutional Law (Bundesverfassungsgesetz - B-VG). This provision was a crucial part of the final reasoning in the judgment.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
Decision date
September 19, 2024
Standard
Information Obligation Act §1
Information Obligation Act §4
AVG §74 Paragraph 1
AVG §74 Paragraph 2
B-VG Art133 Paragraph 4
B-VG Art20 Paragraph 3
B-VG Art20 Paragraph 4
DSG §1
DSGVO Art4 Z1
DSGVO Art6
VwGVG §17
§ 1 today § 1 valid from January 1, 1988 to August 31, 2025 repealed by BGBl. I No. 5/2024
§ 4 today § 4 valid from January 1, 1999 to August 31, 2025 repealed by BGBl. I No. 5/2024 § 4 valid from January 1, 1988 to December 31, 1998
AVG § 74 today AVG § 74 valid from 01.01.2008, last amended by BGBl. I No. 5/2008 AVG § 74 valid from 01.02.1991 to 31.12.2007
AVG § 74 today AVG § 74 valid from 01.01.2008, last amended by BGBl. I No. 5/2008 AVG § 74 valid from 01.02.1991 to 31.12.2007
B-VG Art. 133 today B-VG Art. 133 valid from 01.01.2019 to 24.05.2018, last amended by BGBl. I No. 138/2017 B-VG Art. 133 valid from 01.01.2019, last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from 25.05.2018 to 31.12.2018 last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from 01.08.2014 to 24.05.2018 last amended by BGBl. I No. 164/2013 B-VG Art. 133 valid from 01.01.2014 to 31.07.2014 last amended by BGBl. I No. 51/2012 B-VG Art. 133 valid from 01.01.2004 to 31.12.2013 last amended by BGBl. I No. 100/2003 B-VG Art. 133 valid from 01.01.1975 to December 31, 2003, last amended by BGBl. No. 444/1974 B-VG Art. 133 valid from December 25, 1946 to December 31, 1974, last amended by BGBl. No. 211/1946 B-VG Art. 133 valid from December 19, 1945 to December 24, 1946, last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from January 3, 1930 to June 30, 1934
B-VG Art. 20 today B-VG Art. 20 valid from September 1, 2025, last amended by BGBl. I No. 5/2024 B-VG Art. 20 valid from January 1, 2023 to August 31, 2025, last amended by BGBl. I No. 141/2022 B-VG Art. 20 valid from January 1, 2014 to December 31, 2022, last amended by BGBl. I No. 51/2012 B-VG Art. 20 valid from October 1, 2010 to December 31, 2013, last amended by BGBl. I No. 50/2010 B-VG Art. 20 valid from January 1, 2008 to September 30, 2010, last amended by BGBl. I No. 2/2008 B-VG Art. 20 valid from January 1, 1988 to December 31, 2007, last amended by BGBl. No. 285/1987 B-VG Art. 20 valid from July 1, 1976 to December 31, 1987, last amended by BGBl. No. 302/1975 B-VG Art. 20 valid from December 19, 1945 to June 30, 1976, last amended by StGBl. No. 4/1945 B-VG Art. 20 valid from January 3, 1930 to June 30, 1934
B-VG Art. 20 today B-VG Art. 20 valid from September 1, 2025, last amended by BGBl. I No. 5/2024 B-VG Art. 20 valid from January 1, 2023 to August 31, 2025, last amended by BGBl. I No. 141/2022 B-VG Art. 20 valid from January 1, 2014 to December 31, 2022, last amended by BGBl. I No. 51/2012 B-VG Art. 20 valid from October 1, 2010 to December 31, 2013, last amended by BGBl. I No. 50/2010 B-VG Art. 20 valid from January 1, 2008 to September 30, 2010, last amended by BGBl. I No. 2/2008 B-VG Art. 20 valid from January 1, 1988 to December 31, 2007, last amended by BGBl. No. 285/1987 B-VG Art. 20 valid from July 1, 1976 to December 31, 1987, last amended by BGBl. No. 302/1975 B-VG Art. 20 valid from December 19, 1945 to June 30, 1976, last amended by StGBl. No. 4/1945 B-VG Art. 20 valid from January 3, 1930 to June 30, 1934
DSG Art. 1 § 1 today DSG Art. 1 § 1 valid from January 1, 2014 last amended by BGBl. I No. 51/2012 DSG Art. 1 § 1 valid from January 1, 2000 to December 31, 2013
VwGVG § 17 today VwGVG § 17 valid from January 1, 2014
Ruling
W287 2248365-1/12E
IN THE NAME OF THE REPUBLIC!
The Federal Administrative Court recognizes through the judge MMag. Dr. Julia KUSZNIER as a single judge on the appeal by XXXX, represented by RA XXXX, XXXX, against the decision of the State Police Directorate XXXX of XXXX, No. XXXX, concerning the provision of information in accordance with the Information Obligation Act after conducting an oral hearing, rightly rules:The Federal Administrative Court, through Judge MMag. Dr. Julia KUSZNIER as a single judge on the appeal by roman 40, represented by RA roman 40, roman 40, against the decision of the State Police Directorate roman 40 of roman 40, No. roman 40, concerning the provision of information in accordance with the Information Obligation Act after conducting an oral hearing, rightly rules:
A)
I. roman one.
The complaint is upheld, the contested decision is overturned and it is determined that the authority concerned wrongfully refused to provide the requested information, namely regarding the request for information:
"What is the outcome of the internal review of the conduct of the two police officers who did not intervene at the Karl Lueger memorial on October 5, 2020 when members of the Identitarian Movement hammered off the concrete lettering that had previously been attached to the memorial?"
II.Roman II.
The applications for flat-rate reimbursement of expenses are rejected.
B)
The appeal is not admissible according to Article 133, Paragraph 4, B-VG.The appeal is not admissible according to Article 133, Paragraph 4, B-VG.
Text
Reasoning:
I. Background and procedure:Roman one. Background and course of proceedings:
1. On October 5, 2020, there was a police operation in connection with the Karl Lueger memorial in Vienna, which the complainant reported on as a journalist for the daily newspaper “ XXXX ” ( XXXX ). In the course of his research, the complainant communicated with the press office of the authority concerned and requested information on whether investigations would be carried out against those officers who had not intervened when members of the Identitarian Movement had hammered at the memorial. The authority concerned then informed him that two officers would be questioned separately about the incidents. The question was to what extent it was reasonable for two inspectors to assess a complex constitutional and administrative legal situation within two minutes. 1. On October 5, 2020, there was a police operation in connection with the Karl Lueger memorial in Vienna, which the complainant reported on as a journalist for the daily newspaper “ roman 40 ” ( roman 40 ). In the course of the research, the complainant communicated with the press office of the authority concerned and requested information as to whether investigations would be carried out against those officers who had not intervened when members of the Identitarian Movement had hammered at the monument. The authority concerned then informed him that two officers would be questioned separately about the incidents. The question was to what extent it was reasonable for two inspectors to assess a complex constitutional and administrative legal situation within two minutes.
2. In May 2021, the complainant requested information on the outcome of the announced review of the conduct of the two police officers. This was refused, citing data protection concerns. In a letter dated May 20, 2021, the complainant contacted the XXXX State Police Directorate and requested the following information with the subject "Information in accordance with the Information Obligation Act on internal investigations into the Lueger Monument":2. In May 2021, the complainant requested information on the outcome of the announced review of the conduct of the two police officers. This was refused, citing data protection concerns. In a letter dated May 20, 2021, the complainant turned to the State Police Directorate Roman 40 and requested the following information with the subject "Information pursuant to the Information Obligation Act on internal investigations into the Lueger Memorial":
"What is the outcome of the internal review of the conduct of the two police officers who did not intervene at the Karl Lueger Memorial on October 5, 2020 when members of the Identitarian Movement hammered off the concrete lettering that had previously been attached to the memorial?"
3. In a letter dated June 21, 2021, the State Police Directorate stated that Section 1 Paragraph 1 of the Data Protection Act 2000 (sic!) precluded the provision of information, especially since the officers in question were clearly recognizable and thus identifiable on public video material. There was no overriding legitimate interest on the part of the person requesting the information, which is why the requested information could not be provided.3. In a letter dated June 21, 2021, the State Police Directorate stated that paragraph one, paragraph one, DSG 2000 (sic!) prevented the provision of information, especially since the officers in question were clearly recognizable and thus identifiable on public video material. There was no overriding legitimate interest on the part of the person requesting the information, which is why the requested information could not be provided.
4. On July 2, 2021, the complainant stated that he was not interested in the officers' personal data and would not publish it. He was only interested in the outcome of the internal review, although he had already been informed of the fact of the review without any personal data being mentioned. He also requested that his request for information be dealt with by decision if it was not complied with.
5. With the now contested decision of XXXX to GZ. XXXX, the authority concerned stated that the complainant was not entitled to information and that no information was provided by the authority concerned. In its justification, the authority concerned essentially stated that the information requested was personal information which would ultimately provide information on whether or not disciplinary proceedings were initiated against the civil servants and they were thus accused of violating an official duty. The use of this data affected the persons concerned in their capacity as employees and thus also in their private life. The persons named had a legitimate interest in keeping the information requested confidential, which outweighed the personal interest of the complainant. The information requested was subject to the right to confidentiality under Section 1 Paragraph 1 of the Data Protection Act 2000 (sic!). The complainant did not have an overriding legitimate interest. The fact that the complainant had made the request for information as a "public watchdog" did not change this.5. In the now contested decision of Roman 40 in GZ. Roman 40, the authority concerned found that the complainant was not entitled to information and that no information would be provided by the authority concerned. In its justification, the authority concerned essentially stated that the information requested was personal information which would ultimately provide information as to whether or not disciplinary proceedings had been initiated against the civil servants and they were thus accused of violating an official duty. The use of this data affected those affected in their capacity as employees and therefore also in their private sphere. The persons named had a legitimate interest in keeping the information requested confidential, which was worthy of protection and was legitimated under fundamental rights, and which outweighed the personal interest of the complainant. The information requested was subject to the right to confidentiality under paragraph one, subsection one, DSG 2000 (sic!). The complainant did not have an overriding legitimate interest. The fact that the complainant made the request for information as a “public watchdog” does not change this.6. The complainant lodged a timely appeal against this decision on October 6, 2021. In it, he essentially stated that the authority concerned had failed to recognize how the Act on the Obligation to Provide Information should be applied in the light of Article 10 of the ECHR. The authority had not carried out an objective balancing of the interests of the civil servants' privacy and the complainant's right to information as a journalist, thereby restricting the constitutionally guaranteed right to freedom of the media.6. The complainant lodged a timely appeal against this decision on October 6, 2021. In it, he essentially stated that the authority concerned had failed to recognize how the Act on the Obligation to Provide Information should be applied in the light of Article 10 of the ECHR. The authority had not carried out an objective balancing of the interests of the civil servants' privacy and the complainant's right to information as a journalist, thereby restricting the constitutionally guaranteed right to freedom of the media. 7. The authority concerned submitted the complaint together with the relevant administrative act to the Federal Administrative Court by letter dated December 1st, 2021 (OZ 5).
8. By order of the Business Allocation Committee dated January 25th, 2022, the legal case in question was taken from Court Division W253 and assigned to Court Division W287.
9. On July 20th, 2023, the authority concerned submitted a video recording of the police operation in question, which is still available on Twitter.
10. On September 25th, 2023, a public oral hearing took place before the Federal Administrative Court.
II. The Federal Administrative Court considered: Roman II. The Federal Administrative Court considered:
1. Findings:
1.1. In a letter dated May 20, 2021, the complainant, as a journalist for XXXX, submitted the following request for information to the authority concerned (error in the original, formatting not 1:1):1.1. In a letter dated May 20, 2021, the complainant, as a journalist for roman 40, submitted the following request for information to the authority concerned (error in the original, formatting not 1:1):
"What is the outcome of the internal review of the conduct of the two police officers who did not intervene at the Karl Lueger memorial on October 5, 2020 when members of the Identitarian Movement hammered off the concrete lettering that had previously been attached to the memorial?
Here I refer to your email information of October 7, 2020, in which you stated that the two officers would be questioned separately, and to your email information of May 18, 2021, in which you stated that there had been an "in-depth internal review" of the matter."
1.2. On June 21, 2021, the complainant was informed that Section 1, Paragraph 1 of the Data Protection Act 2000 (sic!) precluded the provision of information, especially since the officers were clearly recognizable and thus identifiable on public video material. There was no overriding legitimate interest on the part of the person requesting the information, which is why the requested information could not be provided.1.2. On June 21, 2021, the complainant was informed that paragraph one, paragraph one, DSG 2000 (sic!) prevented the provision of information, especially since the officials were clearly recognizable and thus identifiable on public video material. There was no overriding legitimate interest on the part of the person requesting the information, which is why the requested information could not be provided.
In a letter dated July 2, 2021, the complainant requested the issuance of a notice in accordance with Section 4 of the Information Obligation Act.In a letter dated July 2, 2021, the complainant requested the issuance of a notice in accordance with Paragraph 4 of the Information Obligation Act.
In a notice dated XXXX to GZ. XXXX, the authority concerned determined that the complainant was not entitled to information and that no information would be provided by the authority concerned. In a notice dated Roman 40 to GZ. Roman 40, the authority concerned stated that the complainant was not entitled to information and that no information was provided by the authority concerned.
1.3. The police operation at issue in the proceedings, to which the complainant's request for information refers, was documented in a video. This video is available on Twitter (https://t.co/YtHmNbCJPu), with the police officers shown from behind and from the side between minutes 01:04 and 01:53 without pixelation.
1.4. The complainant is a journalist and head of department at XXXX in the area of print and online products. He made the request for information in question in order to publish an article as part of the public debate about the Karl Lueger memorial or to continue reporting that had already begun. The complainant had already raised the issue several times in public reporting. Specifically, he is interested in a debate and public discourse on the topic of which actions are permissible in relation to the Karl Lueger memorial and in particular the question of which behavior justifies intervention by the authorities and which does not, i.e. whether an appropriate official action has taken place in light of the tension between freedom of demonstration and damage to property or not. The video published on Twitter was not made available by the complainant as part of his previous reporting. 1.4. The complainant is a journalist and head of department at roman 40 in the area of print and online products. He made the request for information in question in order to publish an article as part of the public debate on the Karl Lueger memorial or to continue reporting that had already begun. The complainant had already raised the issue several times in public reporting. Specifically, he is interested in a debate and a public discourse on the topic of which actions are permissible in relation to the Karl Lueger memorial and in particular the question of which behavior justifies intervention by the authorities and which does not, i.e. whether an appropriate official action has taken place in light of the tension between freedom of demonstration and damage to property or not. The video published on Twitter was not made available by the complainant as part of his previous reporting.
1.5. The general public has a great interest in the control of official actions by executive bodies in public, which is why (critical) reporting on official actions by the executive that have a public impact is also regularly carried out.
1.6. The determination of the requested data does not represent such an effort for the authority concerned that it would impair it in carrying out its other duties.
2. Assessment of evidence:
The findings on the relevant facts arise from the administrative act as well as the court file and the statements in the oral hearing and are not disputed.
The findings regarding the video of the police operation in question are derived from the video submitted by the authority concerned (OZ 8), which was viewed together in the oral hearing, and are also not disputed.
The fact that the complainant works as a journalist is known to the court and is derived from his own statements in the proceedings and in the oral hearing (VP p. 5). It is also known to the court that the Karl Lueger memorial has been and is being controversially discussed in public in media reports and that actions surrounding the memorial are always the cause of debates in which the complainant participates as a journalist. The established purpose of the reporting, for which the complainant required the information at issue in the proceedings, as well as the finding that the complainant had not used the video submitted by the authority in question as part of his reporting, arise from his own credible statements during the oral hearing, which were not disputed by the authority in question (VP p. 5/6), as well as from the complainant's previous reporting on the police operation in question ( XXXX ). The fact that the complainant works as a journalist is known to the court and arises from his own statements during the proceedings and at the oral hearing (VP Session 5). The court is also aware that the Karl Lueger Memorial has been and continues to be controversially discussed in public in media reports and that actions surrounding the memorial are repeatedly the cause of debates in which the complainant participates as a journalist. The established purpose of the reporting, for which the complainant needed the information in question, as well as the finding that the complainant had not used the video submitted by the authority in question in his reporting, are evident from his own credible statements during the oral hearing, which were not disputed by the authority in question (VP Session 5/6) and from the complainant's previous reporting on the police operation in question ( Roman 40 ).
The fact that actions surrounding the Karl Lueger memorial play a role in public discussion and that debates regularly appear in public reporting is, on the one hand, known to the court and, on the other hand, results from the undisputed statements of the complainant in the proceedings and from an internet search carried out ex officio (https://kurier.at/chronik/wien/strassenschilder-am-wiener-dr-karl-lueger-platz-ueberklebt/402760657; https://www.derstandard.de/story/3000000205407/karl-lueger-aktivisten-klebten-etiketten-an-strassenschilder-und-denkmal; https://www.derstandard.at/story/3000000172519/kunst-kulturpolitik-siegerentwurf-permanente-kuenstlerischen-kontextualisierung-lueger-denkmal-httpslidostandardatpderstandardarticles172519editcanvascomponentdoc-1h1oohfm50; https://www.kleinezeitung.at/kultur/5877477/Wien_LuegerDenkmal_Schandwache-fuer-die-Schande; https://www.derstandard.at/story/2000120484297/kuenstler-verewigten-graffiti-auf-karl-lueger-denkmal-mit-beton and many more).
The fact that there is great public interest in the control of official actions by executive bodies in public or generally in the behavior of officials in public and that reports on this are made regularly is also evident from an official search on the Internet (https://ooe.orf.at/stories/3216214/ or https://ooe.orf.at/stories/3225647/; https://wien.orf.at/stories/3206704/; https://kaernten.orf.at/stories/3255532/).
The findings regarding the effort involved in obtaining the requested data are undisputed. Furthermore, the authority concerned has not argued that the provision of information in question would impair it in the performance of its other duties or that the data is not available.
3. Legal assessment:
The admissible complaint is justified.
3.1. Judgment point A) I. - Appeal granted: 3.1. Judgment point A) Roman one. - Appeal granted:
3.1.1. Legal framework:
According to Section 20, Paragraph 4 of the Federal Constitutional Law, all bodies entrusted with tasks of the federal, state and municipal administration as well as the bodies of other public bodies must provide information on matters within their area of responsibility, provided that a statutory duty of confidentiality does not conflict with this. More detailed regulations are laid down by the Federal Information Obligation Act and the State Information Obligation Acts.According to Paragraph 20, Paragraph 4 of the Federal Constitutional Law, all bodies entrusted with tasks of the federal, state and municipal administration as well as the bodies of other public bodies must provide information on matters within their area of responsibility, provided that a statutory duty of confidentiality does not conflict with this. More detailed regulations are laid down by the Federal Information Obligation Act and the State Information Obligation Acts.
According to Section 1, Paragraph 1 of the Information Obligation Act, federal bodies are required to provide information on matters within their sphere of influence, provided that this does not conflict with a statutory duty of confidentiality. According to Section 1, Paragraph 2 of the Information Obligation Act, information may only be provided to such an extent that it does not significantly impair the performance of the other administrative tasks. It may not be provided if it is obviously requested maliciously.According to Paragraph 1, Paragraph 1 of the Information Obligation Act, federal bodies are required to provide information on matters within their sphere of influence, provided that this does not conflict with a statutory duty of confidentiality. According to Paragraph 1, Paragraph 2 of the Information Obligation Act, information may only be provided to such an extent that it does not significantly impair the performance of the other administrative tasks. It may not be provided if it is obviously requested maliciously.
According to the consistent case law of the Administrative Court, only secure knowledge - whether in the factual or legal area - can be the subject of information under the Information Obligation Act. Providing information therefore means passing on information about matters within the authority's sphere of activity that are known to the authority - from the contents of the file - and that do not have to be obtained for the purpose of fulfilling the obligation to provide information. According to the Information Obligation Act, the authority is therefore not obliged to carry out extensive elaborations, to produce reports or statistics, or to interpret decisions (cf. VwGH 09.09.2015, 2013/04/0021 mwH and VwGH 10.12.1991, 91/04/0053). According to the consistent case law of the Administrative Court, only secure knowledge - whether in the factual or legal area - can be the subject of information under the Information Obligation Act. Providing information therefore means passing on information about matters within the authority's area of responsibility that are known to the authority - from the contents of the file - and that do not have to be obtained for the purpose of fulfilling the obligation to provide information. According to the Information Obligation Act, the authority is therefore not obliged to carry out extensive elaborations, to produce reports or statistics or to interpret decisions (see VwGH 09.09.2015, 2013/04/0021 mwH and VwGH 10.12.1991, 91/04/0053).
The obligation to provide information includes (only) the obligation to provide information about the authority's activities, but not an obligation to justify official action or omission. The legislator did not want to impose on the executive bodies, by way of the obligation to provide information, an obligation to justify their actions and omissions to the citizen who made the request and thus - ultimately - to justify them (VwGH 11.10.2000, 98/01/0473).
The obligation to provide information is further restricted in the provision of Section 1 Paragraph 2 of the Information Obligation Act, according to which information is only to be provided to the extent that it does not significantly impair the performance of the other tasks of the administration. This is to ensure that requests for information that are justified in themselves do not place an excessive burden on the administration and thereby prevent it from carrying out its other tasks (see these previous paragraphs and with many other references VwGH 13.09.2016, Ra 2015/03/0038). The obligation to provide information is further restricted in the provision of paragraph one, subsection 2 of the Information Obligation Act, according to which information is only to be provided to the extent that it does not significantly impair the performance of the administration's other tasks. This is to ensure that requests for information that are justified in themselves do not place an excessive burden on the administration and thereby prevent it from carrying out its other tasks (see these previous paragraphs and with many other references VwGH 13.09.2016, Ra 2015/03/0038).
If information is not provided, a decision must be issued to this effect at the request of the person requesting the information. The AVG applies as the procedural rules according to which the decision is to be issued, unless another procedural law applies to the matter in which information is to be provided (Section 4 of the Information Obligation Act). If information is not provided, a decision must be issued on this at the request of the person requesting the information. The AVG applies as the procedural rules according to which the decision is to be issued, unless another procedural law applies to the matter in which information is to be provided (Section 4 of the Information Obligation Act).
According to the case law of the Administrative Court (cf. VwGH 29.05.2018, Ra 2017/03/0083), if the provision of information could conflict with statutory confidentiality obligations, whereby in these cases a balancing decision must be made (cf. also VwGH 13.09.2016, Ra 2015/03/0038 for more details), the information is only to be withheld under the law “to the extent” that it conflicts with a statutory confidentiality obligation. This requires comprehensible findings about the circumstances on which the refusal is based. If the two interests are of equal importance, there is no obligation of confidentiality on the part of the authority that prevents the provision of information; (only) if the party's interests in confidentiality outweigh those of the party concerned, the authority is prevented from providing information (VwGH 28.01.2019, Ra 2017/01/0140). In addition, the independent obligation to keep personal data secret, as described in Section 1 Paragraph 1 and Paragraph 2 of the Data Protection Act (DSG), is also considered a statutory duty of confidentiality. According to the case law of the Administrative Court (see VwGH May 29, 2018, Ra 2017/03/0083), if statutory confidentiality obligations could conflict with the provision of information, in which case a balancing decision must be made (see also VwGH September 13, 2016, Ra 2015/03/0038), the information is only to be withheld by law “to the extent” that it conflicts with a statutory confidentiality obligation. This requires comprehensible findings about the circumstances on which the refusal is based. If the two interests are of equal importance, there is no obligation of confidentiality on the part of the authority to provide information; (only) if the party's interests in confidentiality outweigh the interests of the party, the authority is prevented from providing information (VwGH 28.01.2019, Ra 2017/01/0140). The independent obligation to keep personal data confidential, as described in paragraph one, subsection one and subsection two of the Data Protection Act (DSG), also comes into consideration as a statutory duty of confidentiality.
3.1.2. It must therefore be examined in the specific case whether the obligation to maintain official secrecy stipulated in Article 20, paragraph 3 of the Federal Constitutional Court Act - as a statutory duty of confidentiality - or data protection provisions (Section 1 of the DSG and the provisions of the GDPR) conflict with the obligation to provide information:3.1.2. It must therefore be examined in the specific case whether the obligation to maintain official secrecy stipulated in Article 20, Paragraph 3, B-VG - as a statutory duty of confidentiality - or data protection provisions (Section one, DSG and the provisions of the GDPR) conflict with the obligation to provide information:
3.1.2.1. Data protection review; balancing of interests:
Section 1 DSG (constitutional provision) reads as follows: Paragraph one, DSG (constitutional provision) reads as follows:
"Basic right to data protection
(1) Everyone has the right to keep personal data concerning him or her confidential, in particular with regard to respect for his or her private and family life, insofar as there is a legitimate interest in doing so. The existence of such an interest is excluded if data is not accessible to a confidentiality claim due to its general availability or because it cannot be traced back to the person concerned.
(2) To the extent that the use of personal data is not in the vital interest of the data subject or with his consent, restrictions on the right to confidentiality shall only be permissible to protect the overriding legitimate interests of another person, and in the case of interventions by a state authority only on the basis of laws that are necessary for the reasons set out in Article 8 paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Federal Law Gazette No. 210/1958. Such laws may only provide for the use of data which, by their nature, are particularly worthy of protection to protect important public interests and must at the same time establish appropriate guarantees for the protection of the data subject's interests in confidentiality. Even in the case of permissible restrictions, the interference with the fundamental right may only be carried out in the mildest way that achieves the objective.(2) If the use of personal data is not in the vital interest of the person concerned or with his consent, restrictions on the right to confidentiality are only permissible to protect the overriding legitimate interests of another person, and in the case of interventions by a state authority only on the basis of laws that are necessary for the reasons stated in Article 8, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Federal Law Gazette No. 210 of 1958. Such laws may only provide for the use of data which, by their nature, are particularly worthy of protection to protect important public interests and must at the same time establish appropriate guarantees for the protection of the interests of the persons concerned in confidentiality. Even in the case of permissible restrictions, the interference with the fundamental right may only be carried out in the mildest way that achieves the objective.
(3) […]“
The relevant provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119 of 4 May 2016 (hereinafter: GDPR) read in extracts as follows:
Article 4
Definitions
For the purposes of this Regulation, the following terms shall apply:
(1) “personal data” means any information relating to an identified or identifiable natural person (hereinafter “data subject”); a natural person is considered identifiable if he or she can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
(2) […]
Article 6
"Legality of processing
(1) Processing shall be lawful only if at least one of the following conditions is met:
a) the data subject has given consent to the processing of personal data concerning him or her for one or more specific purposes;
b) the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
c) the processing is necessary for compliance with a legal obligation to which the controller is subject;
d) the processing is necessary to protect the vital interests of the data subject or of another natural person;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) processing is necessary to safeguard the legitimate interests of the controller or of a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.
(2) Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for the purpose of complying with points (c) and (e) of paragraph 1 by specifying more precisely specific processing requirements and other measures to ensure lawful and fair processing, including for other specific processing situations as set out in Chapter IX.(2) Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for the purpose of complying with points (c) and (e) of paragraph 1 by specifying more precisely specific processing requirements and other measures to ensure lawful and fair processing, including for other specific processing situations as set out in Chapter IX.
(3) The legal basis for the processing operations referred to in points (c) and (e) of paragraph 1 shall be:
(a) Union law; or
(b) Member State law to which the controller is subject.
The purpose of the processing must be specified in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, it must be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions adapting the application of the rules of this Regulation, inter alia, provisions on the general conditions governing the lawfulness of processing by the controller, the types of data processed, the data subjects concerned, the entities to which and for which purposes the personal data may be disclosed, the purpose limitation, the storage period and the processing operations and procedures to be applied, including measures to ensure lawful and fair processing, such as those for other specific processing situations referred to in Chapter IX. Union or Member State law must pursue an objective in the public interest and be proportionate to the legitimate purpose pursued. The purpose of the processing must be specified in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, it must be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of the rules of this Regulation, including provisions on the general conditions governing the lawfulness of processing by the controller, the types of data processed, the data subjects concerned, the entities to which and for what purposes the personal data may be disclosed, the purpose limitation, the period for which they may be stored and the processing operations and procedures that may be applied, including measures to ensure lawful and fair processing, such as those for other specific processing situations referred to in Chapter IX. Union or Member State law must pursue an objective in the public interest and be proportionate to the legitimate purpose pursued.
(4) Where processing for a purpose other than that for which the personal data were collected is not based on the consent of the data subject or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to protect the objectives referred to in Article 23(1), the controller shall, in order to determine whether processing for another purpose is compatible with that for which the personal data were initially collected, take into account, inter alia:
(a) any link between the purposes for which the personal data were collected and the purposes of the intended further processing;
(b) the context in which the personal data were collected, in particular as regards the relationship between the data subjects and the controller;
(c) the nature of the personal data, in particular whether special categories of personal data are processed pursuant to Article 9 or whether personal data concerning criminal convictions and offences are processed pursuant to Article 10;
(d) the possible consequences of the intended further processing for the data subjects;
(e) the Existence of suitable guarantees, which may include encryption or pseudonymization.
The authority concerned based its refusal to provide information in the present case on the fact that the outcome of a disciplinary review of the civil servants' conduct undoubtedly concerned personal information and that this was fundamentally covered by the fundamental right to data protection stipulated in Section 1 of the Data Protection Act. The authority concerned came to the conclusion that the complainant did not have an overriding legitimate interest, but without giving any further reasons for this or weighing up the opposing interests.The authority concerned based its refusal to provide information in the present case on the fact that the outcome of a disciplinary review of the civil servants' conduct undoubtedly concerned personal information and that this was fundamentally covered by the fundamental right to data protection stipulated in Section 1 of the Data Protection Act. The authority concerned came to the conclusion that the complainant did not have an overriding legitimate interest, but without giving any further reasons for this or weighing up the opposing interests.
The complainant essentially counters this by arguing that the authority concerned should have carried out an objective balancing of interests between the affected interest in the officers' privacy and his right to information as a journalist. The authority concerned violated the principles established by the ECHR and prevented him as a journalist from exercising his supervisory function. There is no legitimate interest in confidentiality.
Information regarding the outcome of the internal review of the conduct of the two police officers undoubtedly involves personal data of the two officers concerned. The officers' names are not directly mentioned and the complainant did not request this. Nevertheless, it can be assumed that the officers concerned are identifiable at least by a certain group of people (e.g. by the people present at the scene of the operation, the family or professional environment of the officers concerned or based on the operation report of the authority concerned). This identifiability is given regardless of any publication of video recordings of the police operation on the Internet.The passing on or publication of this data by the authority concerned therefore constitutes an infringement of the right to confidentiality or data protection under the GDPR, which can only be justified according to the criteria of Section 1 Paragraph 2 of the Data Protection Act or Article 6 of the GDPR. However, the GDPR itself points out in Recital 4 that the protection of personal data is not an unrestricted right, but must be weighed against other fundamental rights in view of its social function and while respecting the principle of proportionality. The regulation is in line with all fundamental rights and respects all freedoms and principles recognised by the Charter of Fundamental Rights of the European Union (CFR), in particular freedom of expression and freedom of information as they arise from Article 11 of the CFR. The possibility of using case law relating to the ECHR to interpret the CFR is opened up in Article 52 Paragraph 3 of the CFR. Information regarding the outcome of the internal review of the conduct of the two police officers undoubtedly involves personal data of the two officers concerned. The names of the officers are not directly mentioned and the complainant did not request this either. Nevertheless, it can be assumed that the officers concerned are identifiable at least by a certain group of people (e.g. by the people present at the scene of the incident, the family or professional environment of the officers concerned or based on the incident report of the authority concerned). This identifiability is given regardless of any publication of video recordings of the police operation on the Internet. The passing on or publication of this data by the authority concerned therefore constitutes an infringement of the right to confidentiality or data protection under the GDPR, which can only be justified according to the criteria of paragraph one, paragraph 2, DSG or Article 6, GDPR. However, the GDPR itself points out in its Recital 4 that the protection of personal data is not an unrestricted right, but must be weighed against other fundamental rights in terms of its social function and in compliance with the principle of proportionality. The regulation is in line with all fundamental rights and respects all freedoms and principles recognized by the Charter of Fundamental Rights of the European Union (CFR), in particular freedom of expression and freedom of information as they arise from Article 11 of the CFR. The possibility of using case law that refers to the ECHR to interpret the CFR is opened up in Article 52, paragraph 3 of the CFR.
In the present complaint procedure under the Information Obligation Act, the interests of the two law enforcement officers involved in keeping their personal data confidential (specifically the classification of their actions in the context of a police operation in public) and the interest of a journalist in being provided with information for his research work for an intended publication are essentially opposed.
The scope of the provisions that may restrict the right to information on the permissible refusal of information on grounds of confidentiality - just like the scope of the subjective right to information granted by the information obligation laws on the basis of Article 20 paragraph 4 of the Federal Constitution - must be interpreted in a constitutional manner based on the constitutionally-ranking provision of Article 10 of the ECHR in the light of the relevant case law of the European Court of Human Rights. In the relevant context, a balancing exercise must therefore be carried out with regard to the question of whether statutory confidentiality obligations preclude the requested provision of information, taking Article 10 of the ECHR into account. In the course of this balancing exercise, it must be examined, among other things, whether any statutory confidentiality obligations correspond to the substantive statutory reservation of Article 10, Paragraph 2 of the ECHR, i.e. whether they pursue a legitimate purpose of intervention within the meaning of this provision and are necessary in a democratic society and ultimately proportionate. The scope of the provisions that may restrict the right to information on the permissible refusal of information on grounds of confidentiality - just like the scope of the subjective right to information granted by the information obligation laws on the basis of Article 20, Paragraph 4 of the Federal Constitution - must be interpreted in a constitutional manner based on the constitutionally-ranking provision of Article 10 of the ECHR in the light of the case law of the European Court of Human Rights. In the relevant context, a balancing exercise must therefore be carried out taking into account Article 10 of the ECHR with regard to the question of whether statutory confidentiality obligations conflict with the requested provision of information. In the course of this balancing exercise, it must be examined, among other things, whether any statutory confidentiality obligations comply with the substantive legal reservation of Article 10, Paragraph 2, ECHR, i.e. whether they pursue a legitimate purpose of intervention within the meaning of this provision and are necessary in a democratic society and ultimately proportionate in the end.
According to the case law of the ECtHR, the right to freedom of expression enshrined in Article 10 ECHR is to be interpreted as including - under certain conditions - a right to access information. In determining the scope of the right of access to information, the following criteria are essentially relevant: the purpose and aim of the information request (is the collection of information a relevant preparatory step for journalistic or other activities intended to create a forum for a public debate or which constitutes an essential element of such a debate?), the actual necessity of the information request for the exercise of freedom of expression, the nature of the information requested (the information, data or documents to which access is requested must generally pass the test of whether they are in the public interest; the need for disclosure may exist if disclosure ensures, among other things, transparency about the manner in which official business is conducted and about matters that are of interest to society as a whole), the role of the access applicant (as a journalist or as a "social watchdog" or non-governmental organization whose activities related to matters of public interest), and finally the existence of ready and available information (VwGH 29.05.2018, Ra 2017/03/0083, with reference to ECtHR of 8.11.2016, Magyar Helsinki Bizottsag, 18030/11, in particular Z 131 and 156 ff.). According to the case law of the ECtHR, the right to freedom of expression enshrined in Article 10 of the ECHR is to be interpreted as including – under certain conditions – a right to access information. In determining the scope of the right of access to information, the following criteria are essentially relevant: the purpose and aim of the information request (is the collection of information a relevant preparatory step for journalistic or other activities intended to create a forum for a public debate or which constitutes an essential element of such a debate?), the actual necessity of the information request for the exercise of freedom of expression, the nature of the information requested (the information, data or documents to which access is requested must generally pass the test of whether they are in the public interest; the need for disclosure may exist if disclosure ensures, among other things, transparency about the manner in which official business is conducted and about matters that are of interest to society as a whole), the role of the access applicant (as a journalist or as a "social watchdog" or non-governmental organization whose activities related to matters of public interest), and finally the existence of ready and available information (VwGH 29.05.2018, Ra 2017/03/0083, with reference to ECHR of November 8, 2016, Magyar Helsinki Bizottsag, 18030/11, in particular paragraphs 131 and 156 ff.)
The Administrative Court stated, with reference to the criteria developed by the ECHR, that the provisions that allow the party obliged to provide information to refuse to provide requested information should be interpreted narrowly, in particular if a request for information is to be seen as a relevant preparatory step for journalistic or other activities intended to create a forum for a public debate, the requested information is in the public interest and the person requesting information has a role as a "watchdog" within the meaning of the ECHR's case law (VwGH of May 29, 2018, Ra 2017/03/0083).
Against this background, the following arises for the present case:
The fact that the request for information is in the interest of the general public (see also VwGH 28.06.2021, Ra 2019/11/0049), and that the complainant works as a journalist in the news sector and thus fulfills the role of a "social watchdog" (see again VwGH 28.06.2021, Ra 2019/11/0049) is no longer disputed and is used as the basis for the following balancing of interests. Nor is it disputed that the Karl Lueger memorial is a polarizing monument that has repeatedly been controversially discussed in the media, and that there is a fundamental interest of the general public in the legal classification of the official conduct of law enforcement officers in the context of an operation in public. The complainant must therefore be granted that there is (still) great public interest in a public debate about the nature of the specific operation in front of the Karl Lueger memorial.The fact that the request for information is in the public interest (see also VwGH 28.06.2021, Ra 2019/11/0049) and that the complainant works as a journalist in the news sector and thus fulfils the role of a "social watchdog" (see again VwGH 28.06.2021, Ra 2019/11/0049) is no longer disputed and will be used as the basis for the following balancing of interests. It is also not disputed that the Karl Lueger Memorial is a polarizing monument that has repeatedly been controversially discussed in the media, and that there is a fundamental public interest in the legal classification of the official conduct of law enforcement officers during a public deployment. The complainant must therefore be granted the fact that there is (still) a great public interest in a public debate about the nature of the specific deployment in front of the Karl Lueger Memorial.
In this light, the requested information is in any case suitable to contribute to transparency regarding the manner in which official business is conducted (“the manner to conduct public affairs”, ECtHR [Grand Chamber] 8.11.2016, Magyar Helsinki Bizottsag, 18030/11, Z 161) (cf. again VwGH 29.05.2018, Ra 2017/03/0083). The information requested by the complainant is also necessary in order to be able to assess the operation and open a debate. In this light, the requested information is in any case suitable for contributing to transparency about the manner in which official business is conducted ("the manner to conduct public affairs", ECtHR [Grand Chamber] 8.11.2016, Magyar Helsinki Bizottsag, 18030/11, paragraph 161, compare again VwGH 29.05.2018, Ra 2017/03/0083). The information requested by the complainant is also necessary in order to be able to assess the operation and open a debate.
There were no indications in the proceedings that the requested information did not exist and was not available.
Four of the above-mentioned criteria of the ECHR for determining the scope of the right of access must therefore be considered to have been met, namely the purpose and aim of the request for information as a preparatory step for journalistic activities to create a forum for a necessary and important public debate, the role of the person requesting access as a journalist and thus as a public watchdog, the nature of the information requested as one that is in the great public interest and the disclosure of which is intended to create transparency about the conduct of the executive during a police operation in public, and the existence of the available information.
The public interest in a broad discourse on the actions surrounding the Karl Lueger memorial and the conduct of the executive in this context, as well as the essential role of the complainant and the undisputedly suitable and available information, are offset by the interests or right of the law enforcement officers involved in the operation to keep their personal data confidential.
In the course of weighing up these interests, the subject matter of the request for information must first be taken into account: The complainant requested information regarding the outcome of the internal review of the conduct of the two police officers during the operation at the Karl Lueger Memorial on October 5, 2020. In the opinion of the court, against the background of his research interest as set out in the oral hearing, he was thus requesting information on the objective classification of the incidents surrounding the memorial in the tension between damage to property and freedom of demonstration, in particular how the police operation, in which the officers initially did not intervene, should be assessed. The mere communication of this legal classification of the police operation does not give rise to an accusation of a culpable breach of duty relevant under disciplinary law for the law enforcement officers concerned. In its first response of October 7, 2020 to the complainant's request, the authority concerned also stated that the two officials would be questioned separately, with the question being to what extent it was reasonable for two inspectors to assess a complex constitutional and administrative legal situation within two minutes. However, whether the officials were personally accused of a culpable breach of duty or the outcome of disciplinary proceedings was not the subject of the request for information.
Furthermore, when weighing up interests, it must be noted that this was specifically the exercise of a control function with regard to a publicly perceptible operation related to the fulfillment of the tasks and duties as an executive officer, which directly affected the official activities of the two officials. It is evident that there is a great public interest in controlling such executive operations - also against the background of creating trust in functioning and lawful operations by the executive.
When considering the weighting of the impairment, it must also be taken into account that the law enforcement officers concerned can only be fully identified by a small circle of people, namely their professional and immediate personal environment, and the officers must be aware that they are in the public eye during such an operation. Holoubek (ecolex 1990, 785) dealt with the issue of "public figures" as a benchmark in fundamental rights doctrine and essentially stated that a distinction must be made between "public officials" and "public figures": "Public officials" are holders of a public office. "Public figures" are well-known public figures who voluntarily place themselves at the center of the debate on a matter of public interest. According to various national and international case law, both must accept an increased level of criticism and reporting about their personal circumstances. This is usually justified by the fact that public figures generally have better access to the public than "normal" private individuals and can therefore respond to attacks accordingly. Secondly, such people often put themselves in the public spotlight "voluntarily". Thirdly, holders of public office or applicants for such office, i.e. "public officials", have assumed responsibility for the community with their office, which also means that the community has a right to information and control over the performance of its duties, which has an effect on the public. He further explained that these arguments are of course of varying weight, and in particular the chance of "correction through counter-arguments" and the voluntary nature of one's own "popularity" should not be overestimated. It should also be noted that the standard of "public figures" was developed in the law of insults and therefore cannot simply be transferred to the protection of privacy, especially for such people. A personal standard can therefore only be convincingly justified with regard to people holding public offices, to "public officials". Here, the assumption of the management of community affairs by a person justifies a legitimate increased interest of the community, including in the private environment that shapes and determines that person; here, public discussion and criticism represent an important opportunity for the community to influence the performance of duties by the office holder. The limit of the legitimate public interest in information and the right to criticize - which can only be determined in individual cases - lies where there is no connection with the office assumed and its performance (Holoubek, ecolex 1990, 788 f). In its decision of 2005 (VwGH 21.09.2005, 2004/12/0151), the VwGH took up Holoubek's considerations and stated that these should also be applied to the right to information on a case-by-case basis. In the specific case, there was a connection between the official duties undertaken by the officers and the supervisory function exercised by the complainant with regard to these duties, so that against this background it can also be assumed that the interests of the law enforcement officers take a back seat to the interests of the complainant.
It must also be taken into account that the aim of the request for information in question is to release data to a journalist and not to publish the information with access to the general public. The complainant stated both in the complaint and in the oral hearing that, in the context of his work, he is bound by legal framework conditions that serve to protect those affected by media reporting and that he is of course neither interested in the data of the persons concerned nor does he want to publish it. The complainant is himself bound by the data protection regulations when dealing with the requested data, which means that he is subject to corresponding protective obligations and balancing requirements in the event of publication. It should be noted that the images of the law enforcement officers were not published by the complainant, that they were published via another channel and that the complainant has not made any reference to them in previous reports. Even in the event of further reports, the complainant would again be bound by the legal framework (in particular data protection and personal rights), so that only a limited group of people would be able to identify the specific law enforcement officers.
In contrast, the authority concerned was also unable to provide convincing reasons at the oral hearing (VP p. 6/7) why there was no overriding public interest in the outcome of the internal review. In contrast, the authority concerned was also unable to provide convincing reasons at the oral hearing (VP session 6/7) why there was no overriding public interest in the outcome of the internal review.
Overall, it must therefore be assumed that the right to provide information to the complainant outweighs the right of the law enforcement officers involved to secrecy. The requested information is necessary for the complainant to carry out a task and for the public debate on the manner in which official acts with a high profile are to be carried out in connection with the monument in question in the light of the tension between freedom of demonstration and damage to property, and to maintain the public's trust in the objective performance of its duties by the executive.
The court hearing the case does not overlook the fact that there is fundamentally an interest of the body concerned in keeping data confidential relating to the verification of compliance with statutory provisions by an official body and relating to the implementation of supervisory measures, and that this interest has been regarded as predominant in the decisions made to date in the context of the balancing of interests (in particular VwGH 11.05.1990, 90/18/0040; VwGH 14.12.1995, 94/19/1174, VwGH 23.10.2013, 2013/03/0109; VwGH 25.11.2015, Ra 2015/09/0052 mwN). The facts underlying the present case differ, however, in that in the decisions cited, the person requesting information requested information about the outcome or status of disciplinary proceedings with regard to persons specifically named by him, but in the present case the person requesting information did not identify the person by name and the information requested is not intended to demonstrate a breach of duty by individual officials. Rather, the complainant is concerned with generally questioning and monitoring the specific public executive operation. In addition, the request for information - unlike in the constellations underlying the cited supreme court decisions - was made by a journalist in preparation for a public debate, which also had to be taken into account in the balancing of interests in favor of the complainant.
Other data protection requirements:
The provision of information is to be qualified as further processing of data that the authority concerned has determined in a different context and for a different purpose, which is why Article 6 Paragraph 4 of the GDPR applies to transmissions under the Information Obligation Act.The provision of information is to be qualified as further processing of data that the authority concerned has determined in a different context and for a different purpose, which is why Article 6 Paragraph 4 of the GDPR applies to transmissions under the Information Obligation Act.
In this context, the question arises whether the Information Obligation Act is a “legal provision of the Union or of the Member States which, in a democratic society, represents a necessary and proportionate measure to protect the objectives set out in Article 23 Paragraph 1”. In this context, the question arises whether the Information Obligation Act is a “legal provision of the Union or of the Member States which, in a democratic society, represents a necessary and proportionate measure to protect the objectives set out in Article 23 Paragraph 1”.
If this were to be denied, the balancing of interests stipulated in Article 6 (4) would apply according to the criteria specified therein, which would in any case be in favour of the data subject, since providing information would not correspond to a "compatible" purpose related to the original purpose of the processing and the balancing according to the other criteria would also be in favour of the data subject (since in the given case there would be no suitable guarantees such as encryption and there would be no cooperation between the data subjects and the complainant). However, this would mean that providing information concerning natural persons within the framework of the Information Obligation Act would be completely impossible. Consequently, there is much to be said for considering the Information Obligation Act as an intervention law within the meaning of Article 23 (1)(i) GDPR (to ensure the protection of the rights and freedoms of other persons). If this were to be denied, the balancing of interests stipulated in Article 6, paragraph 4 would apply according to the criteria mentioned there, which would in any case be in favor of the data subject, since providing information would not correspond to a "compatible" purpose related to the original purpose of the processing and the balancing according to the other criteria would also be in favor of the data subject (since in the given case there would be no suitable guarantees such as encryption and there would be no cooperation between the data subjects and the complainant). However, this would mean that providing information concerning natural persons within the framework of the Information Obligation Act would be completely impossible. Consequently, there is much to be said for considering the Information Obligation Act as an intervention law within the meaning of Article 23, paragraph one, letter i, GDPR (to ensure the protection of the rights and freedoms of other persons).
However, the Information Obligation Act would also be a lawful intervention law on the basis of Art. 6 (1) (c) and (e) GDPR, especially since the requirements for a corresponding domestic law must not be overstretched (see VfGH 04.03.2021, E4037/2020 and VwGH 21.12.2023, Ro 2021/04/0010, para. 55 ff.). According to Art. 6 (1) (c) GDPR, processing is permissible if it serves to fulfill a legal obligation. An example of such an obligation is the obligation to provide information under the (German) Freedom of Information Act (IFG) (Paal/Pauly, DS-GVO BDSG3 DS-GVO Art. 6 para. 18). This creates - comparable in terms of its basic intention to the Information Obligation Act - a right to access official information from the authorities that is in itself unconditional, but also delimited against other fundamental rights and thus possibly limited in substance. However, the Information Obligation Act would also be a lawful intervention law on the basis of Article 6, paragraph one, letters c and e of the GDPR, especially since the requirements of a corresponding domestic law must not be overstretched (see VfGH 04.03.2021, E4037/2020 and VwGH 21.12.2023, Ro 2021/04/0010, para. 55 ff.). According to Article 6, paragraph one, letter c of the GDPR, processing is permissible if it serves to fulfill a legal obligation. One example of such an obligation is the obligation to provide information under the (German) Freedom of Information Act (IFG) (Paal/Pauly, GDPR BDSG3 GDPR Article 6, para. 18). This creates - comparable in terms of its basic intention to the Information Obligation Act - a right to access official information from the authorities that is in itself unconditional, but also delimited from other fundamental rights and thus possibly limited in substance.
Against the background of the balancing of interests carried out above, there is therefore a suitable legal basis for (further) processing of the relevant personal data.
3.1.2.2. On the duty of confidentiality under Article 20 Paragraph 3 B-VG: 3.1.2.2. On the duty of confidentiality according to Article 20, Paragraph 3, B-VG:
According to Article 20, Paragraph 4, B-VG, all bodies entrusted with tasks of the federal, state and municipal administration as well as the bodies of other public bodies must provide information on matters within their sphere of activity, provided that a statutory duty of confidentiality does not conflict with this.According to Article 20, Paragraph 4, B-VG, all bodies entrusted with tasks of the federal, state and municipal administration as well as the bodies of other public bodies must provide information on matters within their sphere of activity, provided that a statutory duty of confidentiality does not conflict with this.
According to Article 20, Paragraph 3 of the Federal Constitutional Law, all bodies entrusted with federal, state and municipal administration tasks, as well as the bodies of other public bodies, are obliged, unless otherwise provided by law, to maintain confidentiality regarding all facts that have become known to them exclusively in the course of their official activities, the confidentiality of which is necessary in the interest of maintaining public peace, order and security, comprehensive national defense, foreign relations, in the economic interest of a public body, in the preparation of a decision or in the overriding interest of the parties. All persons who come into contact with the authority for any reason are to be regarded as "party" within the meaning of Article 20, Paragraph 3 of the Federal Constitutional Law (cf. VwGH January 28, 2019, Ra 2017/01/0140). When examining the party's interest in confidentiality, a balance must be struck between the interests, namely the interest in the information and the party's interest in confidentiality. If the two interests are of equal importance, the authority is not prevented from providing information by any obligation of confidentiality; (only) if the party's interests in confidentiality outweigh them, the authority is prevented from providing information (cf. VwGH 28.01.2019, Ra 2017/01/0140). According to Article 20, Paragraph 3, B-VG, all bodies entrusted with tasks of the federal, state and municipal administration as well as the bodies of other public law corporations are obliged, unless otherwise provided by law, to maintain confidentiality about all facts that have become known to them exclusively from their official activities, the confidentiality of which is necessary in the interest of maintaining public peace, order and security, comprehensive national defense, foreign relations, in the economic interest of a public law corporation, for the preparation of a decision or in the overriding interest of the parties. All persons who come into contact with the authority for any reason are to be regarded as a "party" within the meaning of Article 20, Paragraph 3, B-VG (Federal Constitutional Court Act, cf. VwGH, 28.01.2019, Ra 2017/01/0140). When examining the party's interest in confidentiality, a balancing of interests must be carried out, namely the interest in the information and the party's interest in confidentiality. If the two interests are of equal importance, the authority's obligation to maintain confidentiality does not prevent it from providing information; (only) if the party's interest in confidentiality outweighs them, the authority is prevented from providing information (cf. VwGH, 28.01.2019, Ra 2017/01/0140).At this point, reference is made to the detailed balancing of interests above, which not only recognizes an equal interest of the complainant in the information about the classification of the intervention of the law enforcement officers during the operation at the Karl Lueger memorial in his function as a journalist and with regard to his role in enabling a broad public discourse, but also a predominant interest. As a result, an obligation of confidentiality under Article 20 Paragraph 3 of the Federal Constitutional Law does not apply in the present proceedings. At this point, reference is made to the detailed balancing of interests above, which not only recognizes an equal interest of the complainant in the information about the classification of the intervention of the law enforcement officers during the operation at the Karl Lueger memorial in his function as a journalist and with regard to his role in enabling a broad public discourse, but also a predominant interest. This means that an obligation of confidentiality pursuant to Article 20, Paragraph 3, B-VG does not apply in the current proceedings.
3.1.3. On the effort involved in providing information:
According to Section 1, Paragraph 2 of the Information Obligation Act, information may only be provided to such an extent that it does not significantly impair the performance of the other administrative tasks.According to Paragraph 1, Paragraph 2, the Information Obligation Act, information may only be provided to such an extent that it does not significantly impair the performance of the other administrative tasks.
There were no indications in the proceedings that the request cannot be complied with due to the excessive impairment of the performance of the other tasks of the authority concerned.
Furthermore, it should be pointed out that the appeal to the reason of the significant impairment of the other tasks cannot, as a rule, justify a blanket refusal to provide information, and even in such a case, the information must be provided to the extent that the performance of the other tasks is not significantly impaired (cf. VwGH 29.05.2018, Ra 2017/03/0083 with reference to VwGH, 23.10.1995, 93/10/0009).In addition, it should be pointed out that the appeal to the reason of the significant impairment of the other tasks cannot, as a rule, justify a blanket refusal to provide information, and even in such a case, the information must be provided to the extent that the performance of the other tasks is not significantly impaired (cf. VwGH 29.05.2018, Ra 2017/03/0083 with reference to VwGH, 23.10.1995, 93/10/0009).
3.1.4. Result:
Overall, with regard to the request for information, there is a considerable public interest in transparency regarding official actions by public security agencies. The complainant is a "social watchdog" within the meaning of the applicable case law. His interest in providing information is therefore to be regarded as outweighing the interests of the authority concerned and the executive bodies concerned in refusing to provide information.
On the other hand, information on the outcome of any disciplinary proceedings that may have been initiated does not have to be made available, especially since this is not covered by the wording of the request for information addressed to the authority concerned. Contrary to what the authority concerned believed in the oral hearing (VP p. 4), the complainant did not reformulate or change his original request in this regard, and the wording of the request does not aim at information about the outcome of disciplinary proceedings. It is not assumed - contrary to the comment made by the representative of the authority concerned in the appeal hearing - that the complainant would have made an amendment to the application, which according to the VwGH, 28.06.2021, Ro 2021/11/0005, is not permitted in an appeal procedure under the Information Obligation Act and would lead to the VwG being incompetent. In the oral hearing, the complainant merely specified his research interest; the assumption that this would be an amendment to the application is not supported by the complainant's submissions at the oral hearing. However, information on the outcome of any disciplinary proceedings that may have been initiated does not have to be made available, especially since this is not covered by the wording of the request for information addressed to the authority concerned. Contrary to what the authority concerned believed at the oral hearing (VP Session 4), the complainant did not reformulate or change his original request in this regard, and the wording of the request does not aim to provide information on the outcome of disciplinary proceedings. It is not assumed - contrary to the comment made by the representative of the authority concerned at the appeal hearing - that the complainant would have made an amendment to the application, which according to VwGH, June 28, 2021, Ro 2021/11/0005, is not permitted in an appeal procedure under the Information Obligation Act and would lead to the VwG being incompetent. The complainant only specified his research interest in the oral hearing; the assumption that this would be a change to the application is not supported by the complainant's submissions in the oral hearing.
3.1.5. On the rectification of the decision and determination of the violation of law:
A decision to refuse to provide information pursuant to Section 4 of the Information Obligation Act is used exclusively to decide whether or not the person requesting information has a subjective right to be provided with the requested information (cf. VwGH 27.11.2018, Ra 2017/02/0141, para. 30, with further references). If the conditions for providing information are not met, the content of the authority's decision is the statement that the information is refused (cf. VwGH 24.5.2018, Ro 2017/07/0026, Rn 43, mwN). A notice of refusal to provide information pursuant to Paragraph 4 of the Information Obligation Act is used exclusively to decide whether or not the person requesting information has a subjective right to be provided with the requested information (cf. VwGH 27.11.2018, Ra 2017/02/0141, Rn 30, mwN). If the conditions for providing information are not met, the content of the authority's decision is the statement that the information is refused (cf. VwGH 24.5.2018, Ro 2017/07/0026, Rn 43, mwN).
Since the information provided is a mere declaration of knowledge and does not have the character of a decision, the information itself cannot be the subject of the ruling of an administrative court. The administrative court is solely responsible for determining whether the authority dealing with a request for information has rightly or wrongly refused to provide information. If the administrative court comes to the conclusion that the authority concerned has wrongfully refused to provide the information, it can only make this (declaratory) ruling (cf. VwGH 13.9.2016, Ra 2015/03/0038, para. 41, mwN; 24.5.2018, Ro 2017/07/0026, para. 39; VwGH 20.11.2020, Ra 2020/01/0239, para. 61 f; VwGH 27.11.2018, Ra 2017/02/0141 mwN). Since the information provided does not have the character of a decision as a mere declaration of knowledge, the information itself cannot be the subject of the ruling to be made in the case of an administrative court. The administrative court is solely responsible for determining whether the authority dealing with a request for information has rightly or wrongly refused to provide information. If the administrative court comes to the conclusion that the authority concerned has wrongfully refused to provide information, it can only make this (declaratory) determination (cf. VwGH 13.9.2016, Ra 2015/03/0038, Rn 41, mwN; 24.5.2018, Ro 2017/07/0026, Rn 39; VwGH 20.11.2020, Ra 2020/01/0239, Rn 61 f; VwGH 27.11.2018, Ra 2017/02/0141 mwN).
3.2. Judgment point A) II. - On applications for flat-rate reimbursement of expenses: 3.2. Judgment point A) Roman II. - On applications for flat-rate reimbursement of expenses:
According to Section 74, Paragraph 2 AVG, which is applicable to the administrative courts on the basis of Section 17 VwGVG, the administrative regulations determine the extent to which a party is entitled to a claim for reimbursement of costs. In the absence of a special regulation specific to the matter, Section 74, Paragraph 1 AVG applies, which states that each party must cover the costs incurred in the proceedings themselves (VwGH of July 24, 2008, 2007/07/0100).According to Paragraph 74, Paragraph 2, AVG, which is applicable to the administrative courts on the basis of Paragraph 17, VwGVG, the administrative regulations determine the extent to which a party is entitled to a claim for reimbursement of costs. In the absence of a specific special regulation, paragraph 74, paragraph one, AVG applies, which states that each party involved must cover the costs incurred in the proceedings themselves (VwGH of July 24, 2008, 2007/07/0100).
Since reimbursement of costs for an appeal procedure is not provided for by law under the Information Obligation Act, the parties' requests for costs were rejected in accordance with the ruling.
Regarding ruling point B) Inadmissibility of the appeal:
According to Section 25a, paragraph 1 VwGG, the administrative court must state in its ruling or decision whether the appeal is admissible in accordance with Article 133, paragraph 4 B-VG. This ruling must be briefly justified.According to Paragraph 25a, paragraph one, VwGG, the administrative court must state in its ruling or decision whether the appeal is admissible in accordance with Article 133, paragraph 4 B-VG. This ruling must be briefly justified.
According to Article 133, Paragraph 4 of the Federal Constitutional Law, an appeal against a decision of an administrative court is admissible if it depends on the solution of a legal question that is of fundamental importance, in particular because the decision deviates from the case law of the Administrative Court, there is no such case law, or the legal question to be resolved is not answered uniformly in the previous case law of the Administrative Court.According to Article 133, Paragraph 4 of the Federal Constitutional Law, an appeal against a decision of an administrative court is admissible if it depends on the solution of a legal question that is of fundamental importance, in particular because the decision deviates from the case law of the Administrative Court, there is no such case law, or the legal question to be resolved is not answered uniformly in the previous case law of the Administrative Court.
The appeal is not admissible according to Article 133, Paragraph 4 of the Federal Constitutional Court because the decision does not depend on the solution of a legal question of fundamental importance. There is neither a lack of case law from the Administrative Court nor does the decision in question deviate from the case law of the Administrative Court; furthermore, the present case law of the Administrative Court cannot be judged to be inconsistent. There are also no other indications of a fundamental importance. Rather, in its ruling of May 29, 2018, No. 2017/03/0083, the Administrative Court established criteria regarding the proportionality test that also had to be taken into account in the present case. However, in whose favor a balancing of interests is decided is a case-by-case decision and therefore not a legal question of fundamental importance.The appeal is not admissible according to Article 133, Paragraph 4 of the Federal Constitutional Court because the decision does not depend on the solution of a legal question of fundamental importance. There is neither a lack of case law from the Administrative Court nor does the decision in question deviate from the case law of the Administrative Court; furthermore, the present case law of the Administrative Court cannot be judged to be inconsistent. There are also no other indications of fundamental importance. Rather, in its ruling of May 29, 2018, No. 2017/03/0083, the Administrative Court established criteria regarding the proportionality test that also had to be taken into account in the present case. However, in whose favor a balancing of interests comes out is a decision on a case-by-case basis and therefore not a legal question of fundamental importance.
The decision had to be made in accordance with the ruling.
