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Germany > Right To Access

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
1	The legal framework (including jurisprudence) recognises a fundamental right of access to information.	Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.	2	NO		not mentioned
2	The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.	No=0, Partially=1, Yes=2	2	NO		not mentioned
3	3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law 3.2 The legal framework emphasises the benefits of the right to information?	3.1(Y/N - max 1 point) 3.2 (Y/N - max 1 point)	2	NO		not mentioned

Germany > Scope

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
4	Everyone (including non-citizens and legal entities) has the right to file requests for information.	Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons.	2	YES		Section 1: (1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act.
5	The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.	Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.	4	Partially		Section 2: 1. official information shall be defined as every record serving official purposes, irrespective of the mode of storage. This shall not include drafts and notes which are not intended to form part of a file;
6	Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).	Score 1 point for only documents, 1 point for information	2	NO		yes as Section 2 clearly covers both documents and information
7	The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.	Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).	8	Partially		Section 1: (1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act.
8	The right of access applies to the legislature, including both administrative and other information, with no bodies excluded.	Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government	4	Partially		This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law.	Only administrative documents
9	The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded.	Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government	4	Partially		see above	Only administrative documents
10	The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State).	Score 1 point if some, 2 points if all	2	YES		see above
11	The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er).	Score 1 point if some bodies, 2 points if all	2	YES		see above
12	The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding.	1 point for public functions, 1 point for public funding	2	YES		see above

Germany > Requesting Procedures

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
13	Requesters are not required to provide reasons for their requests.	Y/N answer 0 or 2 points	2	NO			there is no explicit reference to reasons in the FOI law
14	Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).	Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.	2	NO			the law does not state what must be provided in order to file a request.
15	There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.	Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought.	2	NO			there is no specific provision on this.
16	Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification.	Score 1 point for help in formulation and 1 point for clarification procedures	2	NO			no specific provision
17	Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.	Score Yes=2 point, No=0	2	NO			no specific provision
18	Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days	Score 1 point for receipt, 1 point for max 5 working days	2	NO			no specific provision
19	Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.	Score: 1 point for information not held, 1 for referrals or 2 for transfers	2	NO			no specific provision
20	Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).	Score: 2 points for Yes, only 1 point if some limitations	2	YES		Section 7(3) Information may be furnished verbally, in writing or in electronic form.
21	Public authorities are required to respond to requests as soon as possible.	Score: No=0, Yes=2 points	2	YES		Section 7(5) The information is to be made accessible to the applicant forthwith, with due regard to his or her interests.
22	There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).	Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.	2	YES		Section 7.5: One month	one month is about 20 working days
23	There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.	---	2	NO			no specific provision
24	It is free to file requests.	Score: No=0, Yes=2 points	2	YES		Section 10 Fees and expenses (1) Fees and expenses shall be charged for official acts pursuant to this Act. This shall not apply to the furnishing of basic items of information. (2) With due regard to the administrative expenditure involved, the fees shall be calculated such as to ensure that access to information pursuant to Section 1 can be claimed effectively. (3) The Federal Ministry of the Interior is authorised to assess the facts and circumstances determining the commensurate fee and to fix the scales of fees for official acts pursuant to this Act by means of statutory instruments, without the approval of the Bundesrat. Section 15 (2) of the Administrative Costs Act (VwKG) shall not be applicable.
25	There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free.	Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional	2	YES		see Section 10 above	fees may be charged for access above and beyond copying costs
26	There are fee waivers for impecunious requesters	---	2	NO			no specific provision
27	There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information.	Score: No=0, Yes=2 points	2	NO			under the EU PSI Directive databases can be sold

Germany > Exceptions

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
28	The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.	Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. >	4	NO		Section 1(3) (3) Provisions in other legislation on access to official information shall take precedence,
29	The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.	Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed	10	Partially		Section 3, 4, 5 and 6	Non permissible exceptions include protection of "temporary"information (Section 3.5), overbroad protection of decision making (Section 4) and intellectual property (Section 6), also info obtained in confidence (3.7) and the exclusion of the intelligence services and other bodies in Section 3.8
30	A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused.	Score 4 points and then deduct 1 point for each exception which is not subject to the harm test	4	Partially		Section 3, 4, 5 and 6	Most of the exceptions do not have a harm test (only 3.1, 3.2, 3.3, 3.6, and 4 have harm test)
31	There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.	Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.	4	Partially		Section 5: only for Data Protection
32	Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.	Score 1 point for each	2	Partially		Section 4.2 has reference with respect to decision making: (2) The applicant should be notified of the conclusion of the proceedings concerned. In addition Section 9(2) states that in cases in which the authority rejects the application in part or in its entirety, it is to provide notification as to whether and when partial or full access to the information is likely to be possible at a later juncture.
33	Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.	Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.	2	YES		Section 8 (2) The decision pursuant to Section 7 (1), sentence 1 shall be provided in writing and shall also be notified to the third party. The information may only be accessed when the decision is final and absolute in relation to the third party or if immediate enforcement has been ordered and a period of two weeks has elapsed since notifying the third party of the order. Section 9 (4) shall apply mutatis mutandis.	The law contains a provision for notifying third parties and giving them the opportunity to object; clear timeframes are established
34	There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed.	Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted	2	YES		Section 7. (2) Where an entitlement to partial access to information applies, the appurtenant application is to be granted to the extent to which information can be accessed without revealing information which is subject to confidentiality or without unreasonable administrative expenditure. The same shall apply where the applicant agrees to information concerning the interests of third parties being blanked out.
35	When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.	Score Y/N: 1 point for a and 1 point for b	2	NO		Section 9 (1) Notification of a ruling rejecting the application in part or in its entirety is to be provided within the period stipulated in Section 7 (5), sentence 2.	There is not any mention about the appeals procedures

Germany > Appeals

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
36	The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).	Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.	2	YES		Section 9: (4) It is permissible to challenge the decision to reject the application by lodging an administrative appeal or bringing an action to compel performance of the requested administrative act. Administrative appeal proceedings pursuant to the provisions of Part 8 of the Code of Administrative Court Procedure (VwGO) are also to be carried out when the decision has been reached by a supreme federal authority.
37	Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman).	1 for partial, 2 for yes	2	YES		Section 12 Federal Commissioner for Freedom of Information (1) Anyone considering their right to access to information pursuant to this Act to have been violated may appeal to the Federal Commissioner for Freedom of Information. (2) The function of Federal Commissioner for Freedom of Information shall be performed by the Federal Commissioner for Data Protection. (3) The provisions of the Federal Data Protection Act on the monitoring tasks of the Federal Commissioner for Data Protection (Section 24 (1) and (3) to (5)), on complaints (Section 25 (1), sentence 1, nos. 1 and 4, sentence 2 and sub sections 2 and 3) and on further tasks pursuant to Section 26 (1) to (3) shall apply mutatis mutandis.
38	The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.	Score: 1 point for appointment procedure, 1 point for security of tenure	2	YES		Section 23, Federal Data Protection Act (BDSG)
39	The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.	Score 1 point for reports to parliament, 1 point for budget approved by parliament	2	Partially		Section 26 (1) of the Federal Data Protection Act (BDSG): The Federal Commissioner for Data Protection and Freedom of Information shall submit an activity report to the German Bundestag every two years. The report shall inform the German Bundestag and the public about important developments in the field of data protection. This also applies to FOI as per Article 12.3 of the FOI Act; the budget is part of that of the Federal Minister of the Interior (Section 22(5) of the BDSG)	Report is only every 2 years
40	There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.	Score 1 point for not politically connected, 1 point for professional expertise	2	NO		not mentioned
41	The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies..	Score 1 point for reviewing classified documents, 1 point for inspection powers	2	NO		not mentioned
42	The decisions of the independent oversight body are binding.	Score N=0, Y=2 points	2	NO		BfDI can give (and publish) his comments in cases where access was fully or partially denied and can pronounce objections against federal agencies and the ministries in cases of severe violations (Section 12 para 3 FOIA).
43	In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information.	1 for partial, 2 for fully	2	NO		not mentioned
44	Requesters have the right to lodge a judicial appeal.	1 for partially, 2 for fully.	2	YES		Section 9(4) It is permissible to challenge the decision to reject the application by lodging an administrative appeal or bringing an action to compel performance of the requested administrative act. Administrative appeal proceedings pursuant to the provisions of Part 8 of the Code of Administrative Court Procedure (VwGO) are also to be carried out when the decision has been reached by a supreme federal authority.	court appeals specifically referenced
45	Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.	1 for free, 1 for no lawyer required.	2	YES		Section 12(1) Anyone considering their right to access to information pursuant to this Act to have been violated may appeal to the Federal Commissioner for Freedom of Information.	appeals to BFDI need no lawyer and are free
46	The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).	Score 1 point for appealing refusals, additional points for appealing other violations.	4	Partially		Section 12(1) Anyone considering their right to access to information pursuant to this Act to have been violated may appeal to the Federal Commissioner for Freedom of Information.	appears that any violation fo the act can be appealed which would include timeframes, fees, etc.
47	Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).	Score 1 point for clear procedures, 1 point for timelines.	2	NO		not mentioned
48	In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.	Score Y/N and award 2 points for yes.	2	NO		not mentioned
49	The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)	1 for partial, 2 for fully.	2	NO		not mentioned

Germany > Sanctions & Proteccions

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
50	Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.	Score 1 point for sanctions for underming right, 1 point for destruction of documents	2	NO		not mentioned
51	There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).	Score 1 point for either remedial action or sanctions, 2 points for both	2	NO		not mentioned
52	The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.	Score 1 for oversight body, 1 for immunity for others	2	NO		not mentioned
53	There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).	Score 2 for strong protections, 1 for moderate protections	2	NO		not mentioned

Germany > Promotional measures

Indicator	Description	Scoring instructions	MAX score	Findings	Points	Article	Comments
54	Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.	Score Y/N, Y=2 points	2	NO		not mentioned
55	A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information.	Score Y/N, Y=2 points	2	NO		not mentioned
56	Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law.	Score Y/N, Y=2 points	2	NO		not mentioned
57	A system is in place whereby minimum standards regarding the management of records are set and applied.	Score Y/N, Y=2 points	2	NO		not mentioned
58	Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public.	Score Y/N, Y=2 points	2	NO		not mentioned
59	Training programs for officials are required	Score Y/N, Y=2 points	2	NO		not mentioned
60	Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with.	Score Y/N, Y=2 points	2	NO		not mentioned
61	A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law.	Score Y/N, Y=2 points	2	NO		not mentioned