Switzerland
Name of law: Federal Acton Freedom of Information in the Administration(Freedom of Information Act, FoIA)
First adopted: 2004
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 2004
Last modified: n/a
RTI Rating last updated: n/a
Introduction
Similar to many other Western European states, Switzerland has a relatively weak RTI law. The most substantial issues exist in the problematic exceptions regime, which has exceptions that are beyond international standards and permits exemptions found in other legislation. The exceptions are also neither subject to a harm-test, nor a public interest override. The appeals system is also rather toothless, as there is no provision relating to internal reconsideration and the external administrative oversight body is ineffective, in that its decisions are not binding. In addition to this lack of oversight, there is no system for sanctioning public authorities who routinely fail in their obligations under the legislation.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 3 | 6 |
| 2 | Scope | 19 | 30 |
| 3 | Requesting Procedures | 18 | 30 |
| 4 | Exceptions & Refusal | 13 | 30 |
| 5 | Appeals | 14 | 30 |
| 6 | Sanctions & Protections | 0 | 8 |
| 7 | Promotional Measures | 10 | 16 |
| ∑ = 77 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
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 | 0 | The Federal Constitution of Switzerland, as amended through Oct 15, 2002, contains only a guarantee of freedom of information, and not a right to government-held information. Article 16 reads: "1) The freedom of opinion and information is guaranteed. 2) All persons have the right to form, express, and disseminate their opinions freely. 3) All persons have the right to receive information freely, to gather it from generally accessible sources and to disseminate it." | Link to the Constitution of Switzerland (English version) here |
1. Right of Access |
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 | YES | 2 | Article 6 (Principle of Freedom of Information): "Any person has the right to inspect offici al documents and to obtain information about the content of official documents. 2 The documents may be inspected in situ or a copy thereof may be requested. The legislation governing copyright is reserved. 3 Where an official document has already been published by the Federal Government in paper or electronic format, the rights under paragraphs 1 and 2 above are deemed to have been fulfilled." | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | Article 1. Aim and subject matter "This Act seeks to promote transparency with regard to the mandate, organisation and activities of the Administration. To this end, it contributes to informing the public by ensuring access to official documents." | |
2. Scope |
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 | 2 | Article 6 Principle of freedom of information 1.Any person has the right to inspect official documents and to obtain information about the content of official documents. 2 The documents may be inspected in situ or a copy thereof may be requested. The legislation governing copyright is reserved. 3 Where an official document has already been published by the Federal Government in paper or electronic format, the rights under paragraphs 1 and 2 above are deemed to have been fulfilled." | |
2. Scope |
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 | 2 | Article 5 (Official Documents): "1. An official document shall be any information: a. which has been recorded, regardless of the medium; b. retained by the authority which issued same or to which it has been communicated; and c. which concern the execution of a public function. 2. Documents which have been produced by means of a simple computerized process from recorded information which meets the requirements pursuant to (a), (b) and (c) above, shall be deemed to be official documents. 3. Not deemed to be official documents are any documents which: a. are used by an authority in a commercial capacity; b. have not been issued; or c. are intended for personal use. " Article 8 (Special Cases): "1. There is no right of access to official documents of joint reporting proceedings. 2 Access to official documents is granted only after the political or administrative decisions based thereon have been taken. " | Official documents of joint reporting proceedings; Official documents in general and documents about the status of pending or future negotiations to be granted are excluded from the scope (2 points loss). |
2. Scope |
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 | YES | 2 | Article 6 Principle of freedom of information 1.Any person has the right to inspect official documents and to obtain information about the content of official documents. 2 The documents may be inspected in situ or a copy thereof may be requested. The legislation governing copyright is reserved. 3 Where an official document has already been published by the Federal Government in paper or electronic format, the rights under paragraphs 1 and 2 above are deemed to have been fulfilled." | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration 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 | 6 | Article 2: (Personal scope of application): "1. This Act applies to: a. the Federal Administration b. public and private bodies outside the Federal Administration, insofar as they enact legislation or issue first instance rulings within the meaning of Article 5 of the Federal Act of 20 December 1968 3 on Administrative Procedure (Administrative Procedure Act); c. the Parliamentary Services. 2 This Act does not apply to the Swiss National Bank or the Swiss Financial Market Supervisory Authority. " | This Act does not apply to the Swiss National Bank or the Swiss Financial Market Supervisory Authority (2 points loss). The Federal Council shall be authorized to exclude other departments of the Federal Administration, as well as other public and private bodies outside the Federal Administration from the scope of the act. |
2. Scope |
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 | YES | 4 | Article 2: (Personal scope of application): "1. This Act applies to: <..> c. the Parliamentary Services. <...>" | No mention about exclusions of bodies of the Parliament. |
2. Scope |
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 | 1 | Article 2: (Personal scope of application): "1. This Act applies to: a. the Federal Administration b. public and private bodies outside the Federal Administration, insofar as they enact legislation or issue first instance rulings within the meaning of Article 5 of the Federal Act of 20 December 1968 3 on Administrative Procedure (Administrative Procedure Act); c. the Parliamentary Services.<...>" | No mention about bodies of the judicial branch but the administrative service is included |
2. Scope |
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 | NO | 0 | Not specifically mentioned. | |
2. Scope |
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 | Partially | 1 | Article 2: (Personal scope of application): "1. This Act applies to: a. the Federal Administration b. public and private bodies outside the Federal Administration, insofar as they enact legislation or issue first instance rulings within the meaning of Article 5 of the Federal Act of 20 December 1968 3 on Administrative Procedure (Administrative Procedure Act); c. the Parliamentary Services. <..>" | |
2. Scope |
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 | Partially | 1 | Article 2: (Personal scope of application): "1. This Act applies to: a. the Federal Administration b. public and private bodies outside the Federal Administration, insofar as they enact legislation or issue first instance rulings within the meaning of Article 5 of the Federal Act of 20 December 1968 3 on Administrative Procedure (Administrative Procedure Act); c. the Parliamentary Services. <..>" | No mention about bodies that receives significant public funding (1 point loss). |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | Article 10 (Access Application) Section 3: "The application must be formulated in a sufficiently accurate manner;" ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 3. Application for Access to Public Documents and Competencies. Article. 7 (Content of the application). Section 1 "An application for access to an official document may be submitted in any form without stating the grounds. Ordinance on the Principle of Freedom of Information in Public Administration, Article 7, Section 1." | Any individual can access an official document unconditionally, notably without having to justify their interest. |
3. Requesting Procedures |
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 | YES | 2 | Article 10 (Access Application) Section 3: "The application must be formulated in a sufficiently accurate manner;" ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 3. Application for Access to Public Documents and Competencies. Article. 7 (Content of the application). Section 2: "It must be sufficiently detailed in order to allow the authority to identify the requested document. The applicant must indicate, to the best of his ability: a. generally available data which clearly identify the document, such as the date of issue, title and reference; b. a specific time frame; c. the authority which issued the document; or d. the subject concerned." | The unique requirement is that the application must be formulated in a sufficiently accurate manner in order to identify the document being sought. |
3. Requesting Procedures |
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 | YES | 2 | Art. 11 (Consultation): "1. Should an application be made for access to official documents which contain personal data, and which the authority is considering granting, it shall consult the person concerned and afford him the opportunity to submit comments within ten days. 2. The authority shall then inform such consulted person of the position it intends to take concerning the application for access. " | |
3. Requesting Procedures |
16 | Public officials are required to 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 | YES | 2 | ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 2 Right of Access to Official Documents. Art. 3 Assistance to the applicant: "1 The authority shall provide information to the applicant about the official documents available and shall assist him through the procedure, particularly if the applicant is disabled. 2 Where official documents are accessible via the Internet or have been published in an official publication of the Federal Government, the authority may confine itself to providing references as to the sources where they may be found. 3 The authority is not required to translate official documents to which access has been granted in application of the Freedom of Information Act." | |
3. Requesting Procedures |
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 | YES | 2 | ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 2 Right of Access to Official Documents. Art. 3 Assistance to the applicant: "1 The authority shall provide information to the applicant about the official documents available and shall assist him through the procedure, particularly if the applicant is disabled. 2 Where official documents are accessible via the Internet or have been published in an official publication of the Federal Government, the authority may confine itself to providing references as to the sources where they may be found. 3 The authority is not required to translate official documents to which access has been granted in application of the Freedom of Information Act." | |
3. Requesting Procedures |
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 | 0 | Not mentioned | |
3. Requesting Procedures |
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 | 0 | Not mentioned | |
3. Requesting Procedures |
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 | NO | 0 | Not specifically mentioned. | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | Article 12 (Decision of the Authority) Section 1: "The authority shall make a decision as soon as possible; no later than 20 days after receipt of the application." | |
3. Requesting Procedures |
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 | Partially | 1 | Article 12 (Decision of the Authority) Section 1: "The authority shall make a decision as soon as possible; no later than 20 days after receipt of the application. <...>" | The extension of time to respond is not later than 20 days. |
3. Requesting Procedures |
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 | YES | 2 | Article 12 (Decision of the Authority) Section 2: "The deadline may, under exceptional circ umstances, be extended by 20 days, should the application for access concern a large number of documents or documents which are complex or difficult to obtain. Should an application concern official documents containing personal information, the deadline shall be extended for the required period." Section 4: "The authority shall inform the applicant, with summary grounds, of any extension of the deadline, limitation or refusal of access. Information concerning the limitation or denial of access, as well as the grounds therefor, shall be conveyed in writing." | The timeline extension will be 20 days. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | ||
3. Requesting Procedures |
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 that 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 | NO | 0 | Article 16.2 If the costs are likely to exceed 100 francs, the authority shall inform the applicant of the expected fee amount. If the applicant does not confirm his application for access within ten days, it shall be deemed to be withdrawn. The authority shall inform the applicant accordingly. | In addition to fees for reproduction, they can charge for extensive searching according to annex 1 of the Freedom of Information Ordinance |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | Partially | 1 | ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 5 Fees. Article. 15 (Waiver or reduction of fees): "1 The authority shall waive fees where the cost of collecting them would exceed the fee amount. Fees of less than 100 francs shall not be charged." | No specific mention about the impecunious requesters. |
3. Requesting Procedures |
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 | 0 | Article 6 (Principle of Freedom of Information). Section 2: "The documents may be inspected in situ or a copy thereof may be requested. The legislation governing copyright is reserved." ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 2 Right of Access to Official Documents. Art. 5 (Provision of copies): "1. On request by the applicant, the authority shall provide a copy of the official document, provided that the production of such copies does not affect the physical integrity thereof. 2 If the document is subject to copyright, the authority shall inform the applicant as to the applicable limitations on its use." | The information that has a copyright will be considered as reserved. |
4. Exceptions & Refusal |
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 | 0 | Article 4 (Reservation of Special Provisions): "Special provisions contained in other Federal Acts are reserved where they: a. declare certain information secret; or b. declare the access to certain information to be subject to requirements derogating from those set out herein; " | |
4. Exceptions & Refusal |
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. | 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 | 8 | Article 3 (Material scope of application) "1. This Act does not apply to: a. access to official documents relating to: 1. civil proceedings; 2. criminal proceedings; 3. international mutual and administrative assistance proceedings; 4. international dispute settlement proceedings; 5. constitutional and administra tive judicial proceedings; or 6. arbitration proceedings; and b. the consultation, by a party, of the case file in first-instance administrative proceedings. 2 Access to official documents containing personal information about the applicant is governed by the Federal Act of 19 June 1992 5 on Data Protection (Data Protection Act)." Article 7 (Exceptions): "1 The right of access shall be limited, deferred or refused if such access to an official document: a. significantly impairs the free opinion-forming and decision-making processes of an authority which is subject to this Act, or of another legislative, administrative or judicial body; b. affects the execution of specific measures taken by an authority in conformity with its objectives; c. is likely to compromise the domestic and international security of Switzerland; d. is likely to affect the interests of Switzerland in matters of foreign policy and international relations; e. is likely to affect relations between the Federal Government and the cantons, or inter-cantonal relations; f. is likely to affect the economic or monetary interests of Switzerland; g. is likely to reveal professional, business or manufacturing secrets; or h. is likely to result in the release of information provided voluntarily by a third party to an authority which undertook to maintain secrecy with regard thereto. 2 The right of access shall be limited, deferred or refused if such access to an official document is likely to prejudice the privacy of a third party, unless exceptionally outweighed by public interest." | The exceptions that falls outside the list are: Relations between the Federal Government and the cantons or inter-cantonal relations; information provided voluntarily by a third party to an authority which undertook to maintain secrecy with regard thereto (2 point loss). |
4. Exceptions & Refusal |
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 | NO | 0 | No harm test listed. | |
4. Exceptions & Refusal |
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 | 1 | Article 7(Exceptions). Section 2: "The right of access shall be limited, deferred or denied, should said access to an official document prejudice the privacy of a third party, unless exceptionally outweighed by public interest." | Limited public interest override that only applies to official document that could prejudice the privacy of a third party. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, 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 | NO | 0 | Not mentioned. | |
4. Exceptions & Refusal |
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 | 2 | Article 11 (Consultation): "1. Should an application be made for access to official documents which contain personal data, and which the authority is considering granting, it shall consult the person concerned and afford him the opportunity to submit comments within ten days. 2. The authority shall then inform such consulted person of the position it intends to take concerning the application for access." Article 13 (Mediation). Section 1: "A request for mediation may be filed by any person: a. whose access to official documents has been limited, deferred or denied; b. whose application was not decided by the authority within the deadline; c. who was consulted pursuant to Art. 11, should t he authority intend granting access contrary to his disapproval. [...]" ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Article. 6 (Evaluation of conflicts of interest between the protection of thirdparty privacy and the public interest): "1. Where it becomes apparent in the evaluation of an application for access that the public interest in obtaining such access would prejudice a third party’s right to the protection of privacy, the competent authority may, by way of an exception, grant access after having weighed up these interests against one another. 2 The public interest in gaining access shall outweigh the right to privacy where, in particular: a. the granting of access to a document serves a specific public interest in obtaining such information, particularly due to important events; b. the granting of access serves to protect a specific public interest, and in particular the protection of public order and security and the protection of public health; or c. the person whose privacy could be prejudiced by access to an official document has a legal or factual relationship with an authority subject to the Freedom of Information Act which affords him significant benefits." | |
4. Exceptions & Refusal |
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 | NO | 0 | Not mentioned. | |
4. Exceptions & Refusal |
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 | YES | 2 | Article 12 (Decision of the Authority). Section 4: "The authority shall inform the applicant, with summary grounds, of any extension of the deadline, limitation or denial of access. Information concerning the limitation or denial of access, as well as the grounds therefore, shall be conveyed in writing." | |
5. Appeals |
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 | NO | 0 | Not mentioned. | |
5. Appeals |
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 | 2 | Article 13 (Mediation): "1. A request for mediation may be filed by any person: a. whose access to official documents has been limited, deferred or refused; b. whose application was not decided by the authority within the deadline; c. who was consulted pursuant to Article 11, should the authority intend granting access contrary to his wishes. 2 The request for mediation must be filed in writing with the Federal Data Protection and Information Commissioner within 20 days of receipt of the decision from the authority or the date of the authority’s failure to comply with the deadline. 3 Should mediation succeed, the matter is deemed to have been settled." | The appeal must be lodged to the Commissioner. It´s called "mediation" and the Federal Data Protection and Information Commissioner shall provide to the parties this proceeding. |
5. Appeals |
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 that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | NO | 0 | Not mentioned. | |
5. Appeals |
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 | YES | 2 | ORDINANCE TO THE FEDERAL ACT ON DATA PROTECCION. Article 30 (Headquarters and legal status). Section 3: "The Commssionaer´s budget is contained in a special section to the Federal Chancellery budget." Art. 31 Relations with other authorities and private individuals: “The Commissioner deals with the Federal Council via the Federal Chancellor. The Federal Chancellor shall pass on any recommendations and reports from the Data Protection Commissioner irrespective of whether he or she concurs with them. The Commissioner passes on the reports intended for the Federal Assembly directly to the Parliamentary Services.†| |
5. Appeals |
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 | 0 | Not mentioned. | |
5. Appeals |
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 | Partially | 1 | Article 20 (Right to Information and Inspection): "1.Within the context of mediation proceedings, the Commissioner shall have access to official documents, even if same are subject to secrecy. 2. The Commissioner and his secretariat shall be subject to official secrecy to the same extent as the authorities whose official documents they inspect or from whom they obtain information." | The independent oversight body have access to official documents which are secret in order to resolve an appeal proceeding. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | Decisions are not binding, the commissioner is only allowed to make recommendations to the parties involved in a proceeding. | |
5. Appeals |
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 | 0 | Article 14 (Recommendation): "Should mediation fail, the Federal Data Protection and Information Commissioner shall provide the participants to the mediation proceedings with a written recommendation within 30 days of receipt of the request for mediation." | The commissioner is allowed to make recommendations but not to take any other remedial measure. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Article 16 (Appeal) : "The appeals procedure are subject to the general provisions found in the relevant legislation governing the federal administration of justice. 2 The appeal instances shall also have access to official documents which are secret." | |
5. Appeals |
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 | 2 | Article 17 (Fees). Section 2: "No fee shall be charged for: b. mediation proceedings (Art. 13);" | External appeal proceedings are free of charge. |
5. Appeals |
46 | The grounds for an external appeal 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 | 2 | Article 13 (Mediation) Section 1: "A request for mediation may be filed by any person: a. whose access to official documents has been limited, deferred or refused; b. whose application was not decided by the authority within the deadline; who was consulted pursuant to Article 11, should the authority intend granting access contrary to his wishes. " | Besides refusals, the appeal can be applied when application was not decided within the deadline. |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | Articles 13 (Mediation). Section 2: " The request for mediation must be filed in writing with the Federal Data Protection and Information Commissioner within 20 days of receipt of the decision from the authority or the date of the authority’s failure to comply with the deadline. " Article 14 (Recommendation): "Should mediation fail, the Federal Data Protection and Information Commissioner shall provide the participants to the mediation proceedings with a written recommendation within 30 days of receipt of the request for mediation." Article 15 (Decision): "Within ten days of receipt of the recommendation, the applicant or the person consulted may request a decision pursuant to Article 5 of the Administrative Procedure Act of 20 December 1968 2 Furthermore, the authority shall hand down a decision, where, contrary to the recommendation, it intends to: a. limit, defer or refuse the right of access to an official document; b. grant the right of access to an official document containing personal information. 3 A decision shall be issued within 20 days of receipt of the recommendation or the request for a decision pursuant to paragraph 1 above." | |
5. Appeals |
48 | In the appeal process, 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 | 0 | Not specifically mentioned. | |
5. Appeals |
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 records management) | 1 for partial, 2 for fully. | 2 | Partially | 1 | Art. 18 Duties and Competencies: “The Federal Data Protection and Information Commissioner (the Commissioner) pursuant to Article 26 of the Data Protection Act shall, in particular, have the fol- lowing duties and competencies under the present Act:a. conducting mediation proceedings (Art. 13) and making a recommendation (Art. 14), should mediation not succeed; b. providing information ex officio,or at the request of individuals or authorities, on the modalities governing access to official documents; c. commenting on draft legislation and measures of the Federal Government which have a fundamental impact on the principle of freedom of information." | The Commissioner is allowed to make recommendations to the parties involved in a appeal proceeding. |
6. Sanctions & Protections |
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 | 0 | Not mentioned. | |
6. Sanctions & Protections |
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 | 0 | Not mentioned. | |
6. Sanctions & Protections |
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 | 0 | Not mentioned. | |
6. Sanctions & Protections |
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 | 0 | Article 7 (Exceptions). Section 1: "The right of access shall be limited, deferred or refused if such access to an official document: [...] h. is likely to result in the release of information provided voluntarily by a third party to an authority which undertook to maintain secrecy with regard thereto. " | No sanctions, and this information will be exempted from the scope of the Act. |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 7. Advisor for the Implementation of the Principle of Freedom of Information. Article 20: "The Federal Office and the departments shall designate at least one advisor for the implementation of the principle of freedom of information. The advisor shall have the following duties: a. advising the administrative units, persons and organisations outside the Federal Administration, subject to the Freedom of Information Act; b. disseminating information and training staff; c. participating in the implementation of legislation on the principle of freedom of information." | The Federal Office and the departments shall designate at least one advisor for the realisation of the principle of freedom of information. |
7. Promotional Measures |
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 | YES | 2 | Article 18 (Duties and Competencies): "The Federal Data Protection and Information Commissioner (the Commissioner) pursuant to Article 26 of the Data Protection Act shall, in particular, have the fol- lowing duties and competencies under the present Act: a. conducting mediation proceedings (Art. 13) and making a recommendation (Art. 14), should mediation not succeed; b. providing information ex officio, or at the request of individuals or authorities, on the modalities governing access to official documents; c. commenting on draft legislation and measures of the Federal Government which have a fundamental impact on the principle of freedom of information." Article 19 (Evaluation). Section 1: "The Commissioner shall review the execution and effectiveness of this Act and, in particular, the costs incurred in its implementation, and shall report on a regular basis to the Federal Council." | |
7. Promotional Measures |
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 | 0 | Not mentioned. | |
7. Promotional Measures |
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 | YES | 2 | Ordinance of 25 November 19984 on the Organisation of the Government and the Administration | The processing of official documents, particularly their registration shall be governed by Article 22 of the Ordinance of 25 November 19984 on the Organisation of the Government and the Administration, as well as by the provisions enacted by the competent department in application of the Federal legislation governing the archiving of documents. |
7. Promotional Measures |
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 | 0 | Not mentioned. | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. | |
7. Promotional Measures |
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 | YES | 2 | ORDINANCE ON FREEDOM OF INFORMATION IN THE ADMINISTRATION. Section 8 Evaluation. Article 21: "Each authority shall inform the Commissioner, on an annual basis, of: a. the number of applications for access filed during the reporting year; b. the number of such applications granted, refused or partly refused; c. the total amount of fees charged for access to public documents sought under the Freedom of Information Act." | |
7. Promotional Measures |
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 | YES | 2 | Article 19 (Evaluation): "The Commissioner shall review the execution and effectiveness of this Act and, in particular, the costs incurred in its implementation, and shall report on a regular basis to the Federal Council. 2 The Commissioner shall submit the first report on the implementation costs of this Act to the Federal Council within three years of its entry into force. 3 The reports of the Commissioner shall be published." |
