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22.09.2015

German Supreme Court: press gets no access to intelligence information about NSA

German courts have ruled on three important cases concerning the freedom of information law. They decided it was fine for journalists to request and publish the Parliament’s research into extra-terrestrial life in space, and other scientific research. But they ruled that lists of companies and citizens in Germany who collaborate with the American security services must remain secret. All these cases were legal fights between journalists on the one hand and public institutions on the other hand.

 

On 20 July 2015 the BVerwG (Supreme Court) decided that journalists have no right to information on the content of the National Security Agency (NSA)-sector list. The NSA sector list contains fixed search details. These search details are allegedly being used by secret services to collect certain information. In this case, the plaintiff is the publisher of a newspaper whose editorial board wanted to get information about the sector list from the German Federal Intelligence Service (Bundesnachrichtendienst, BND). The editors wanted to identify which corporations with headquarters in Germany and German citizens are on the list. In addition they wanted to know about any changes, compared to the previous sector list. But the BND refused to answer any of their questions. Operational aspects of its work would only be told to the Federal government (Bundesregierung) and the committees of the Bundestag which meet in secret, without access for the press and public. The editor emphasised the importance of the freedom of press, which is based in the German constitution.

 Roswell - Alien (Photo: CGP Grey)

illustration: Roswell - Alien (Photo: CGP Grey)

The Supreme Courtdismissed the journalists‘ action and decided that the Federal government had important and legitimate reasons to keep the information secret. According to the Court it is the Federal Intelligence Service’s (BND’s) task to collect information of importance to the foreign and security policies of Germany. Therefore, it is of great importance to the BND to be able to work undercover. Additionally, it is important for the BND to be able to co-operate with other state security agencies without breaking their trust by giving important and secret information to the press.

 

In an earlier verdict on 25 June 2015 the German Supreme Administrative Court (Bundesverwaltungsgericht, BVerwG) in Leipzig decided in favour of two different complainants, that the German Bundestag (German Parliament) has to grant access to full details of its scientific research papers (case no. 7 C1.14 and 7 C2.14).

 

(The scientific service of the German Bundestag is a facility that researches topics that are important to the parliament. )

 

One of the plaintiffs works as a journalist for a national daily newspaper. He tried to get access to copies of documents from the scientific service of the Bundestag. The documents were used by a former German politician for his dissertation. The journalist claimed, he had a right to see the documents because of the German freedom of information law (Informationsfreiheitsgesetz).

 

The second plaintiff also wanted to see documents of the scientific service of the Bundestag. These papers described the search for extra-terrestrial intelligence on behalf of the request of a Member of Parliament.

 

The Bundestag refused both requests and argued that the law about the freedom of information wasn’t applicable. The documents would be part of the parliamentary activity of the members of Parliament and therefore excluded from public access. Two lower courts followed the opinion of the Bundestag and dismissed the actions.

 

However, the judges of the Supreme Court didn’t share the Bundestag’s opinion and decided in favour of the journalists. According to the Supreme Court, as far as expertise and other works of the scientific services are concerned, the Bundestag is an administrative agency which has a duty to give information under the German freedom of information law. The judges pointed out that the obligation to grant access to the documents is not affected by the fact that Members of Parliament use the documents for their parliamentary activity, for which the freedom of information law does not apply.

 

The Supreme Court also pointed out that the copyright of the documents does not preclude the right of the journalists to get access to the information or to make copies of the papers.

 

Press release of the Bundesverwaltungsgericht of 25 June 2015 regarding the case no. 7 C1.14 and 7 C2.14

Decision of the Bundesverwaltungsgericht of 20 July 2015 (case no. 6 VR 1.15)

 

Ingo Beckendorf is scientific researcher at the Institute of European Media Law (EMR) in Saarbrücken/Brüssel





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