Who is responsible for the lack of Freedom of Information (FOI) in 8 of 16 states in Germany?

19. August 2006: This Internet publication is a "hearing": Please send comments to: walter.keim@gmail.com. Have I forgotten somebody on the list below?

The human right of Freedom of Information is found overall in the EU, in Europe, OECD and developed countries all over the world. Germany was in federal agencies one of the last European countries to adopt FOI. In 8 of 16 local Lander FOI is missing, nearly the only exception in Europe. As EU citizen I have this right towards EU institutions, according to the EU Charter of Fundamental Rights (Article 42: Right of access to documents). Why not in Germany? Why is Germany the last major country in Europe to adopt Freedom of Information?

I accuse:

the minister of interior Otto Schily, because he just proposed a draft law in 2001 and did not finish the process because the administration had objections. Freedom of Information is promised since 1998, but no proposal made to the parliament. (Revolt of the red tapes: "Aufstand der Amtsschimmel". See magazine "Zeit": http://www.zeit.de/2002/15/Aufstand_der_Amtsschimmel). Minister of Interior Schily failed to stop the parliament to discuss a draft law 17. December 2004. In the discussion in parliament Schily supported the doubt of the CDU/CSU opposition party. He supported the revolt of bureaucracy (Aufstandes der Amtsschimmel). I have written a letter to Schily on 14. December 2004 and asked, if he can guarantee to always be committed to the human right of Freedom of Information.
The "bananas-minister" for economy Müller because he stopped the coalition parties in 2002, who tried to bring to parliament their own law-proposal: http://www.heise.de/tp/deutsch/special/frei/12689/1.html. This happened because chancellor Schröder obeyed the industry, which did not want freedom of information: http://www.spiegel.de/spiegel/0,1518,200757,00.html. Suggestion for new guidelines.
Chancellor Schröder received the Petition 22. December 2004 from the president of the German parliament, which supported Freedom of Information. An answer should have been given within 6 weeks, but I did not receive it up to now.
The minister of health supported that the law proposal was delayed in May 2005.
The ministers of the German federal cabinet did not propose a law to parliament, saying this was because media and citizens did not show enough interest.
The government claims in its report on ICCPR: CCPR/C/DEU/2002/5 of 4 December 2002 in point 240 that Germany has implemented Freedom of Information according to ICCPR Article 19 (2). But this is wrong because access to public documents is missing.
The federal parliament Bundestag, because no law is passed up to 17. December 2004: Nearly the only Parliament in Europe not able to promote civil rights against bureaucracy "Aufstand der Amtsschimmel". The election 2002 gave a majority to give freedom of information. Will the new government follow up and the parliament now give a law?
The parliament (Landtag) of Baden-Württemberg, because it was too avaricious to give freedom of information: http://wkeim.bplaced.net/files/petition_bw_3.pdf (much administration, not inconsiderable costs, "erheblicher Verwaltungsaufwand, nicht unerhebliche Kosten").
Parliaments and governments because they denied access to documents. Answers to petition complaints never discussed human rights questions. Therefore access to documents was asked for, to study the communication between parliament and ministries. Access was refused:
- Petition Freedom of Information 21. Dec. 2001 to Bundestag: http://wkeim.bplaced.net/petition_ifg.htm#einsicht,
- Petition Freedom of Information 20. Dec. 2001 to Landtag Baden-Württemberg: http://wkeim.bplaced.net/petition_bw.htm#einsicht
- Petition Patients Rights 25. Oct. 2001 to Bundestag: http://wkeim.bplaced.net/petition4.htm#einsicht and
- Petition Patients Rights 25. Oct. 2001 to Landtag Baden-Württemberg: The committee of petitions rejects access. The Ministry of Social Affairs rejects as well.
The parliament, government and administration denies Germans the right to get an answer from the administration. EU Charter of Fundamental Rights gives a right of access to documents (Article 42) and the Right to good administration (Article 41), i. e. answer fairly within a reasonable time. German administration has no obligation to give reasons for its decisions and does not give these rights to its citizens. Suggestions to translate recommendations of the Council of Europe on freedom of information and patients rights have not been answered: http://wkeim.bplaced.net/020106coe.htm and http://wkeim.bplaced.net/filer/011223fischer.htm. No reason is given.
The German parliament and government because laws from the Third Reich are still in force. The allies declared Hitlers dictatorial government illegal, but forgot to abolish the laws Hitler made. Lawyers have a monopoly about legal counselling according to the Law on legal advice ³ (Rechtsberatungsgesetz from 1935). In those days the law was given to exclude Jewish lawyers after they were expelled from the lawyers chamber and prevent that they give free advice. This law is challenged with help of a constitutional complaint (amendment of 5.May.2000) by a judge who was punished, because he gave free legal advice to friends. A Jew working for a volontary organisation for integrating refugees was also punished, because of legal advice to Jewish immigrants. A complaint at the European Court of Human Rights was filed 13. November 2003. Consumers rights are violated.
The constitutional court refused to process the complaints http://wkeim.bplaced.net/v-klage_en.htm and http://wkeim.bplaced.net/files/verfassungsbeschwerde-en.htm ¹ on freedom of information without giving any reasons. The acknowledgement of human rights is only on paper. The acknowledgement of Article 1 (2) GG is not more then lip service (Lippenbekenntnis). Germany was condemned in the case Vogt v. Deutschland ( - 7/1994/454/535 - EuGRZ 1995, 590 - ) to have violated Freedom of opinion by the European Court of Human Rights. But Germany does not respect this and tries to neglect this verdict. International law is not given precedence, as the constitution requires (Article 25 GG). The Fundamental Right of the of the EU Charter, to get an answer giving a reason (Article 41), is removed by the constitutional court even for petitions.
Franz Joseph Stauß-epigone chancellor candidate Stoiber, who is selling himself as "man of the center", without promoting freedom of information, common for Europe: http://wkeim.bplaced.net/020508stoiber.htm. (In Bavaria the administration is not "transparent" but civil servants "are transparent": As only land in Germany the secret service ("Verfassungsschutz") is contacted before civil servants are hired, as decided 1972 as part of the "Radikalenerlass", an act that produced the so-called "berufsverbote".) Germany was condemned in the case Vogt v. Deutschland ( - 7/1994/454/535 - EuGRZ 1995, 590 - ) to take back an offer of this policy by the European Court of Human Rights. But Germany does not respect this and tries to neglect this verdict in other similar cases.
The administrative court (Verwaltungsgericht) did not promote an "area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights", which EU is building up according to Com 2002/0247. The application was turned down violating the ICCPR.
The conservative majority in the Senate (Bundesrat) threatened to stop the law. CSU hillbilly Zeitlmann rejects the law.
The German people, because it does not through off "un-freedom" of information, inherited from the authoritarian state of the past. The acknowledgement of human rights Artikel 1 (2) GG is so far false. Voters (specially in the northern part of Germany) elected September 2002 the coalition parties who promised freedom of information. Will the government and the parliament follow up the Coalition Agreement of 2002?
Summary for Germany: The Legislative, Administrative und Judicative power does not only not promote the human rights¹ (e. g. freedom of information), but pre-democratic laws are put higher than human rights, i. e. human rights are violated. The human right of freedom of information is violated in 8 of 16 states (Bundesländer): a UN human right and basic right of the Charter of the EU. When it comes to Patients rights the EU Charter and the European Charter of Patients Rights is violated. What kind of people are tolerating this, without (nearly) anybody (but me) protesting? Am I the only real human being in Germany?

International participants:

The EU Commission does not promote Freedom of Information in Germany. The EU Commission tolerates member states not respecting human right and fundamental rights of the Charter of the EU.
According to Com 2002/0247 the "Union must build up an EU-wide area of freedom, security and justice" with a "guarantee for the principles of democracy and respect for human rights". But the European Convention did not solve this problem and was not able to give Freedom of Information to German citizens.
The EU Ombudsman http://wkeim.bplaced.net/files/eu-complaint_614_2004_TES.htm suggests to contact the Council of Europe: http://wkeim.bplaced.net/files/eu-040607.pdf. However Freedom of Information is only a fundamental right in EU but has been forgotten in the European Convention of Human Rights: http://wkeim.bplaced.net/020106coe.htm. Recommendations are not followed by Germany.
The Human Rights Committee of the UN does not observe that Germany reports false: http://wkeim.bplaced.net/files/031029EFIL.htm about Freedom of Information. UN does not do the job they are paid for.
I refer to the "European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI))" document A5-0223/2001. Point 3 "(n)otes that it is the particular responsibility of the European Parliament (by virtue of the role conferred on it under the new Article 7(1) of the Treaty of Nice) and of its appropriate committee to ensure (in cooperation with the national parliaments and the parliaments of the candidate countries) that both the EU institutions and the Member States uphold the rights set out in the various Chapters of the Charter" The answer to petition http://wkeim.bplaced.net/petition_eu.htm in 2002 supports fundamental rights, but no action is suggested. In this draft report 2003/2237(INI), 9 March 2004 (Chapter KK), the EU Parliament states: "The European Parliament notes that in Germany there is no law ensuring access to documents of public authorities at the national (i.e. federal) level and that only four of the federal states have enacted such legislation". The EU Parliament could support Freedom of Information and human rights: http://wkeim.bplaced.net/files/petition-hr.htm ⁴. But on 16 January 2006 the Committee of petitions wrote that EU/OSCE human rights principles are not yet covered by EU legislation and did not consider the petition.

Positive contributions

On 02. Mar. 2004 German NGOs publish their own FOI draft law. This causes that the process to work out a law is continued.
On 17. December 2004 the coalition parties suggested their own draft law to parliament (BT Drucksache 15/4493), overcoming the blockade of the bureaucracy and government against the human right of Freedom of Information.
I appreciate that the Committee of Petitions send the Petition of 21. December 2001 on Freedom of Information to the government on 1.12.2004. The vote by coalition parties and FDP (Free Democratic Party) says that the government has to take the petition into account. On 16. December 2004 the federal parliament approved this (BT Drucksache 15/4426).
The president of the German Parliament send the petition on FOI to chancellor Schröder. However no answer was given by chancellor Schröder.
The parliament (Bundestag and Bundesrat) adopted a Freedom of Information law. The hearing of the German parliament 14. March 2005 contributed to improvements, e. g. the law became permanent.
8 of 16 states had adopted FOI laws in 2006.

Questions:

Will the European Court of Human Rights promote Freedom of Information access to documents and und fair trial?: http://wkeim.bplaced.net/files/echr-complaint.htm ⁵

Will the Parliamentary Assemby of Council of Europe promote Freedom of information? ⁶

I appreciate that OSCE concentrates on access to public documents in 2005. Will the monitoring of all OSCE States including Germany: http://wkeim.bplaced.net/files/osce-050106.htm give positive results?

The Council of Europe, does so far not contribute with conventions: http://wkeim.bplaced.net/020106coe.htm only Recommendations (1981) which Germany has ignored. (2002: http://cm.coe.int/stat/E/Public/2002/adopted_texts/recommendations/2002r2.htm). Has the Council of Europe started to work with a convention? Will the Commissioner for Human Rights of the CoE promote Freedom of Information? Here is a Survey on FOI in Europe.

Will the United Nations do, what they promise: To promote freedom of information as human right: http://wkeim.bplaced.net/petition_un.htm? Obviously the Special Rapporteur is committed. But this commitment of is so far not followed up by the Petitions Unit. Will the Human Rights Commissioner of the UN correct this and promote Freedom of Information? Up to now they are not doing the job they are paid for.

Will the international public and community and organisations be silent about this development (ARTICLE19, EFIL)?

The Charter of Fundamental Rights of the EU gives Freedom of Information in Article 42, access to documents in Article 41 (2), the right to complain in Article 43 (Ombudsman) and the right to answers within reasonable time in Article 41 (1). The "European Codex of god Administration" defines latest two months to get an answer (Article 17). As EU-Citizen I would like to ask: How long will the European Parliament (Courrier du Citoyen) look at that the human right of freedom of information and other fundamental rights of the EU Charter are violated. Article 6 1. of OF THE TREATY ON EUROPEAN UNION says:
"The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States." In other countries in Europe this is respected. I become a second class citizen travelling to Germany. The petition is admissible and concludes: Improving the protection of the rights and interests of citizens of the Member States of the Union is listed in Article 2 as an objective of the Union. (see page 7/173 doc. A5-0318/2000). Will the Fundamental Rights Agency (COM(2005)280) improve the situation?

Walter Keim

E-mail: walter.keim@gmail.com
Support freedom of information: http://wkeim.bplaced.net/foi.htm, http://wkeim.bplaced.net/petition_un.htm,
http://wkeim.bplaced.net/v-klage_en.htm
Support patients rights: http://wkeim.bplaced.net/patients.htm#e-mail

Old versions: 0.1, 0.2, 0.3, 0.4, 0.5.

Appendix:

Constitutional Complaint Freedom of Information 18. August 2005: http://wkeim.bplaced.net/files/verfassungsbeschwerde-en.htm
Violations of Human Rights in Germany: http://wkeim.bplaced.net/files/de_human_rights.htm
Law on legal advice from 1935: http://wkeim.bplaced.net/files/de_legal_advice_law_overview.htm
Will the EU Parliament support Freedom of Information and human rights: http://wkeim.bplaced.net/files/petition-hr.htm ?
Will the European Court of Human Rights promote Freedom of Information access to documents and und fair trial?: http://wkeim.bplaced.net/files/echr-complaint.htm
01. Jan. 2006: Will the Parliamentary Assemby of Council of Europe promote Freedom of information? http://wkeim.bplaced.net/files/pace-complaint.htm

Support Freedom of Information for European Institutions: Call for an "Open Europe" (Statewatch)

Freedom of Information came 1766 to Sweden, 1951 to Finland, 1966 to den USA, 1970 to Norway and 1985 to Denmark In 1981 the Council of Europe gave "Recommendation No. R (81) 19" on the access to information held by public authorities. A new Recommendation Rec(2002)2 was adopted 2002. Both EU and nearly all countries in the EU and Europe adopted such laws. However citizen rights vary and there are no minimum standards. In order to keep up with the international development freedom of information should be strengthened in EU member states. Here is a petition to the European Parliament.

Support Freedom of Information, by the following call of Statewatch (click here):
I/We support the call to EU institutions for a democratic and accountable "Open Europe" on access to documents.

Support FOI by E-Mail to the Federal Government in Germany

Freedom of Information came 1951 to Finland, 1766 (1949) to Sweden, 1966 to den USA, 1970 to Norway and 1985 to Denmark. In 1981 the Council of Europe gave "Recommendation No. R (81) 19" on the access to information held by public authorities. Germany is the only country in the EU without such a law. In order to keep up with the international development freedom of information should also be adopted in Germany states.

Support the Freedom of Information laws in the states of: Baden-Württemberg, Bavaria, Hesse, Lower Saxony, Rheinland-Pfalz, Saxony, Saxony-Anhalt, Thuringa with the following E-Mail:
I support the call to the German Federal State (Bundesland) Government for a democratic and accountable Freedom of Information Law on access to public documents.
(This E-Mails is send to the parties governing the state, with a copy to the opposition suggesting the FOI law. You may change the text according to your needs).

Visitor No. since 16. May 2002

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