Requests for access
According to the figures that have been communicated to us, the Federal authorities received a total of 575 requests for information (582 if we include the requests submitted to the Federal Public Prosecutor's Office and to the parliamentary services, cf. Section 2.1.2 f). That is the highest number recorded since the Freedom of Information Act was adopted in 2006. The authorities granted full access in 297 cases, and partial access in 124 cases. On the other hand, access was refused in 122 cases. Moreover, 15 requests were withdrawn and 17 were still pending at the end of 2014.
Federal departments (ministries) and offices
In view of the total number of applications (575) and the way in which the authorities have handled them, we see that the situation has been relatively stable over the last few years. It can therefore be assumed that the Freedom of Information Act (FoIA) has established itself as a useful and effective instrument for allowing individuals and journalists to obtain information. It is to be hoped, nevertheless, that the FoIA will become better known and better utilised in the future.
The Federal Office for Migration - which was renamed State Secretariat for Migration on 1 January 2015 - received the most requests (33). It was followed by the Federal Office of Public Health (32), the Federal Office for the Environment (31), the Swiss Federal Audit Office (28) and the Federal Office for Agriculture (25). The three departments (ministries) that received the most requests were the Federal Department of the Environment, Transport, Energy and Communications (106), the Federal Department of Foreign Affairs (101) and the Federal Department of Home Affairs (95). The Federal Department of Foreign Affairs acted the most transparently, since of the 101 requests it received, 87 were granted in full, 6 were partially granted, and only 8 were rejected. 16 of the 71 federal authorities reported that they had received no requests at all in 2014. The FDPIC himself received nine requests during the year under review, eight of which were granted and one was partially granted.
Regarding the fees charged for access to public documents, the total amount that was invoiced during the year under review was extremely modest and totalled 2,600 Swiss francs. Since the entire amount was attributable to 9 of the 575 reported cases, and one single application accounted for 1000 Swiss francs, the amounts that were charged can been deemed negligible. Furthermore, a survey of all the fees charged for access to official documents since the FOA was adopted in 2006 shows that fees were charged for less than 3% of all the applications reported to the FDPIC.
In the light of these figures, the FDPIC does not understand why the federal administration wishes to cling to the regulations and directives of the General Secretaries' Conference, even though no fees were charged for 97% of all applications, and many administrative bodies have announced as part of the evaluation of the FoIA that they did not intend to charge any fees in the future (see Section 2.4.1 of the current report). This has prompted the FDPIC to seek a revision of the rules on fees so as to bring them into line with current practice. The proposal he is putting forward is that the non-chargeable amount be increased significantly from 100 to 750 Swiss francs or that access to official documents be declared free of charge.
As far as the amount of time required to process the applications is concerned, the FDPIC once again pointed out that the authorities are not required to keep detailed records, and that furthermore there are no standard guidelines that are applicable across the board to the entire federal administration. As a result, the figures provided to the FDPIC on a voluntary basis should be treated with caution. It would appear, however, that in spite of the increase in the number of applications received, the amount of time required to process applications would appear to have decreased by a further 20 per cent (815 hours in 2010; 1519 hours in 2011; 2155 hours in 2012; 1707 hours in 2013; 1642 hours in 2014). By contrast, the amount of time spent on mediation proceedings went up from 778 hours in 2013 to 1436 hours in 2014, representing an increase of approximately 85 per cent.
The Parliamentary services reported that they had received a single request in 2014. In the case in question, the applicant's request for access to documents was refused.
The Office of the Attorney General
The Office of the Attorney General informed us that it had received six requests for access in 2014: five were granted in full, and one was refused.
Requests for mediation
In 2014, the FDPIC received 90 requests for mediation, corresponding to a substantial 18% increase over the previous year (76 were received in 2013). In contrast with the previous year, most of the requests submitted in 2014 came from representatives of the media (44), followed by private individuals (19).
Based on these figures, we can make the following comments:
In 246 requests for access to official documents, the federal administration refused access totally (122 cases), or partially (124). These figures must be compared with the 90 requests for mediation which were received by the FDPIC. During the year under review, a request for mediation was filed in more than 36% of all cases where access had been refused totally or partially.
85 requests for mediation were brought to a conclusion in 2014. Of these, 35 requests were submitted during the year under review, 25 had been submitted in 2013, and a further 25 had been submitted in 2012. In 15 cases, a settlement was reached that was acceptable to both sides. Nine cases involved mediation in the true sense of the term, and for the remaining six cases, mediation was brought to a conclusion thanks to the intervention of the FDPIC. In two cases, access was granted once mediation proceedings had been initiated. All in all, the FDPIC issued 49 recommendations involving cases where it was clear from the outset that an amicable settlement was either impossible or unlikely to succeed. These 49 recommendations allowed us to settle 55 requests for mediation. One request was withdrawn and one was closed because the applicant did not attend the mediation proceedings. In seven cases, the Freedom of Information Act was deemed not to apply. In four cases, the request for mediation had not been submitted within the prescribed period.
During the year under review, more mediation proceedings were brought to a conclusion than ever before. One of the reasons for this is that, for the very first time, the FDPIC was able to recruit two interns. However, in view of the serious backlog of cases, applicants have had to wait longer than the 30 days stipulated in the law before mediation proceedings can get underway.
All the recommendations made in 2014 can be found on the FDPIC's website. Principle of Freedom of Information - Recommendations).
Consultations between the federal offices and agencies and other positions taken by the FDPIC
Introduction of the new OECD standard for automatic exchange of financial information in tax matters
The FDPIC participated in consultations between the federal offices and agencies on the international exchange of information in tax matters. He set out his position on the new provisions of the Tax Administrative Assistance Act as well as on the draft law on the automatic exchange of information in tax matters (AIA).
Both draft bills contain a non-disclosure provision with a similar scope. The FPDIC pointed out that the provision in question was simply a copy of the non-disclosure obligation to which all federal employees are bound (professional, business and administrative secrecy). He pointed out that with the entry into force of the Freedom of Information Act, official secrecy requirements have been indirectly redefined. The only information that is still subject to the obligation of professional secrecy is information that falls outside the scope of the Freedom of Information Act, which has been declared secret by a special provision in the law or which is exempted from the scope of the FoIA. Consequently, the provision that is currently being proposed cannot further extend the non-disclosure obligation.
The possibility of granting an applicant access to official documents is determined exclusively on the basis of the provisions set out in the FoIA (in particular Article 3 ff.). Thus the exemption clause (which applies, for example, to trade secrets or the economic, financial or monetary interests of Switzerland), as well as the provisions relating to the protection of personal data, offer sufficient grounds for the authorities to refuse, limit or postpone access to official documents that genuinely need to be protected. By the same token, the international exchange of information in tax matters and its implementation at the national level may also fall within the scope of the exemption clause under the FoIA, since the latter requires that account be taken of the specific circumstances when particularly sensitive data are involved. The FDPIC has therefore asked that the last sentence in the paragraph which says that requests for access to official documents will be rejected should simply be deleted.
The two draft bills concerning the publication of statistics for the peer review of the Global Forum for Transparency and Exchange of Information for Tax Purposes also include provisions in substantially identical terms. According to these provisions, there should be no right of access to any information that goes beyond what is published in the statistics. Here, too, the FDPIC asked that the refusal to grant access should be removed from the text. In support of his position, he referred to the scope of the FoIA which is not applicable to cases involving international legal and administrative assistance, as well as to the exemption clauses and the provisions covering the protection of personal data and statistical confidentiality.