06.04.2023 - Using emergency legislation to exclude the Freedom of Information Act

Using emergency legislation to exclude the Freedom of Information Act

06.04.2023 - In the Emergency Ordinance of 16 March 2023 on Additional Liquidity Assistance Loans and the Granting of Federal Default Guarantees for Liquidity Assistance Loans made by the Swiss National Bank to Systemically Important Banks, the Federal Council stipulated, inter alia, that no access to official documents will be granted under the Freedom of Information Act. The exclusion of citizens' rights of access guaranteed by the Freedom of Information Act by way of an emergency ordinance raises fundamental legal issues.

Following the pandemic, during which many decisions were made under emergency legislation, and the "rescue umbrella" for the electricity sector, with the aforementioned ordinance of 16 March 2023 the Federal Council has once again, within a short period of time, decreed that activities which it has delegated to the Administration by means of emergency legislation will not be subject to the Freedom of Information Act, using that same emergency legislation. Both cases may entail the use of billions of francs of taxpayers' money. 

The Federal Council’s approach raises fundamental legal issues: based on the information currently available to the FDPIC, in neither of these cases does the justification provided for enacting emergency legislation based directly on the Federal Constitution in order to support the electricity or financial sectors explain the necessity to exclude by emergency legislation the citizens' right to information about the activities of the Administration based on that emergency legislation. If there is no need to restrict citizens' rights under the Freedom of Information Act by emergency legislation, the question arises as to where the Federal Council derives the right to repeal this federal act by ordinance.

Had the Freedom of Information Act continued to apply, the Federal Administration would have been able in both cases to restrict access to official documents under this Act, citing the protection of public and private interests, or at least to defer such access until the Federal Assembly may decide to exclude administrative transparency through the ordinary legislative procedure, and – if it deemed such exclusion necessary – to anchor it in a formal enactment.

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Last modification 16.05.2023

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