If applicants do not agree with the treatment of their application for access by the autority, or if third parties, that have been consulted do not agree with the autority's intention to grant access, they may file a request for mediation with the FDPIC.
In a second step – and only if the applicant or a third-party data subject does not agree with the answer from the authority – the FDPIC strives to reach an agreement with those involved. If an agreement is reached, the FDPIC has to issue a recommendation.
Request for mediation
A request for mediation can be submitted to the FDPIC if the authority has concluded its assessment of the application for access and the applicant does not agree with the way in which the matter was handled by the authority.
A request for mediation can also be submitted by a third-party data subject who was consulted by the authority if the authority wishes to grant access against their will. Third-party data subjects are natural persons or legal entities whose personal data is contained in the requested document.
Requests for mediation must be made in writing and are not subject to any other requirements regarding form. They must be submitted within 20 days of receipt of the answer from the authority, or after the stipulated deadline for a response has expired. If the request is submitted too late, the FDPIC will not process the request for mediation.
Mediation is an informal procedure that seeks to help the parties reach a settlement and therefore avoid legal action. It is free of charge.
The Federal Data Protection and Information Commissioner (FDPIC) invites the applicant and the authority to a mediation hearing. If agreement is reached, or the applicant withdraws their request, the matter is deemed to have been settled. If no agreement is reached, the FDPIC issues a recommendation in writing. The FDPIC can also decide to conduct the proceedings exclusively in writing and to issue a recommendation straight away.
The FDPIC's right to information and inspection
In order for the FDPIC to be able to obtain a complete picture and to conduct efficient proceedings, the Freedom of Information Act grants them unlimited access to all official documents related to the request for mediation in question. This also applies to documents that are subject to secrecy.
The FDPIC's power to examine
The FDPIC examines whether the authority has correctly and lawfully applied the definition of an official document and the exceptions and provisions related to the protection of personal data. It also examines whether the chosen solution is appropriate and proportionate to the circumstances of the relevant case in areas where the Freedom of Information Act grants the authority a certain margin of discretion (e.g. in the means of inspection of documents).
The FDPIC only comments on the issue of access to official documents; it does not comment on the completeness or accuracy of the content of a document.
Issuing of recommendation
The recommendation is provided in writing to the applicant, the authority and any third parties involved. It contains an assessment of the legal situation and a recommendation to the parties on how the subject matter should be assessed. The recommendation gives notice of the legal remedies that are available to the parties in case they do not agree with the FDPIC's assessment.
Decision by the authority
In a third step, the competent authority issues a ruling in the following cases:
- If the applicant or any third party do not agree with the recommendation of the Federal Data Protection and Information Commissioner, they may request a ruling from the authority.
- If the authority does not agree with the recommendation of the Federal Data Protection and Information Commissioner, it shall issue a ruling of its own accord.
A ruling must be issued in order for the parties to take legal action and to refer the matter to court.
Lodging an appeal with a court
Appeals against decisions can be lodged with the Federal Administrative Court.
Appeals against the judgments of the Federal Administrative Court can be lodged with the Federal Supreme Court.
Last modification 21.04.2023