Under the Data Protection Act, personal data is any data that refer to an identified or identifiable natural person.
Official documents containing personal data must, wherever possible, be made anonymous (Art. 9 para. 1 FoIA). Making personal data anonymous means that the document is altered so that information it contains can no longer be related to identified or identifiable persons.
It is generally not necessary to render data anonymous if:
- the person concerned has already agreed to such disclosure or if their agreement can be clearly assumed in the specific circumstances (e.g. if the person has accepted an order from the Administration or if they are mentioned as a member of a committee of experts) or
- the personal data in question has already been made generally accessible by the person concerned.
If it is not possible to make the data anonymous, i.e., if the applicant requests access to the personal data of third parties, the Federal Supreme Court has specified a multi-step procedure. The first step entails a preliminary examination of interests to determine whether disclosure of the document is an option or whether it can be ruled out from the start due to overriding public or private interests. If it can be ruled out from the start, the procedure must be discontinued. If, however, granting access is an option, the third parties concerned must be consulted, that is, they must be given an opportunity to assert their interests. The applicant’s identity must not be revealed to the third parties concerned. Based on the positions that the third parties take, the competing interests must be weighed up to determine whether access should be granted to the personal data in question.
This examination of interests is crucial and involves weighing up the private interest in privacy of the person concerned against the public interest in access.
A higher weighting should be given to private interests based especially on the data in question, the function or positions of the person concerned and the potential consequences of disclosure. The person concerned’s interest in protection will tend to outweigh the interest in disclosure if the information in question consists of sensitive personal data or personality profiles. In any case, personal data must not be disclosed if this would result in overwhelming disadvantages to the person concerned.
Public interest must also be considered, however. As well as a (general) interest in freedom of information in the Administration (Art. 1 FoIA), there may be additional information interests, such as the examples listed in Article 6 paragraph 2 FoIO. Disclosure is conceivable if the documents in question concern the granting of significant financial benefits to individual parties (contracts, subsidies), if holders of permits or concessions are affected, or if the documents are agreements that the state has entered into with private persons (Art. 6 para. 2 let. c FoIO).