Published on 30 June 2026

The FoIA turns 20

For two decades, the principle of freedom of information has promoted transparency with regard to the organisation and actions of the Federal Administration: the Federal Act on Freedom of Information in the Administration (FoIA) was adopted by Parliament on 17 December 2004 and came into force on 1 July 2006. The Act enshrined, at federal level, the right of any person to apply for access to official documents of the Federal Administration without having to provide reasons. Transparency of the Administration’s actions is intended to foster public trust in state institutions and the way they operate. It is also an essential prerequisite for the effective oversight and accountability of public authorities.

By virtue of the principle of freedom of information enshrined in Article 6 FoIA, official documents are presumed to be freely accessible unless that presumption is rebutted. This means that the authority concerned must grant access to official documents unless it can demonstrate that one or more of the statutory exemptions under the FoIA apply. In introducing the principle of freedom of information, the legislator thus brought about a paradigm shift away from the formerly prevailing principle of secrecy. Since 1 July 2006, documents of the Administration have in principle been public, meaning that the authorities can no longer refuse access to official documents by simply invoking official secrecy. Official secrecy is now limited to information that is specifically exempt from access under the FoIA. The FoIA governs access to official documents and involves various parties whose interests may not always align.

Background and context

In the early years, the right of access to official documents was rarely exercised, with the Federal Administration as a whole receiving only a few hundred requests in total. The first evaluation report on the FoIA – published three years after the Act came into force – painted an overall positive picture of progress in implementing the principle of transparency, while also identifying lingering signs of attachment to the principle of secrecy. The report found that the Administration had developed practices that hindered access to documents: some offices required requests to be submitted using a standard form and sent by post, while others refused to provide a list of available documents, making it harder or applicants to narrow down their applications. The necessary cultural shift within the Federal Administration had barely begun.

Over the years, awareness of the principle of freedom of information grew steadily, attracting an ever-growing number of applicants seeking access to official documents. Indeed, the annual number of applications for access has more than tripled over the past ten years. The sharp rise in access requests, combined with the growing complexity of enquiries, presents challenges for the authorities and for the FDPIC in his role as a mediator. Where access requests cut across the remit of several departments, questions of demarcation and jurisdiction inevitably arise.

Over the past 20 years, the Federal Administrative Court and the Federal Supreme Court have ruled on a large number of individual cases and clarified fundamental questions of principle. From the outset, the case law on the principle of freedom of information has set a high bar for authorities or third parties bearing the burden of proof when seeking to restrict access to official documents, and has over time crystallised into a well-established body of case law. The principle of freedom of information is now firmly established, and the paradigm shift brought about by the FoIA has been embraced by the vast majority of the Administration. Implementation remains challenging, not least owing to the steadily growing number of extensive and complex applications for access and requests for mediation.

Mediation procedures

From the outset, observing the statutory deadline has been one of the greatest challenges, with the prescribed timeframe proving consistently difficult to meet. With a view to expediting the mediation procedure and increasing the proportion of amicable resolutions, the FDPIC ran a trial in 2017 in which proceedings were conducted primarily orally. The positive results led to this approach being adopted as standard practice.

In-person mediation sessions have become an established and time-tested practice. Face-to-face contact between applicants and the Administration allows outstanding issues to be resolved directly and promotes mutual understanding. Conflicts can often be traced back to misunderstandings or unclear communication, which can be resolved through dialogue between the parties. Mediation sessions also provide an opportunity to lay the groundwork for a more constructive relationship in the future. In many cases, the session marks the parties’ first face-to-face encounter – particularly as the Federal Administration handles an ever-growing share of its services via digital channels as part of its ongoing digitalisation.

Direct dialogue with the competent authority enables applicants to set out their access interests and information needs more clearly and to gain a better sense of which documents the Administration holds – benefits that a purely written procedure cannot easily replicate. For the authority, the mediation session offers an opportunity to explain any restrictions on access and build understanding for its position. Mediation sessions also offer a chance to narrow down broad requests, thereby reducing the administrative burden on the authority. Direct dialogue also regularly offers an opportunity to resolve any questions of interpretation that may arise.

The consistently high settlement rates of recent years speak for themselves: in 2024, 82 mediation sessions were held, with agreement reached in 76 % of cases. In 2025, the settlement rate stood at 73 %, with 71 agreements reached across 97 sessions. Where mediation is successful, cases are resolved without the need for further administrative or court proceedings, sparing the Administration from having to issue a formal ruling and the courts from having to deal with potential appeals. The effort required to prepare for and participate in a mediation session is considerably lower for all parties than that required for formal administrative proceedings and any subsequent court proceedings – a successful outcome thus relieves both the Administration and the courts of a significant workload.

On a less positive note, the reporting year again saw instances where applicants failed to appear at mediation sessions without excusing themselves or cancelled their participation at short notice. Such behaviour places an unnecessary burden on both the Administration and the FDPIC and ties up mediation slots that could otherwise be used for other proceedings. Especially concerning are cases where written agreements concluded between applicants and the authority’s representatives during the mediation session are subsequently not honoured by the Administration.

Current challenges

When an authority responds to an application for access while leaving key preliminary questions — such as the admissibility of a party’s participation in the proceedings — for the FDPIC to resolve, this places an unnecessary burden on the mediation procedure. Further unnecessary delays occur when authorities raise arguments in the mediation procedure that should have been addressed in an earlier stage of the access procedure:

• Queries regarding the applicant’s entitlement to bring the applications
• Queries regarding the representative’s authority to act
• Queries regarding the legal capacity of legal entities in liquidation etc. to be a party in proceedings

The FDPIC has recently noted a growing number of attempts by applicants to use the FoIA as a means of resolving unrelated legal questions or obtaining decisions from authorities on matters other than access to official documents. The FDPIC attributes this unwelcome trend to the accessibility and cost-free nature of the mediation procedure.

The role of the FDPIC

The FDPIC’s ability to fulfil his mediation mandate under the FoIA depends on the cooperation of all parties, in particular their participation in the mediation session, and on the authority submitting to him the documents that are the subject of the mediation request.

The FDPIC regularly encounters situations in which competent authorities submit the requested documents only after repeated intervention, or fail to do so at all. This occurs despite the FoIA expressly granting the FDPIC access to official documents in the context of the mediation procedure – including documents subject to confidentiality obligations. The FDPIC is bound by the same official secrecy obligations as the authorities whose official documents he examines. Depending on the circumstances, the FDPIC may prefer to consult classified or politically sensitive documents directly on the authority’s premises.

For the FDPIC to mediate credibly between all parties, applicants must be confident that he has examined the requested documents on their behalf. The aim is to be able to assure the applicant that the FDPIC has gained an overview of the scope and content of the official documents and is therefore well placed to make constructive proposals towards an amicable resolution. This may include narrowing the scope of the request or waiving access to certain documents. Regardless of whether the FDPIC takes a position on the applicability of the law or its exemptions, applicants considering concessions or a compromise must be able to rely on the FDPIC having formed a direct and informed view of the nature of the documents in question.

Without access to the documents requested by the applicant, the FDPIC is unable to fulfil his statutory mediation mandate. This leaves the FDPIC unable to assess whether the requested documents are accessible or evaluate any objections raised by the authority. Even in such cases, the FDPIC issues a recommendation so that the applicant retains the right to have their case reviewed by a judicial authority. In such cases, however, the FDPIC can do no more than find that the authority – which bears the burden of proof – has failed to rebut the legal presumption in favour of access, and recommend that access be granted in full. The FDPIC is, however, unable to offer a legal assessment of specific issues, meaning that his recommendation will contain no reasoning in relation to the individual documents at issue. Only limited reference can be made to the FDPIC’s established recommendation practice and relevant case law. This leaves both the applicant and the courts without a substantive assessment from the FDPIC to guide the proceedings that follow.

The FDPIC also notes with concern a growing tendency – on the part of both authorities and applicants (or their legal representatives) – to submit formalistic procedural motions that run counter to the largely informal and expeditious nature of the mediation procedure and, being manifestly without merit, serve only to create unnecessary work and delays to the detriment of applicants. Such submissions range from lengthy elaborations on provisions of the Administrative Procedure Act – which has no bearing on the mediation procedure – through fanciful legal constructions seeking to deny the applicability of the FoIA despite contrary precedent, to patronising assertions that the FDPIC must justify his access to official documents.

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The FoIA in practice

• Since 1 July 2006, the FDPIC has published more than 570 recommendations on the application of the FoIA on his website.
• The Federal Administrative Court has handed down 139 judgments.
• The Federal Supreme Court has handed down 38 judgments on the FoIA.

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Restrictions on the freedom of information

The Freedom of Information Act of 17 December 2004 is founded on the legislative policy goal of establishing transparency as the norm within the Administration. Only the Swiss National Bank (SNB) and the Swiss Financial Market Supervisory Authority (FINMA) were originally excluded from the scope of the Act by the legislator (Art. 2 para. 2 FoIA).

In recent years, the FDPIC has seen a steady increase in consultations by federal offices on new or partially revised federal legislation aimed at exempting certain areas of the Administration’s activity or specific categories of documents from the scope of the FoIA. Restricting the scope of the Freedom of Information Act in this way renders the Act inapplicable in the areas concerned. Such piecemeal reversal of the paradigm shift represents a creeping return to the primacy of official secrecy. Since the FoIA came into force, the Federal Council and Parliament have introduced 13 special exemptions, with at least 11 more currently in the pipeline. Furthermore, recently, the FDPIC was on occasion not consulted by the Administration in internal consultations on legislative proposals with implications for the principle of freedom of information. This is all the more notable given that the legislator has expressly tasked the FDPIC with commenting on draft federal legislation and measures that materially affect the principle of freedom of information.

A notable trend is the exclusion of ever-broader areas of the Administration’s activities from the scope of the Freedom of Information Act – a tendency most evident among authorities with supervisory, inspection, and oversight functions, bodies deployed by the legislator in particularly sensitive areas of state activity where significant financial, security, or health-related risks are at stake. At the same time, supervisory and oversight authorities enjoy broad discretionary powers in carrying out their responsibilities, which in turn carries the risk that their supervisory and control activities may not be applied consistently or in accordance with the principle of equal treatment. In order to examine the criteria by which supervisory authorities in particular exercise their discretion, applicants may submit an application for access to scrutinise their supervisory and control practices on behalf of the general public. The principle of freedom of information thus plays a vital role in ensuring effective oversight of state supervisory, inspection and audit authorities.

In office consultations, the Administration consistently advances the same argument to justify curtailing public oversight of supervisory authorities, namely that exemption from the Act is necessary to ensure that supervised companies and individuals continue to provide the authority with all information required for the effective discharge of its supervisory functions. This, it is argued, can only be guaranteed by exempting the authority from the FoIA. If those subject to supervision were to fear that information they provided might be disclosed under the FoIA, they might be inclined to withhold it. The FDPIC consistently counters this argument in these consultations by pointing out that statutory disclosure and reporting obligations must be observed and enforced in a state governed by the rule of law and that supervisory authorities frequently have recourse to sanctions where those subject to supervision fail to fulfil their duty to cooperate.

The FDPIC, who is himself subject to the Freedom of Information Act, continues to emphasise that the Act’s existing exemptions already provide sufficient scope to adequately protect individuals and safeguard confidentiality interests including in the context of supervisory activities and official control measures. The Federal Council reached the same conclusion in its report of 9 December 2022 in which it sets out the possibilities and limits of enshrining a culture of learning from mistakes in law. The FDPIC is well aware of the heightened protection that certain sensitive documents may warrant, including certain sections of audit and inspection reports, and has consistently taken this into account – as evidenced by numerous past recommendations – thereby giving due consideration to legitimate confidentiality interests.

If the paradigm shift set in motion by the legislator in 2004 is to be preserved, the exemptions already planned and any future departures from the FoIA must be assessed with care – a point the Federal Council also makes in its report. The FDPIC will continue to firmly oppose, in the context of office consultations, any attempt by lead federal bodies to use legislative projects as a means of exempting their own activities from the FoIA. In cases where he is unable to sway the opinion of the relevant offices and departments, the FDPIC consistently insists that any remaining differences of opinion be documented in the submissions to the Federal Council and in the legislative dispatches to Parliament. Regrettably, there were again several instances in the year under review where the lead office refused to document the remaining differences, forcing the FDPIC to request the necessary corrections at the joint reporting procedure stage.

Equally significant are the provisions on FoIA exemptions introduced in emergency legislation. Following the pandemic phase dominated by emergency law decisions and the financial backstop for the electricity industry, the Federal Council once again used emergency law – this time in the context of the emergency ordinance issued to facilitate the Credit Suisse takeover  – to delegate activities to its Administration and exempt those same activities from the FoIA. In the FDPIC’s view, the justification for enacting emergency legislation to support the electricity or financial sector provides no grounds for using that same legislation to strip citizens of their right to scrutinise how the Administration exercises its emergency powers – especially when such measures can involve the commitment of billions of Swiss francs of public money. The Parliamentary Investigation Committee examining the conduct of the federal authorities in the context of the Credit Suisse crisis likewise called on the Federal Council, in its report, to observe the principle of freedom of information within the Administration and to apply the FoIA also when enacting emergency legislation.

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Of particular concern to the FDPIC are FoIA restrictions that are introduced without Parliament having the opportunity to deliberate on them. A case in point is the Federal Council’s decision, based on Article 2 paragraph 3 FoIA, to exclude the Swiss Transportation Safety Investigation Board (STSB) from the scope of the Act. In the FDPIC’s view, the key problem here is that the Administration is effectively excluding itself from the principle of transparency within the Administration, pre-empting an upcoming decision by the legislator, namely the introduction of an STSB exemption from the FoIA as part of the partial revision of the Aviation Act.

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Outlook

In light of the steady increase in applications for access in recent years and the many media reports made possible by such applications, demand from both the media and the general public for transparency and accountability of the Administration’s actions can be expected to continue to grow. This will, in all likelihood, be accompanied by a further increase in mediation requests. Since 2020, the FDPIC has been unable to meet the statutory deadline for completion of mediation proceedings in more than half of all cases. In 2025, the FDPIC requested three additional posts from the Swiss Parliament to allow mediation proceedings to be completed within the statutory timeframe. The additional staffing was intended to reduce the backlog and keep pace with the rising number of mediation requests. The National Council rejected the request in the 2025 winter session by 97 votes to 92, with 3 abstentions.

The authorities have only limited influence over the number of cases they receive, and the workload arising from FoIA proceedings is therefore largely driven by external factors. It is all the more essential, then, that the authorities make the most of the flexibility available to them. For instance, information on significant matters can be proactively published in a form that makes the decision-making process transparent, rather than simply publishing a final report. In his dual role as mediator in freedom of information disputes and data protection supervisory authority, the FDPIC himself handles applications for access and is well aware of the challenges these can present – particularly in the case of complex and extensive applications.

Key figures on the FoIA

• 17 December 2004: Parliament passes the Freedom of Information Act (FoIA)
• 1 July 2006: FoIA enters into force
• 1 July 2006: The Federal Data Protection Commissioner (FDPCO) becomes the Federal Data Protection and Information Commissioner (FDPIC)
• 22 September 2006: First recommendation by the FDPIC
• 25 May 2007: First court ruling on the FoIA (Federal Supreme Court)
• 24 April 2009: Report on the first evaluation of the FoIA
• 15 September 2009: First ruling by the Federal Administrative Court
• 1 July 2011: Obligation to participate in mediation proceedings is enshrined in law
• 9 December 2014: Report on the second evaluation of the FoIA
• 1 April 2015: Federal Council decides to establish the IDAG Interdepartmental Working Group “Transparency”
• 27 May 2015: 500th mediation request
• 2 September 2016: Event marking the 10th anniversary of the FoIA
• 2017 Pilot phase: Principle of oral mediation proceedings
• 19 March 2020: 1 000th mediation request
• 1 June 2023: FDPIC publishes overview of special statutory reservations under Art. 4 of the FoIA
• 1 November 2023: Introduction of the principle of fee exemption
• 18 January 2024: 1500th mediation request

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This text (including the statistics) was published in the 33^rd Annual Report for 2025/2026: