Creation of Transparency Act (DE0044)

What is the public problem that the commitment will address? Access to official information and public records is possible through many channels. The legal preconditions for that access, however, are enshrined in various laws. The following are unclear: conditions of access, permissible reasons for refusals and exceptions, formats to be used, obligations on providers to prepare files, possibilities for reuse or searchability tools. Elements of them overlap; some are contradictory. Publication practice to date has been mixed and is not yet entirely consistent, active and structured. The information and data that are made public could be made easier to find. In some areas, the rules for reuse are unclear.

What is the commitment? The Federal Government will introduce a bill which refines the legal basis for access to information and data and shepherd it through Parliament. It is examining to what extent existing freedom of information laws can be amalgamated and unified. The intention is also to improve the substantive criteria for granting access. For certain categories of information and data, an obligation to publish proactively is to be created. A centralised transparency platform is to ensure that, once published, information and data can be found. The law will establish a legal entitlement to open data.

How will the commitment contribute to solving the public problem? The Transparency Act will create a cohesive legal framework governing access to and reuse of official information and data. This will result in legal certainty and clarity and will improve the availability of data. Expanded publication obligations and access rights will mean more information and data available to the individual and to the public at large. The obligation to publish proactively and the legal entitlement of the individual to open data will contribute to more effective accessing practice. A centralised transparency platform will make things easier to find. Freedom of information and open data will be brought together. The right of the individual to access information, formerly vouchsafed through freedom of information, will be brought closer to the legal regime governing open data by the obligation to publish proactively; the obligation to make public records accessible as open data, formerly enshrined in generally applicable law, will come into closer alignment with freedom of information as a result of the legal entitlement of the individual. This closer alignment will serve to better satisfy the demand for information from policymakers, industry, academia and society, to the benefit of the data economy as a whole.

Why is this commitment relevant to OGP values? In creating the Transparency Act, the Federal Government is making great strides in the direc- tion of openness and transparency. The legally enshrined routes for accessing information are to be imbued with a new quality, improve cooperation within the government, foster oversight of administration and government, and enhance people’s options for participating in the political process. The resultant availability of data for business, researchers, civil society and the state will serve the common good.

Additional information: Objectives from the coalition agreement between the SPD, Alliance 90/The Greens and the FDP for the 20th legislative term

Milestone activity with a verifiable deliverable | Start date - Implementation by

Government bill | End of 2024

Entry into force of the Act

Action Plan Review

Commitment 1. Transparency Act

Federal Ministry of the Interior and Community (BMI)

For a complete description, see Commitment 1 in Germany’s 2023–2025 national action plan: https://www.opengovpartnership.org/wp-content/uploads/2023/08/Germany_Action-Plan_2023-2025_June_EN.pdf.

Context and objectives

With this commitment, the federal administration aims to unify and advance their access to information regime under a Federal Transparency Act. The commitment is a priority of the government coalition agreement. [1] Civil society has lobbied for stronger federal transparency legislation for years. In 2022, a coalition of transparency NGOs presented the government with a draft version of a transparency bill. [2] Two civil society priorities are included in the proposed Federal Transparency Act: proactive duties to publish government information and a legal entitlement to open data.

Germany scores poorly on access to information in comparison to other countries. In the Right to Information Index of the Centre for Law and Democracy, Germany ranks 127^th of 139 countries, scoring 54 out of 150 points. [3] This ranking assesses the 2006 federal Freedom of Information (FOI) Law (“Informationsfreiheitsgesetz“), [4] and criticized it for insufficient oversight and a clear definition of information request procedure as well as excessive exceptions (though this rating assesses only the law and not its implementation). [5] Administrations can also charge fees for information disclosure and often redact relevant information through extensive and unclear exceptions. In addition, the administration has in several cases sought to limit the disclosure of documents and only complied after (the threat of) legal procedures. [6]

Since the FOI Law entered into force in 2006, only minor changes have been made to the fee structure. [7] An evaluation of the law was commissioned in 2012, but its recommendations have not been implemented. [8] To simplify information request procedure, civil society launched the “FragDenStaat” platform to send FOI requests and make the disclosed information publicly accessible. [9] A range of other laws for accessing federal government information also apply. For example, a ratified EU legislation governs the disclosure of environmental, geospatial, and consumer information data as well as the use of open government data. [10] At the state level, many Länder have passed their own FOI Laws, although they differ significantly. [11] Hamburg was the first federal state to pass a transparency law in 2012 in response to a citizens’ initiative. Important innovations exist in the Hamburg law, such as extensive proactive publishing duties and stronger oversight, which a coalition of transparency NGOs used as a point of reference when preparing their draft version of the Federal Transparency Act. [12]

Potential for results: Substantial

This commitment has substantial potential for results in advancing access to information at the federal level in Germany. The fragmentation of access to information under a range of legal acts and the complexity of data laws at the EU, federal and Länder levels has created a complicated structure that is difficult for citizens to navigate. If adopted, the Federal Transparency Act would integrate the diverse and complex legal structure at the federal level into a coherent piece of legislation by mandating proactive publishing duties and establishing a legal entitlement to open data. The promised changes not only advance the ability of citizens to understand their government but could also lead to strong follow-up commitments to make information more accessible for citizens, improve the usability of information for government services, and strengthen the digitalization of public administration.

The Federal Transparency Act will create strong publishing duties for the government. Most transparency laws establish a dual structure for access to information. A set of predefined information is published proactively, while other information can still be requested under a procedure like that under the current FOI Law. Proactive publication makes it significantly easier for citizens to access information. A range of documents and data sets will be accessible in a central transparency portal without the need to request it. Evidence shows that there is significant interest in the information held by the federal administration, with around 14 thousand FOI requests per year at the federal level. [13] Proactive publication could lower the administrative burden by significantly lowering the volume of requests.

The second key element is the legal entitlement to open data. Currently, the Open Data Law (§12a EGovG) mandates the federal administration to publish their datasets as open data, though it explicitly rejects a legal entitlement. As a result, open data in Germany is not legally enforceable and its implementation has lagged. [14] A legal entitlement could ensure the effective implementation of existing legislation and advance open data for public monitoring and reuse. Beyond this, it could play a significant role in furthering the digitalization of public administration, as highlighted by a Wikimedia representative. [15] Currently, the publication of open government data often requires additional effort, for example in compliance with special legislation such as the high-value data sets published under Directive (EU) 2019/1024. [16] Additional pressure from a legally enforceable clause on open data could incentivize administrations to adopt efficient data practices, including for internal use. Open data, conceived this way, is not merely an end, but the side product of effective digital government that could be shared with ease. [17] The potential new pathways to a more digital government are especially relevant, given that Germany continues to perform below the EU average on digital government indicators. [18]

Opportunities, challenges, and recommendations during implementation

The Federal Transparency Act could significantly improve the accessibility of government information, provide legal clarity, and simplify administrative procedures. It could also send a positive signal to local administrations for more transparency. Strong transparency legislation is not a popular topic for the administration and will require strong political backing to be effective. A study by Transparency International finds that strong political support, as well as independent oversight and clear legal structures are key conditions of an effective transparency act. [19] An outline of the Federal Transparency Act was supposed to be published at the end of 2022, [20] but the BMI now aims to publish the draft law by the end of 2024. Repeated delays, lack of communication from the BMI, and absence of milestones in this commitment have generated concerns among Open Government Network members that the law will not pass during this legislature or fail to meet expectations. To address this, the IRM recommends the following: