If you you’re looking for information from the government, Austria is not the best place in the world to go. The country traditionally has a weak implementation of freedom of information. The new government coalition between the centre-right Austrian People’s Party (ÖVP) and the Green party under ÖVP Chancellor Sebastian Kurz promised to change that.
The first draft of a freedom of information act was supposed to be introduced in July. It’s now November. Activists like Mathias Huter are still waiting, but remain cautiously optimistic.
“Austria is the last democracy in Europe that does not give citizens and journalists the right to view official documents”, Huter, chairman of the NGO “Forum Informationsfreiheit” (FOI), said. “We have been promised changes since 2013, but nothing has happened.“
The COVID-19 crisis has served to once again highlight problems with obtaining official information in Austria. Authorities on federal and state levels have used well-known loopholes to bypass the public’s right to information. For example, the federal government as well as Vienna’s state government outsourced part of the administration of their stimulus packages to state-owned corporations, which have weaker parliamentary oversight and are harder for journalists to get information from. Similarly, when the opposition social democrats asked the minister of finance which municipalities got money from an corona aid package, the minister refused, citing privacy concerns.
“(Green Party) Vice-Chancellor Werner Kogler once said he wants to bring Austria into the Champions League of transparency. That’s a long way off. At the moment it’s more like we’re playing in the school league”, Jakob Winter, an investigative journalist at the weekly magazine Profil, said. Winter published extensive reports on Ischgl, the Tyrolean ski town where thousands of tourists from across Europe got infected. “Not one piece of information that we published on Ischgl came from the authorities, even if we asked for it several times. The authorities even first denied things that later turned out to be true and only then acknowledged the facts.”
In Austria, you get your information if you know somebody, Winter said. “You have to have a whistleblower. Either someone has an interest in talking to you, or you have to convince people to take a personal risk. Otherwise you will meet a dead end soon.”
Austria does have a limited version of a freedom of information act, the “Auskunftspflichtsgesetz“ from 1987. But is has huge limitations, as Huter explained. “The principles of freedom of information and official secrecy are both part of the constitution. On one hand, authorities are required to give information if there are no reasons not to do so. On the other hand, there are broad requirements to keep secrets and severe punishment for disregarding these rules. These are incentives for authorities to refuse requests for information out of precaution.”
There are practical limitations as well. “Authorities are required to answer a request for information within eight weeks. That’s just not practical for journalists”, Huter said. If your request for information is refused, you can request a legal notification (a “Bescheid”), which can take up to six months to get. You need this notification to be able to go to court. In the end it can take up to two years to get the information you desire.”
Jakob Winter agreed. “In Austria, transparency is provided when the matter doesn’t interest anybody”, he said. “If I had chosen this path (for requesting information) when reporting on Ischgl, I probably would have had the information in 2021 or 2022.” Winter offered another example from his work: For a year now he’s been trying to find out which ad agencies were awarded public contracts by different ministries of the state of Upper Austria. The request was refused several times on the grounds that it would harm the commercial interests of the agencies. Winter saw this justification as absurd, especially because such information is given at the federal level on a regular basis. He now has requested the necessary legal notification (the “Bescheid”) for the first time in his career.
The government has promised to fix these problems. In July, Minister for Constitutional Affairs Karoline Edtstadler (ÖVP) announced that a freedom of information act would be proposed soon. For its part, the Green Party had made an election pledge around the issue. Experts are confident that Austria will get a new freedom of information law. But as Huter explained, the devil is likely to be in the details.
Forum Informationsfreiheit has developed requirements for the law to be efficient. First of all, it has to include all public branches; not only state or federal authorities, but also things like universities or state-owned companies. Secondly, the response periods should be much shorter. Forum Informationsfreiheit proposes a period of two weeks (in Estonia it’s five working days, while EU institutions are required to answer a request in 15 working days). Thirdly, there should be an obligation not only to answer requests, but also to actively publish certain types of information like public contracts or state-financed studies.
It’s also important how the word “information” is defined in the law and how wide the obligation to share is. In Austria, currently only information that is “veraktet“ (i.e., officially filed as part of a public document) falls under the law. It’s also sufficient to give a short summary rather than provide comprehensive information. Finally, Forum Informationsfreiheit suggests establishing an independent public agency that can advise public authorities on providing information and citizens and journalists on seeking it, so that the freedom of information act can be implemented in practice.
“In public debate, people often focus on which exceptions from these rules should apply”, Huter said. “We’re not against exceptions, but they should be well-argued.”. At the moment it’s often enough to give broad reasons like “national security” to deny information. Two weeks ago, the Department of Interior announced an report about possible mistakes by police and intelligence agencies in advance of the Vienna terror attack. Huge parts of the report will not be public.
Forum Informationsfreiheit proposes a two-part test for possible exceptions: First the “harm test“ (what’s the specific harm in providing this information, even if it concerns national security?), followed by the “public interest test“ (is there a public interest bigger than the potential damage?). There has to be a trade-off, Huter said. “These suggestions are not utopian. These are widely accepted international standards.“
It remains to be seen whether the coronavirus crisis – and the millions of euros spent combating it – will help give the final push for the long-awaited breakthrough in freedom of information in Austria.
- Click here to read more from IPI’s new reporting series Media Freedom in Europe in the Shadow of Covid