On 31 January 2024, the Austrian Parliament passed the new Freedom of Information Act ("Informationsfreiheitsgesetz“; “IFG") and thereby initiated the end of the culture of official secrecy. Specifically, the IFG grants every natural and legal person the right to access information held by public entities and certain corporate information. The law enters into force in September 2025. The IFG also obliges public entities to proactively publish information of general interest. Does the IFG really constitute the promised "transparency revolution"?

The proactive duty to provide information: freedom of information instead of official secrecy

The IFG provides for an obligation to proactively provide information for administrative bodies and other state institutions. Specifically, they are obliged (in principle) to publish "information of general interest" - i.e. information that concerns or is relevant to a general group of people, such as reports, statistics, studies, expert opinions and contracts. Publication must take place as soon as possible – it may be concealed only based on legitimate reasons which are detailed in the law – via a central, generally accessible and electronic information register (Open Data Austria (www.data.gv.at). However, if – contrary to the legal obligation – the information is not published proactively by the entity obliged to provide information, the law does not stipulate any sanctions; this means, that the public may never find out what information is available.

Municipalities (Gemeinden) with fewer than 5,000 inhabitants and associations of municipalities (Gemeindeverbände) in which municipalities with a total of fewer than 5,000 inhabitants are grouped together are exempted from the proactive obligation to provide information - that is 1,834 out of 2,093 municipalities in Austria ("Die Einwohnerstruktur der Österreichischen Gemeinden", Österreichischer Gemeindebund as of February 2023, mwN). This means that the majority of municipalities are not obliged to proactively publish information of general interest. Thus, the objective of the obligation of providing information of general interest can be critically questioned. On one hand, this obligation does not apply to 1,834 of 2,093 municipalities and on the other hand, if an entity does not proactively provide the information even though it is obliged to do so, there are no sanctions stipulated in the law. 

The individual's request for information: Right of access to information

In addition to the proactive publication obligation, information as defined in Section 2 para 1 IFG must also be made available to the individual upon request within four weeks, whereas an informal request for information is considered sufficient; this also applies to municipalities with fewer than 5,000 inhabitants. If, among other things, the provision of information involves a disproportionate effort for the entity (a lack or scarcity of resources does not automatically justify the exemption from the obligation), the entity may refuse access to the information in accordance with Section 9 para 3 IFG.

Exemptions to the publication obligation: Confidentiality

Section 6 para 1 IFA specifies – in some cases rather broadly – exemptions to the general obligation to provide information (grounds for non-disclosure): If certain protected interests are to be safeguarded and nothing to the contrary is stipulated by law, the entity obliged to provide information may refuse to do so, provided that confidentiality is necessary and proportionate. The exemptions in Section 6 para 1 IFG apply to the proactive obligation to provide information and if individuals request information. The exemptions range from the interest of national security to the interest of the unimpaired preparation of a decision to the defence against significant economic or financial damage to the organs, regional authorities or other self-governing bodies.

Information may be concealed only based on legitimate reasons and thus a balance must be met between the individual's right to access of information and the entities’ interest in confidentiality. According to the explanatory notes, the activities of "social watchdogs" (non-governmental organisations and journalists who need the information to conduct a public debate) must be considered when weighing up these interests.

Refusal to provide information - what now?

If the entity obliged to provide information refuses access to the requested information, the individual seeking the information shall request in writing a decision to be issued on the refusal of access (Section 11 IFG). The decision can be challenged before the competent administrative court or – in the event of an alleged violation of fundamental rights – before the Constitutional Court.

Special provisions for private parties obliged to provide information

Foundations, funds, institutions and companies that are subject to the supervision of the Court of Auditors are also obliged to make requested information accessible. However, they are not obliged to proactively provide information of general interest. In addition, they may refuse to provide information if this serves to prevent an impairment of their competitiveness. However, in the event of a refusal, individuals can also appeal to the Federal Administrative Court or the competent local administrative court.

Conclusion

The IFG aims to guarantee the right to information vis-à-vis the state and to meet the demands for more transparency in Austria. This objective must be critically questioned due to the fact that the vast majority of municipalities are not covered by the proactive duty to provide information, as well as the far-reaching list of exemptions to provide information stipulated in Section 6 para 1 IFG. Violating the obligation to proactively provide information is not subject to sanctions and does not lead to any legal consequences. A "transparency revolution" may look different.