Administrative Court Kassel – Judgment of 14 July 2022 – Case No.: 3 K 1606/19.KS

VERDICT

In the administrative litigation

Mr. xxx's

Plaintiff,

Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,

against

The City of Kassel, represented by the Magistrate,
Town Hall, 34117 Kassel,

Defendant,

due to proceedings under the Freedom of Information Act

The Administrative Court of Kassel – 3rd Chamber – through
Judge xxx as single judge,

Based on the oral hearing of July 14, 2022, the following judgment was rendered:

The defendant is ordered, with the annulment of the decision of 17 May 2019, to answer the following questions to the plaintiff:

1. Which specific measures were not implemented in 2015, 2016 and 2017 due to the management principles of the city council, or which specific financial requests from the departments were rejected due to the management principles?
   
2. How much time passed between the request for funds by the respective office and a rejection decision?
   
3. What findings and developments, which only became known after the adoption of the 2015, 2016, and 2017 budgets, led to the application of budget management principles in each case?
   
4. At which meeting(s) did the city council decide on the principles of budget management for the years 2015, 2016 and 2017?
   
5. What is the content of the budget management principles for the years 2015, 2016 and 2017?

The defendant shall bear the costs of the proceedings.

The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable under the judgment, unless the plaintiff provides security in the amount of 110% of the amount to be enforced before enforcement proceedings commence.

FACTS

The plaintiff, who was a member of the defendant's city council from March 2006 to December 2013 and from March 2021 to April 2021, is requesting information under the Hessian Data Protection and Freedom of Information Act (HDSIG).

By email dated December 10, 2018, the plaintiff requested the transmission of information based on the statute regulating access to official information from the city of Kassel's own sphere of activity dated October 29, 2018

(Freedom of Information Statute) regarding the application of the budget management principles of the City of Kassel pursuant to Section 107 of the Hessian Municipal Code (HGO). In this context, he formulated the following questions:

1. Which specific measures were not implemented in 2015 due to the city council's management principles, or which specific financial requests from departments were rejected due to these principles? (Please list by department, measure/project, and amount)
   
2. Which specific measures were not implemented in 2016 due to the city council's management principles, or which specific financial requests from departments were rejected due to these principles? (Please list by department, measure/project, and amount)
   
3. Which specific measures were not implemented in 2017 due to the city council's management principles, or which specific financial requests from departments were rejected due to these principles? (Please list by department, measure/project, and amount)
   
4. How much time elapsed between the request for funds by the respective office and a rejection decision (average/minimum/maximum)?
   
5. What findings and developments, which only became known after the adoption of the 2015 budget, led to the application of budget management principles?
   
6. What findings and developments, which only became known after the adoption of the 2016 budget, led to the application of budget management principles?
   
7. What findings and developments, which only became known after the adoption of the 2017 budget, led to the application of budget management principles?
   
8. At which meeting(s) did the city council decide on the principles of budget management for the year 2015?
   
9. At which meeting(s) did the city council decide on the principles of budget management for the year 2016?
   
10. At which meeting(s) did the city council decide on the principles of budget management for the year 2017?
    
11. Contents of the budget management principles for the year 2015.
    
12. Contents of the budget management principles for 2016.
    
13. Contents of the budget management principles for 2017.

Following a request from the Hessian Commissioner for Data Protection and Freedom of Information (p. 79 of the supplementary file), the defendant rejected the application for access to information by decision dated May 17, 2019. In support of its decision, the defendant referred to Section 85 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG) with regard to questions 1 to 3. According to this provision, the request for information pertained to general administrative actions and to information that was not available in the requested format. The information would have to be requested from all departments of the city and compiled from numerous files. This would constitute a disproportionate administrative burden. The same applied to question 4, as such a list did not exist at the defendant's office and would have to be compiled. Regarding questions 5 to 13, no information could be provided, as the application of the HDSIG was precluded by the special provision of Section 50 Paragraph 2 of the Hessian Municipal Code (HGO). The freedom of information statute cannot establish any rights beyond those granted to city councilors under the Hessian Municipal Code (HGO). For further details, please refer to pages 11 et seq. of the file.

The plaintiff filed a lawsuit on June 19, 2019, against the decision of May 17, 2019. In support of his claim, the plaintiff argues that the city council had already informed the Committee for Finance, Economic Affairs, and Fundamental Issues in 2012 that it was reducing the approved budget by approximately €2 million annually due to the implementation of the budget management principles. Therefore, the requested information must be available. Furthermore, it contradicts common sense that the effectiveness of the adopted budget management principles is not monitored and documented. For further details, please refer to page 1 of file A.

The plaintiff requests
that the defendant, upon annulment of the decision of 17 May 2019, be ordered to answer the following questions:

1. Which specific measures were not implemented in 2015, 2016 and 2017 due to the management principles of the city council, or which specific financial requests from the departments were rejected due to the management principles?
   
2. How much time passed between the request for funds by the respective office and a rejection decision?
   
3. What findings and developments, which only became known after the adoption of the 2015, 2016, and 2017 budgets, led to the application of budget management principles in each case?
   
4. At which meeting(s) did the city council decide on the principles of budget management for the years 2015, 2016 and 2017?
   
5. What is the content of the budget management principles for the years 2015, 2016 and 2017?

The defendant requests that
the action be dismissed.

In support of her claim, she essentially reiterates the arguments presented in the administrative proceedings. She further explains that the more specific regulation in Section 50 Paragraph 2 of the Hessian Municipal Code (HGO) precludes the plaintiff's right to information under Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG). Only the municipal representatives have the right to oversee the municipal executive board and, in this context, also the right to ask questions. Furthermore, the minutes of the municipal executive board meetings are to be treated confidentially.

By decision of 13 June 2022 (p. 20 of the file), the Chamber transferred the legal dispute to the rapporteur as a single judge for decision.

For further details of the facts and the legal arguments, reference is made to the court and administrative files and the minutes of the oral hearing of July 14, 2022. The aforementioned files were made part of the oral hearing.

REASONS FOR DECISION

The action, which the single judge is called upon to decide after being referred by the chamber (§ 6 para. 1 Administrative Court Procedure Act).<VwGO> ), is permissible and justified.

The plaintiff has a right to the requested information specified in the application pursuant to Section 80 Paragraph 1 Sentence 1 HDSIG, so that his rights are violated by the rejection of his request by decision of 17 May 2019 (Section 113 Paragraph 1, 5 Sentence 1 VwGO).

The defendant is covered by the scope of the HDSIG (Hessian Data Protection and Information Security Act), as it has declared Part Four of the HDSIG applicable to itself by means of its statutes (§ 81 para. 1 no. 7 HDSIG in conjunction with § 1 of the statutes regulating access to official information from the city of Kassel's own sphere of activity).<Informationsfreiheitssatzung> , p. 7 d. BeiA).

The plaintiff's right to information under Section 80 Paragraph 1 Sentence 1 of the Hessian Data Protection and Information Security Act (HDSIG) is not already excluded on the grounds of Section 80 Paragraph 2 of the HDSIG in conjunction with Section 50 Paragraph 2 Sentence 2 of the Hessian Municipal Code (HGO).

According to Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG), Part Four of the HDSIG does not apply insofar as special legal provisions regulate the disclosure of information. According to Section 50 Paragraph 2 Sentence 2 of the Hessian Municipal Code (HGO), the municipal council may, through a committee for the oversight of the municipal administration, inspect files concerning certain matters of the municipal executive board.

According to the explanatory memorandum to the law (LT-Drucks. 19/5728, p. 149), Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG) contains an independent regulation on the relationship between the general right to information under Section 80 Paragraph 1 HDSIG and other sector-specific rights of access to information.

Accordingly, sector-specific regulations supersede the general right to information insofar as they contain independent requirements for granting, the type, or the scope of information or other forms of disclosure. This is intended to ensure that special procedural and cost regulations are not circumvented (BeckOK InfoMedienR/Gounalakis, 36th ed. 1.2.2021, HDSIG § 80 para. 20).

According to the purpose of Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG), it is essential that the requesting person actually has a specific right to information. Only in this case does a conflict of rights arise that needs to be resolved, with the risk of circumventing special regulations. If the person requesting information only has the right under Section 80 Paragraph 1 HDSIG, then Section 80 Paragraph 2 of the Hessian Municipal Code (HGO) is inapplicable due to the lack of any existing and resolvable conflict of rights to information.

In the present case, the plaintiff was neither a member of the defendant's municipal council during the calendar years to which his right to information relates, nor at the time of the oral hearing. He was therefore not entitled to a claim under Section 50 Paragraph 2 Sentence 2 of the Hessian Municipal Code (HGO). For this reason alone, he is not precluded by Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG) in conjunction with Section 50 Paragraph 2 Sentence 2 of the HGO from asserting a claim under Section 80 Paragraph 1 of the HGO.

Furthermore, Section 80 Paragraph 2 HDSIG in conjunction with Section 50 Paragraph 2 Sentence 2 HGO does not have a general blocking effect that excludes a right to information even independently of individual involvement.

Such an interpretation would contradict the purpose of the Hessian Data Protection and Information Security Act (HDSIG). According to the explanatory memorandum, as explained above, the Act aims only to prevent the circumvention of special regulations and not to restrict the public's right to obtain information under Section 80 Paragraph 2 HDSIG. This is evident, among other things, from the fact that while a party to the proceedings who is prevented from invoking Section 80 Paragraph 1 HDSIG during the proceedings due to the special provision applicable to them under Section 29 of the Hessian Administrative Procedure Act (HVwVfG) or Section 25 of the German Social Code, Book X (SGB X), applicants who are not parties to the proceedings are not (Parliamentary Document 19/5728, p. 149). The exemplary list of regulations in other legal provisions concerning requests for information in the explanatory memorandum to the law further demonstrates that the legislator was primarily concerned with rights reserved to specific persons (or groups of persons) and that these rights should be limited to these specific rights (see also Schild/Piendl, HDSIG, as of July 2021, § 80 para. 6). The aim, however, was not to exclude the claim under § 80 para. 1 HDSIG in the event of any sector-specific claim. This would, on the one hand, contradict the objective of the HDSIG, which is to grant a comprehensive right to information, and on the other hand, would completely undermine the claim, since specific groups of persons have special rights of control and information applicable to them in almost every public sector. This is particularly true because the defendant itself has the power to extend the application of § 80 para. 1 HDSIG to itself (§ 81 para. 1 no. 7 HDSIG).

The defendant's argument that the right to information under Section 80 Paragraph 1 HDSIG could not exceed the right of municipal representatives under Section 50 Paragraph 2 Sentence 2 HGO was not convincing.

It is already established that the municipal council's right to information, inspection, and questioning is embedded in a separate and comprehensive regulatory system. Section 50, paragraph 2 of the Hessian Municipal Code (HGO) serves the purpose of regulating the competencies of the respective municipal bodies and balancing them among themselves (Bennemann, Commentary on the Hessian Municipal Code, Volume I: HGO, as of January 2022, Section 50, marginal notes 1, 52). It is neither apparent nor has it been argued to what extent extending the general right to information under Section 80, paragraph 1 of the Hessian Data Protection and Information Security Act (HDSIG) would contradict this regulatory system. The defendant has merely stated that the agenda of municipal council meetings, the wording of municipal council resolutions, or the reasons for their decisions cannot be requested under Section 50, paragraph 2 of the HGO. However, she did not explain to what extent the information requested by the plaintiff could only be obtained from the sources she mentioned, and why this would be incompatible with the regulatory framework of Section 50 Paragraph 2 of the Hessian Municipal Code.

Furthermore, in the present case, the plaintiff would not be granted any more extensive rights than the municipal council. According to Section 50 Paragraph 2 of the Hessian Municipal Code (HGO), the most effective means available to the municipal council is the establishment of a committee for access to files, which is endowed with comprehensive (control) powers such as the right to inspect files and to question the municipal executive board (for further details, see Bennemann, Commentary on the Hessian Municipal Code, Volume I: HGO, as of January 2022, Section 50, marginal notes 52 ff., 88, 94 ff.). The plaintiff, on the other hand, is only seeking answers to individual questions and would not have any right to question municipal bodies.

In light of all this, Part Four of the HDSIG is applicable in the present case.

The plaintiff has a right to access the aforementioned official information pursuant to Section 80 Paragraph 1 Sentence 1 HDSIG.

According to Section 80 Paragraph 1 Sentence 1 of the HDSIG, everyone has a right to access official information from public authorities in accordance with Part Four (of the HDSIG).

Official information in this sense, according to Section 80 Paragraph 1 Sentence 3 of the Hessian Data Protection and Information Security Act (HDSIG), includes all records serving official purposes, regardless of how they are stored. It is consistent with the purpose of the law—to make administrative action more open and transparent in the future, to promote public participation and oversight of government action, and to foster democratic opinion-forming and decision-making (Parliamentary Document 19/5728, p. 97)—to interpret the term "official information" broadly (Administrative Court Wiesbaden, Judgment of January 17, 2022 – 6 K 784/21.WI) and to initially grant every applicant a legally enforceable right to access information, which can only be excluded in exceptional circumstances (Sections 82 et seq. HDSIG).

A prerequisite for this legally binding right to information is that the requested information is already available at the agency obligated to provide it, meaning that it is actually and permanently available for disclosure (BeckOK InfoMedienR/Gounalakis, 36th ed. 1.2.2021, HDSIG § 80 para. 14). This is the case here. In the legal proceedings, as well as during the oral hearing, the plaintiff explained in detail why and where, according to his understanding of the administrative processes, the requested information must be available. According to him, the defendant's finance department, at the very least, possesses the requested information, as it is the central body involved in inquiries regarding the release of funds from the budget. The defendant has not substantively refuted this plausible explanation.

Rather, she merely stated that she was unable to present information on the matter in her own possession due to the absence of the relevant department at the oral hearing, which at least casts doubt on the defendant's prior examination of the plaintiff's right to information.

Furthermore, the defendant also stated that answering the plaintiff's questions 1 to 4 (now 1 and 2) would require compiling this information from numerous files and queries across all subject areas and departments of all offices. By doing so, the defendant explicitly acknowledges that, in its view, the relevant information is generally available, albeit not in a consolidated form. The same applies to questions 5 to 13 (now 3 to 5), as the defendant had argued that disclosing this information would be precluded by Section 80 Paragraph 2 of the Hessian Data Protection and Information Security Act (HDSIG) in conjunction with the Hessian Municipal Code (HGO), meaning that it does, in principle, possess information relevant to the plaintiff's questions.

The plaintiff's claim is not exceptionally excluded.

In particular, the defendant could not reject the plaintiff's request regarding questions 1 to 4 (now 1 and 2) because of the associated effort.

According to Section 85 Paragraph 2 of the HDSIG, an application may be rejected if it is directed at general administrative action and relates to information that would have to be gathered from a large number of files or information carriers if access to the information would only be possible with disproportionate administrative effort.

It can remain undecided whether the plaintiff's request pertains to general administrative action. It is neither apparent, nor has the defendant demonstrated, that the requested information would need to be gathered from numerous files or information carriers. The defendant has at no point addressed the plaintiff's substantiated and detailed submissions, as the plaintiff is familiar with the defendant's administrative procedures. The plaintiff had argued that the finance department, at the very least, should possess the requested information. Instead, the defendant has merely repeated the text of the law to a large extent, both in its decision of May 17, 2019, and in its statement of defense.

The defendant has neither explained the effort involved in answering the plaintiff's questions, nor has she weighed, by way of a discretionary decision, to what extent this would be disproportionate in light of the plaintiff's interest in information.

Regarding the administrative effort, the defendant merely states that the information would have to be requested from all subject areas and departments of all offices.

The actual effort involved is not evident from the case file, nor did the defendant address this issue during the oral hearing – despite repeated inquiries from the plaintiff and the court. It would have been expected that the defendant, in processing the plaintiff's request, would have determined the effort required to answer the question – for example, by conducting preliminary inquiries. The files and statements submitted to the court do not even indicate the personnel or time resources required to answer the plaintiff's question. On the contrary, the defendant gives the impression of having addressed the plaintiff's request for information either not at all or only incompletely, as it was unable to specify during the oral hearing whether, and if so, where the requested information existed or what effort would be involved in providing it.

Furthermore, the exercise of discretion required under Section 85 Paragraph 2 Sentence 2 of the Hessian Data Protection and Information Security Act (HDSIG) is entirely lacking. According to this provision, a request that must be compiled from numerous files or information carriers can be rejected if it would only be possible with disproportionate administrative effort. This implies that not every increase in administrative effort is sufficient to preclude a right to information. Rather, this effort must be disproportionate and then weighed against the circumstances of the individual case. The defendant failed to do this in the present case. A discretionary decision is not evident in the decision of May 17, 2019 (pp. 11 et seq. of the file) and was not subsequently made in the administrative court proceedings pursuant to Section 114 Sentence 2 of the Code of Administrative Court Procedure (VwGO). Furthermore, the administrative effort would not be disproportionate simply because the information would have to be compiled from numerous files, as the defendant argues.

The plaintiff's claim is also not precluded by Section 84 Paragraph 2 Number 2 of the Hessian Data Protection and Information Security Act (HDSIG). Accordingly, the request for access to minutes of confidential consultations must be rejected.

However, it is not apparent in the present case which information requested by the plaintiff could be considered confidential. The defendant argued that the meetings of the municipal council are not public and therefore confidential (p. 32 of the file). However, the defendant failed to specify which of the plaintiff's requested information could only be obtained from confidential meetings of the municipal council and not from other sources. The defendant should have provided a more detailed explanation and, if necessary, indicated this with (partial) redactions. Furthermore, the Hessian Municipal Code (HGO) does not provide for a general confidentiality of information (Bennemann, Commentary on the Associations, Volume I: HGO, as of January 2022, § 50, para. 74 et seq., with reference to § 24 para. 2 sentence 2 HGO). The fact that the information concerning the budgetary freeze pursuant to Section 107 of the Hessian Municipal Code (HGO) is confidential information would have required special presentation, since it loses its effectiveness after a period of one year (Bennemann, Verbandskommentar Band II: HGO, as of January 2022, Section 107, marginal note 28), which in itself already argues against a continuing interest in confidentiality.

No further reasons suitable for excluding the plaintiff's right to information have been presented, nor are any otherwise apparent.

Therefore, the claim is justified. The defendant is obligated to provide the plaintiff with the requested information in a suitable form.

Pursuant to Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO), the losing defendant shall bear the costs of the proceedings. The decision regarding provisional enforceability is governed by Section 167 Paragraph 1 Sentence 1 and Paragraph 2 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11 and 711 Sentences 1 and 2 of the Code of Civil Procedure (ZPO).

The following is information on legal remedies.