Rainer J. Schweizer/Herbert BurkertVerwaltungsinformationsrecht

Rainer J. Schweizer/Herbert Burkert, Verwaltungsinformationsrecht, in: Rolf H. Weber (ed.), Informations- und Kommunikationsrecht, Volume V, in: Heinrich Koller/Georg Müller/René Rhinow/Ulrich Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht (SBVR), Section 2, pp. 1–45 (Basel 1996).

Background

The text of Rainer J. Schweizer and Herbert Burkert is an extract from the series «Swiss Federal Administrative Law». This series includes a volume on information and communications law and was edited by Rolf H. Weber in 1996 (and partly revised in a second edition of 2003, cf. Weber, 1.3). In view of the social requirements of the information society, the development of the law has been confronted with new challenges. The text of Rainer J. Schweizer and Herbert Burkert analyses the aspects of the so-called administrative information law.

The authors’ text is divided into six chapters: (i) Introduction: A view on the administrative information; (ii) Federal allocation of rights and duties; (iii) Constitutional framework from a material point of view; (iv) Responsibility for administrative information; (v) Liability for administrative information; (vi) The economical exploitation of administrative information. The text is mainly based on constitutional thoughts and arguments.

Rainer J. Schweizer is an emeritus professor of public law at the University of St. Gallen. His main fields of research are public law including European law, international law and theory of fundamental rights. Schweizer was elected to the standing committee of the Swiss Academy of Humanities and Social Sciences in 1998 and was a member of the scientific committee of the International Association of Judges. He has published many books, articles and book chapters.

Herbert Burkert has become known as a scholar tackling theoretical and philosophical questions in the field of information law. Together with Jean Nicolas Druey and Urs Gasser, Herbert Burkert is co-founder of the Research Center for Information Law at the University of St. Gallen; he continues to serve as the president of this research centre. Furthermore, Burkert acted as chairman of the Legal Advisory Board to the European Commission’s DG «Information Society».

Summary

Schweizer and Burkert start with an introduction into the issue of administrative information, defined as expression focusing on the processing of information by the administration’s employees and governed by law. Due to the increased use of information techniques in businesses, governments and society, the administrative authorities must take information into consideration as a specific issue. The authors’ text discusses the situation in which administrative information is used as a working tool. Thereby, according to Schweizer and Burkert, information that is used by the administration to provide services primarily for society (e.g. public registries) can be distinguished from information that is used for administrative purposes. The authors also discuss the different aspects of information as a means of communication. Furthermore, they underline that administrative information should not only be seen as a means of communication but also as an asset.

In the context of the allocation of rights and duties on the Swiss national level, the authors underline the importance of general legal principles such as the principle of legality and the principle of proportionality, which are also applicable in administrative information law. Furthermore, the authors explain the constitutional principle of equal treatment, the prohibition of arbitrary action, and the protection of legitimate expectations in administrative information law. Discussing the fundamental rights, Schweizer and Burkert emphasise that administrative information leads to power of administrative authorities. Therefore, an infringement of fundamental rights is possible; such infringements, mainly concerning the private sphere of individuals, must be prevented. The authors underline the increasing importance of data protection and describe the relevant legal framework.

The authors’ text also mentions the counterpart to data protection, namely the right to information access. Based on the constitutional framework at that time (1996), a right to information access could not be directly derived from the constitutional information freedom. In contrast, the authors describe the range of the relevant confidentiality requirements. However, the authors’ text concludes that rights to information do exist in specific relations between administration and individuals. Hence, there are procedural rights of the involved parties; for example, a right to inspection of records. Furthermore, the authors (i) explain the concept of information access in relation to the right to informational self-determination, (ii) describe the information access rules in the European Convention on Human Rights (article 10) and (iii) discuss the available court practice.

In the next section the authors’ text focuses on the so-called «transparency democracy». Schweizer and Burkert analyse the existing changes in information needs. With regard to these developments they discuss the given institutional framework that ensures access of the information for individuals. Furthermore, the authors take into account the responsibility for administrative information. The ongoing legalisation of informational processes is a consequence of the growing importance of information in society. In addition, the authors deal with the liability of administrative information, arguing that state liability law is applicable to the administrative information.

In the last chapter Schweizer and Burkert examine the economic exploitation of administrative information. They analyse the existing legal framework; the applicable provisions deal with survey data, meteorological information, statistical information and mandatory fall-back regulations. Furthermore, the authors emphasise the general importance of fee legislation related to administrative information. Finally, they mention possible further developments and outline the legislative boundaries of information exploitation.

In a nutshell, Schweizer and Burkert analyse the handling of information by administrative authorities taking into account the given legal framework and its challenges. The topic «administrative information law» is still current and an interesting legal field of expertise; today it is often called e-government. The timeliness of the topics can be seen, for example, in the newly established and running Swiss open data portal (www.opendata.swiss). The website «opendata.swiss» is the portal for Swiss open government data (OGD), which permits Swiss government data to be downloaded free of charge.

In the meantime, issues such as data policy and open government data have become important and frequent discussion topics in the legal community (cf. for example, Rolf H. Weber/Christian Laux/Dominic Oertly, «Datenpolitik als Rechtsthema – Agenda für Open Government Data», Zurich 2016 (translated «Data Policy as Legal Topic – Agenda for Open Government Data»).

Text

You can find a scan (PDF) of the original text here: Schweizer_Burkert – Verwaltungsinformationsrecht.