After its decision to publish the minutes of the federal-state conferences in the corona pandemic, the Berlin administrative court published the reasons for the judgment on Tuesday. Accordingly, the court – unlike the Federal Chancellery – does not assume that the deliberations in the body should be permanently protected due to its proximity to government decisions. “The federal-state conference is not a collegial constitutional body with a decision-making process and decision-making autonomy,” says the judgment (file no.: VG 2 K 155/21). Rather, it is about “informal consultations between government and agency representatives” including experts who are occasionally consulted. The legally non-binding resolutions were “a mere basis for decision-making” for the federal and state governments.
As reported, last Thursday the administrative court obliged the Federal Chancellery to publish five meeting minutes, in particular from the lockdown period in spring 2020. The judgment came after a complaint by the Tagesspiegel under the Freedom of Information Act (IFG), according to which official information from authorities must be accessible to the public as a matter of principle. The meetings of the heads of government from the federal and state governments served to coordinate the protective measures in the pandemic years 2020 and 2021. Just like the former Chancellor Angela Merkel (CDU), the Federal Chancellery wanted to keep the files permanently under lock and key under the new Prime Minister Olaf Scholz (SPD).
The federal government had argued in the process that the short protocols had been produced exclusively for internal information within the Federal Chancellery. The results are recorded, as well as some sketches of individual intermediate statuses or consultation processes with positions and suggestions from the participants. A new and “unwanted dynamic” could arise from the publication of the corresponding reports. A “public pressure to justify” is to be feared; participants should not have expected publication and may be reluctant to submit new, uncoordinated proposals.
The court accepted little of this reasoning in its judgment. It also opposed the view of the Chancellery that the deliberations could formally continue. Rather, it was a “situation-related format” that was convened “depending on the situation of the pandemic” and has now been discontinued. There is therefore “no permanent consultation process”, as the chancellor’s office had claimed, in order to be able to refuse to disclose the minutes even years later.
According to the court, the conferences are recorded by the IFG as “consulting with authorities”. It is not apparent that and how such consultations could be affected by the release of the minutes. On the one hand, the Chancellery failed to explain which passages in which minutes reflected the actual process of official decision-making. On the other hand, a new situation has arisen with the change in the Infection Protection Act, since consultations now have to take place primarily in the Bundestag. The Chancellery also ignores the fact that future consultations due to the progress of vaccination and new virus variants will meet changed circumstances.
In any case, the court accuses the Chancellery of having only briefly justified the withholding of the minutes: The “abstract reasoning” that a protected, confidential area is necessary for future discussions between the federal and state governments in the context of combating the pandemic, “comes down to the deliberations between to withdraw the Federal and State Governments from the Freedom of Information Act in general in times of a pandemic”. This cannot convince.
The appeal to the Higher Administrative Court of Berlin-Brandenburg (OVG) was not admitted. However, the Chancellery can still submit an application for admission within one month, which the Higher Administrative Court must decide on.