In a historic move, Austria is set to climb up the ranks of the Right to Information (RTI) Rating as it adopts a long-awaited Freedom of Information Act (FOIA) today. This significant development comes after spending many years at the bottom of the RTI Rating.
After a dedicated 11-year campaign led by Forum Informationsfreiheit, Access Info Europe, and various local and international organizations, Austria is poised to eliminate the previous statutory secrecy provision, dating back to the monarchy, from its constitution. This move will replace it with a comprehensive right to information, allowing citizens unprecedented access to official documents.
For the first time in Austria, the average citizen will have the right to request and access official documents, joining social watchdogs who have had this privilege based on European Court of Human Rights (ECHR) jurisprudence for a few years now. The FOIA will also extend to state-controlled entities and enterprises, with a proactive publication requirement.
However, some aspects of the law diverge from international best practices. Notably, any future reform of the FOIA will require the approval of all nine regional governments, posing a potential obstacle to comprehensive changes.
The law, set to take effect on September 1, 2025, will replace the current constitutional secrecy rules and Duty to Provide Information Acts (federal + 9 regional acts).
Key provisions of the FOIA include:
Application: The law applies to federal, regional, and local government entities, the judiciary administration, and bodies subject to scrutiny by the Courts of Audit. Anyone can request information.
Definition of Information: Information is defined as any record serving official or business purposes in the sphere of activity of an organ.
Deadline: Authorities must provide responses without undue delay, with a maximum deadline of four weeks, extendable by another four weeks. The deadline for issuing a formal decision that can be appealed is reduced from six months to two months.
Notification of Affected Persons: If requested information interferes with third-party rights, affected persons should be heard. Social watchdogs making Article 10 ECHR requests are exempt from notifying affected persons to protect journalistic investigations.
Proactive Publication: Information of general interest must be published in an easily accessible format, with data.gv.at serving as a central metadata registry. However, there are no oversight or sanction mechanisms for non-compliance, and small municipalities are exempt from proactive publication requirements.
Exemptions: The harm test and public interest tests, following ECHR jurisprudence, are referenced in the accompanying guidance document.
Critical Backdoor: The FOIA is not applicable if federal or regional laws contain special rules on access to information or if special public electronic registers have been created.
Supervision: No Information Commission or Commissioner is established; the data protection authority will advise and support authorities on data protection aspects.
Fees: No fees for requests and the provision of information.
Appeals: Administrative courts handle appeals with no lawyer required in the first instance. A 30€ fee is applicable, and courts are expected to rule within two months, though enforcement mechanisms may be limited.
The FOIA marks a significant step towards transparency in Austria, providing citizens with enhanced access to information, albeit with some challenges and limitations. The international community has played a crucial role in supporting and providing insights throughout the advocacy efforts.