Germany: Ministry must not always redact personnel files that show employees’ Nazi past

Tobias Raab

With a verdict of 10 of August 2015, the Higher Administrative Court of Münster (Oberverwaltungsgericht Münster) decided that the German Federal Ministry for Agriculture must allow a journalist the inspection of an expert opinion on the Nazi past of its former employees. The decision, in part, also includes redacted areas of the opinion. (Case 8 A 2410/13).

In the specific case, a journalist had requested permission from the Federal Ministry for Agriculture to be allowed to inspect an expert opinion on the Nazi past of its former employees which had been commissioned by the Ministry in the year 2005. To achieve the goal of the opinion, which was to assess the respectability of 62 former Ministry employees with regard to whether or not they should be honoured after their death with a wreath, donation or display, their curricula vitae had been examined regarding their Nazi background. Even though the journalist had been allowed to inspect the survey, he could not find as much information as he had hoped to find, since many passages of the opinion had been redacted. The Ministry argued that data protection aspects had forced it to redact certain parts of the opinion because they contained personal data. The journalist then lodged a claim against the Ministry, requesting the right to also inspect the redacted passages of the opinion.

According to the Court, the Ministry is obligated to ask the former employees who are still alive whether or not they wish to give their consent or not to the inspection of their personal data. The Court now admitted the journalists claim and decided that blacking out parts of the survey was only justified in cases where affected persons had explicitly vetoed an inspection of their personal data.

The Ministry will have to allow the plaintiff to inspect all parts of the survey that refer to the decedents, especially if they had died more than three years ago and have been classified as “clearly worthy of criticism” or “not respectable” by the survey. The Court stated that, under these conditions, protection of personal data could only preclude the right to free access to information in accordance with paragraph 5 of the German Law on freedom of information (Informationsfreiheitsgesetz, IFG) in a limited way. According to sec. 106 et seq. of the German Law on federal civil servants (Bundesbeamtengesetz, BBG) personal files of civil servants have to remain confidential even after the civil servants’ deaths. However, the Court decided there had to be some limits to this confidentiality, e.g. in cases where legitimate interests were overlapping. In this particular case, the public interest in information by the press represented a legitimate interest that outweighed the interest of data protection by the civil servants.

The Higher Administrative Court of Münster’s judgement can be found here.

Tobias Raab works at the Institute for European Media Law (EMR), Saarbrücken/Brussels.