Constitutional Court Strengthens Freedom of Information in Hypo Vorarlberg Case

The highest court made clear that publicly listed companies are only those whose shares are admitted to trading on a stock exchange, and not issuers of other securities. "Börsennotierte Gesellschaften seien nur solche, deren Aktien an einer Börse zum Handel zugelassen sind und nicht Emittenten sonstiger Wertpapiere wie die Hypo Vorarlberg," the reasoning states. The bank is therefore not exempt from the information obligation, the VfGH ruled.

The Regional Administrative Court had interpreted the term "publicly listed companies" too broadly and thereby violated the journalist's constitutional right of access to information, according to the ruling. The exemption of "publicly listed companies" from the information obligation is, however, not unconstitutional — as the journalist had argued in his complaint — the highest court found.

Reasoning of the highest court

Hypo Vorarlberg is in indirect ownership of the State of Vorarlberg. The LVwG Vorarlberg had decided in the bank's case that it was exempt from the freedom of information obligation. The VfGH overturned the LVwG Vorarlberg's ruling; the court must now decide anew on the journalist's request.

The VfGH left open, however, whether the LVwG's finding complies with the IFG in every respect. This is not for the VfGH, but for the Administrative Court (VwGH) to assess in any potential appeal proceedings, the court made clear.

Second case: Lower Austria and Iran

In another freedom of information case, however, the VfGH found no violation of the fundamental right of access to information. This involved a journalist who had requested information from a company of the State of Lower Austria concerning activities in Iran. The LVwG Lower Austria had sided with the company, which had invoked contractual confidentiality obligations and the protection of personal data.

A lawsuit by another journalist, who had unsuccessfully sought information about a company of the State of Lower Austria's cooperation with Iran, was dismissed. The company in question is a Lower Austrian state-owned enterprise that, among other things, operates particle accelerators for medical purposes.

Significance for freedom of information

With the two decisions, the VfGH is laying down principles on freedom of information for the first time. The highest court emphasized that the interpretation of the IFG by the administrative courts must meet constitutional standards. Particularly with regard to the scope of exemptions such as publicly listed companies, a restrictive interpretation is required.

For journalistic work, the decision means that state and state-affiliated companies will in future be able to rely less frequently on a blanket exemption to reject information requests. Banks that issue bonds but are not publicly listed are therefore generally subject to the information obligation under the IFG.

The VfGH referred the case back to the LVwG Vorarlberg, which must now issue a new decision in compliance with the constitutional requirements. How long the proceedings will take remains open. Until then, Hypo Vorarlberg has not yet been required to release the requested information.