Informationsanspruch versus Geheimnisschutz im Verfahren nach § 99 Verwaltungsgerichtsordnung

Abstract

The article is aimed at lawyers, administrative lawyers and administrative judges whose work is affected by the decision of an administrative authority to refuse access to documents in administrative court proceedings on the grounds of confidentiality (“blocking declaration” – Sperrerklärung). This right has its legal basis in Section 99 (2) sentence 3 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung). In particular, it concerns court proceedings in which access to information is the subject of the legal dispute. The article describes the explosive nature of “blocking declarations” from the point of view of effective legal protection and the judicial duty to clarify the facts, as well as the procedural context in which “blocking declarations” are often made. Based on the jurisprudence of the Federal Administrative Court, the essay presents the special procedure for contesting “blocking declarations” before the so-called “Fachsenate”, i. e. specialized judicial panels that hold “in camera” proceedings, at the Higher Administrative Courts and the Federal Administrative Court. The legal requirements for “blocking declarations” are described in detail in both formal and material terms. A clear distinction is drawn between the reasons for issuing “blocking declarations” and the reasons for refusing to disclose information, which are provided for in specific laws, as they are often confused. The character of the “blocking declaration” as a discretionary decision is elaborated and typical errors in the exercise of discretion are pointed out, which also often result from confusing both grounds. The article concludes with comments on the possibility of lodging an appeal with the Federal Administrative Court against the decision of a Higher Administrative Court on the legality of a “blocking declaration”.