Media workers inclined to conduct research or slip into the role of a “watchdog” must have free access to state sources in order to, if need be, exercise proper and independent control and criticism of the government and administration. Federal law on the principle of publicity in the administration has been in force since 1 July 2006. In principle, this gives media professionals, but also private individuals and industrial and service companies, access to all documents of the federal administration under the heading of “good governance”. The purpose of the Public Disclosure Act [Öffentlichkeitsgesetz] is to promote transparency with regard to the mandate, organisation, and activities of the administration. The focus is on access to official documents. In 2019, a total of 916 requests for access were submitted or assessed to authorities and administrative bodies, 44 per cent more than in 2018. Of these, 542 cases (59%) were granted full access to files, 171 cases (19%) partial access. In 86 instances (9%) access was refused (Lobsiger, 2020: 65). In 36 cases, according to the administration, there were no available documents.
According to the current annual report of the Federal Data Protection and Information Commissioner (FDPIC) for the period from 1 April 2019 to 31 March 2020, a paradigm shift is clearly visible, insofar as the principle of public access being implemented successfully by most federal authorities: “Complete access to the desired documents prevails, and the number of requests for access is increasing significantly”. In addition, verbal mediation negotiations have proven to be successful, as 61 per cent of cases were concluded amicably (Lobsiger, 2020: 64). However, the number of pending cases also increased, which indicates sluggish conciliation negotiations (Lobsiger, 2020). In 31 cases, those seeking access were charged a fee. The total of all fees amounted to CHF 18,185, which represents an increase of 15 per cent over the previous year and amounts to about CHF 586 per request (Lobsiger, 2020). Since the National Council’s State Policy Commission has decided to waive fees in future and to make access to documents free of charge for media professionals, a successful revision of the law should remove another obstacle to the desired transparency.
Even if it can generally be stated that the federal departments and administrations have opened up their communication channels in recent years and are less inclined to take a defensive stance, there are still major differences among the media representatives surveyed, regarding their current assessment of the accessibility of information. For one group of media professionals it has become more difficult, cumbersome, bureaucratic, expensive, and cross more complex legal hurdles, to obtain the desired information. The other group of media professionals considers the situation to be more comfortable and less restrictive than in the past, especially when the position and interests of the administration in terms of transparency or secrecy are also taken into account in the assessment.
In early summer 2020, two cases that became public indicate that there were still major obstacles for media professionals in research, in specific instances. In 2015, journalists of the weekly newspaper WOZ wanted to receive the names of all arms exporters from the State Secretariat for Economic Affairs (Seco). Seco refused to hand over the requested documents as a defensive reflex. Seco had not even clarified whether the arms companies concerned had even claimed an interest in secrecy with regard to the requested documents. With the help of a lawyer, the WOZ had to go through all instances, which made the proceedings extremely lengthy. In the meantime, Seco argued that this would not only endanger Switzerland’s international relations but would also annoy many affected countries who wanted to keep their arms procurement secret. This also applied to Sweden, claimed Seco (Susan Boos, 2020). All data relating to Sweden were generally accessible on an Internet platform of the Swedish administration and were anything but secret. After the Federal Supreme Court finally ruled in favour of the WOZ in 2019, the data arrived at the editorial office in June 2020, with a delay of five years, so to speak, and a fee of CHF 5,458.
In the second current example, in November 2018, the Zurich cantonal social welfare office had awarded contracts of almost CHF 120 million to external service providers for the care of asylum seekers. A few weeks later, the online magazine Republik submitted a request for a review. The social welfare office was to disclose all newly concluded as well as expired service contracts with external service providers (Hanimann, 2020). After the social welfare office refused to grant access, the Republik went to the administrative court and was proved right in essential points. Nothing in the Administrative Court’s ruling is yet final, as the Federal Supreme Court will be called upon if necessary. This history cannot yet be written.
From a democratic political perspective, these examples are problematic in several respects. They make it clear that administrations occasionally succeed in precluding “unpopular” stories from appearing, or at least delay them in such a way that they can only appear at all at great cost to the media companies. Weighing the merits, this suggests that the administration tries to favour private-sector interests over public interests. This leads to a problematic dilution of the Public Disclosure Act. In the opinion of the FDPIC, the Federal Administration attempts to circumvent the Public Information Act by means of exception regulations. Specifically, the Federal Council wants to keep a list of companies that are excluded from public contracts due to corruption or cartel agreements under lock and key. The administration argues that the access applications would only aim to obtain sensitive economic data from third parties and would not focus on the activities of the administration (Lobsiger, 2020). The Federal Office of Public Health also wants to keep the public law on the negotiation of price and reimbursement models between pharmaceutical companies and health insurance companies in compulsory health insurance secret in future. Here too, the Federal Council argues that if the actual prices were disclosed, the pharmaceutical companies would no longer be prepared to negotiate such pricing models. In addition, the Council points out that the majority of applications are not submitted by citizens but by pharmaceutical companies in order to gain access to business information of competing groups (Lobsiger, 2020).
The handling of the Public Disclosure Act by authorities, the media, and corporations, thus, continues to remain controversial. In exceptional cases, the administration continues to exercise secrecy and dispute it in elaborate arbitration proceedings. Sometimes, the duration of resolving such disputes makes the withheld information lose significance. The increasing juridification, too, does not represent a relief for media professionals. Indirectly, however, the application of the Public Disclosure Act also draws attention to the fact that democratically relevant economic organisations such as media, technology, infrastructure or pharmaceutical companies are able to keep their “business secrets” under lock and key in order to exploit their market power in an unregulated, uncontrolled, and non-transparent manner.
