Facts

Parties:

  • Appellant: [A.]
  • Federal Office for Defence Procurement armasuisse

Subject: Access to official documents

Procedural history:

  • Appeal against the judgment of the Federal Administrative Court, Division I, of 5 April 2023 (A-839/2022)
  • Appellant requests access to documents concerning "Criteria and Weighting of the Air2030 NKF Evaluation"
  • Federal Administrative Court denies access
  • Appeal to the Federal Supreme Court

Facts:

  • Federal Council decides to purchase 36 fighter aircraft of the type F-35A
  • Appellant requests access to documents regarding the procurement of the new fighter aircraft (NKF)
  • Armasuisse denies access to documents concerning the criteria and weighting of the Air2030 NKF evaluation
  • Mediation request to the Federal Data Protection and Information Commissioner (FDPIC)
  • FDPIC recommends granting access to the requested documents
  • Armasuisse denies access with decision of 24 January 2022
  • Federal Administrative Court dismisses appeal
  • Appeal to the Federal Supreme Court

Considerations

The previous instance confirmed the denial of access to the documents, as it was of the opinion that Art. 3 para. 1 lit. e of the former Federal Act on Public Procurement (aPPA) constituted a special provision that took precedence over the Freedom of Information Act. The appellant disputed this.

The Federal Supreme Court stated that Art. 4 of the Federal Act on the Principle of Publicity of Administration (FoIA) reserves special provisions of other federal laws that designate certain information as confidential or provide different conditions for access to such information than the Freedom of Information Act. Whether and to what extent a legal norm as lex specialis takes precedence must be determined on a case-by-case basis through interpretation. The decisive factor is the purpose and objective of the diverging norms.

The Federal Supreme Court concluded that Art. 3 para. 1 lit.…