Facts

Die Schweizerische Post AG and die PostAuto AG (appellants) requested on 15 July 2019 from the Federal Audit Oversight Authority (RAB), on the basis of the FoIA, that a copy of the RAB's audit report on the ad hoc review of the audit activities of [A. AG] for PostAuto AG, and of the documents referenced therein, be delivered to them, or alternatively that they be granted inspection. The background was a RAB media release of 4 December 2018 which found 'partly considerable deficiencies'.

The RAB refused access on 5 August 2019, respectively by decision of 17 October 2019. The Federal Data Protection and Information Commissioner (FDPIC) recommended on 26 September 2019 that access be granted after hearing the affected third parties. The Federal Administrative Court, Division II, dismissed the appeal by judgment of 16 December 2020 (B-6115/2019).

The appellants lodged a public law appeal with the Federal Supreme Court (First Public Law Division, judgment 1C_93/2021 of 6 May 2022) and requested that the judgment be set aside and that the documents be delivered or, alternatively, that inspection be granted. The RAB requested dismissal.

Points in dispute:

  • Whether Art. 19 para. 2 AOA constitutes a special provision within the meaning of Art. 4 FoIA.
  • Whether the personal data in the audit report can be anonymised (Art. 9 FoIA).
  • Whether there is an overriding public interest in access (Art. 7 para. 2 FoIA, Art. 19 para. 1bis FADP, Art. 6 para. 2 FoIO).

Considerations

The Federal Supreme Court affirms its jurisdiction: this is a decision of the Federal Administrative Court at last instance concerning the principle of freedom of information (Art. 82 let. a, Art. 86 para. 1 let. a FSCA in conjunction with Art. 16 para. 1 FoIA). The appellants are entitled to appeal under Art. 89 para. 1 FSCA, since their access request was not granted. The appeal is admissible.

On the question of the special provision: the Federal Supreme Court holds that Art. 19 para. 2 AOA is not a special provision within the meaning of Art. 4 FoIA. According to its wording, legislative history, purpose and systematic position, Art. 19 para. 2 AOA only governs the active informing of the public by the RAB about ongoing or concluded proceedings in exceptional cases (protection of affected persons, correction of false reports, credibility of supervision). It does not prohibit disclosing further information upon an access request, provided the requirements of the FoIA are met. The absence of a coordinating note in the dispatch speaks against a lex specialis (BGE 146 II 265 E. 5.2.1). The audit secrecy (Art. 730b CO, Art. 7 para. 1 let. g FoIA) and official secrecy (Art. 34 AOA) do not lead to a different result either; the appellants are legitimate holders of the secret. The FoIA is therefore applicable and the appellants in principle have a right of access under Art. 6 FoIA.

On anonymisation: the lower court considered the audit report too indiscriminately to be non-anonymisable. Personal data of natural persons (e.g. names of employees) could be anonymised (Art. 9 para. 1 FoIA); this is to be done subsequently. The assessment of the audit activities of [A. AG] , by contrast, cannot be anonymised, so Art. 9 para. 2 FoIA in conjunction with Art. 19 para. 1bis FADP applies and a balancing of interests under Art. 7 para. 2 FoIA must be carried out.

On the balancing of interests: the Federal Supreme Court repeatedly criticises the lower court. First, it is unclear whether the audit report, which is not part of the enforcement proceedings, contains data on administrative prosecutions and sanctions within the meaning of Art. 3 let. c no. 4 FADP and is therefore particularly worthy of protection; the lower court assumed this without reasoning. Second, it did not adequately examine the reputational harm to [A. AG] (in particular whether this has already occurred with the media release).…