The Case
In the proceedings, an engineering office asked a higher federal authority within the business branch of the Federal Ministry for Economic Affairs and Energy for access to documents. The information provided by the authority dealt with a procedure carried out for the type approval of speed measuring devices. The engineering office made reference to the Freedom of Information Act.
The federal authority refused to grant access. The Administrative Court in Braunschweig decided that the federal authority had to submit the requested documents. As a result, the federal authority submitted part of the requested documents with blackened passages. For the other part, it issued a ban certificate pursuant to Article 99 (1) sentence 2 VwGO (Verwaltungsgerichtsordnung, Administrative Court Procedures Code). The federal authority stated that these passages contained business and trade secrets. Since the Administrative Court could not decide the case without the documents, it called in the Higher Administrative Court of Lower Saxony. This court decided that the ban certificate was not lawful for some passages, but was lawful for the others.
However, the Federal Administrative Court overturned this decision. The ban certificate was lawful in its entirety – also with regard to the blackened pages objected to by the Higher Administrative Court of Lüneburg. According to the BVerwG, inspection of the files could be refused in the case to protect business and trade secrets.
Business And Trade Secrets Also Exist With Authorities
Pursuant to Article 99 (1) sentence 2 VwGO (Administrative Court Procedures Code), business and trade secrets are deemed to be events which must by their nature be kept secret. Protected business and trade secrets include such facts, circumstances and processes which are not obvious. The BVerwG also stated that trade secrets were information in which the company had a legitimate interest in not disclosing them. Such an interest exists if the information is likely to make exclusive technical or commercial know-how available to competitors, and thereby weaken its own competitive position.
The Judgment Protects Manufacturers From Competition
According to the court, this is the case here. This is because this case concerns documents which a manufacturer of speed measuring devices had had to submit for the procedure for type approval. The documents contained device-specific information, including construction drawings, circuit diagrams, components, etc. On the basis of this information, a competitor was able to completely rebuild the device. It was therefore justified to keep it under lock and key. This also applied to the blackened lists of file names, types and sizes. Because competitors could also draw conclusions from this information. The Federal Administrative Court decided that this information should therefore also be kept secret.
