2023-06-28 08:58:23
The Federal Council has planned to exclude access to official documents on the loans and the default risk guarantee granted for the takeover of Credit Suisse by UBS. A derogation from the Transparency Act problematic in the eyes of the Federal Data Protection Commissioner.
This exception decided by right of emergency is not the first. The Federal Council has already resorted to the right of necessity during the pandemic or for the rescue of Axpo to evade the law on the transparency of the activities of its administration. However, in some cases, it can involve several billion francs of public funds.
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The law on transparency guarantees citizens access to official documents. Limiting this right by means of the right of necessity raises substantive legal issues, the Federal Data Protection Commissioner considers in the 30th Activity Report 2022/23.
The fact that recourse to the right of necessity is necessary to support the electricity sector or the financial sector does not make it possible to justify the need to also exclude the right of citizens to be able to understand the action of the administration, indicates The report.
Exceptions provided for by law
“The question raised by such a derogation is, if the policy starts to exclude certain areas of the law, how it can justify that certain areas are subject to the transparency law and others are not”, indicates Florence Henguely, deputy federal officer for data protection and transparency, questioned by the RTS.
I have the impression that it is rather a lack of confidence in this transparency law that emerges from these cases
Florence Henguely, Deputy Federal Data Protection and Transparency Officer
Florence Henguely recalls that even if the law on transparency is applicable, this does not automatically mean that access is guaranteed: “the law on transparency already provides for certain exceptions since the legislator, when the law comes into force , had foreseen delicate situations, in particular for security reasons”, she underlines.
A growing number of exceptions
In the case of Credit Suisse, if the law on transparency had remained applicable, the federal administration would have had the possibility of limiting access to official documents by invoking the protection of public and private interests.
For Florence Henguely, the exemption granted testifies to a lack of knowledge of the law on transparency, but also of confidence: “If there are too many exceptions to the law on transparency, when do we going to use it? I have the impression that it is rather a lack of confidence in this transparency law that emerges from these cases”.
In view of the growing number of exceptions to the Transparency Law under special laws, the official has decided to publish, starting this year, a table showing the number of such exceptions. Such exclusions from the scope of the Transparency Law weaken the principle of transparency.
Interview by Esther Coquoz
Web adaptation: ld and agencies
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