Federal Government’s refusal to disclose number of staff posted abroad by the Federal Office for the Protection of the Constitution violated parliamentary right of inquiry

Federal Government's refusal to disclose number of staff posted abroad by the Federal Office for the Protection of the Constitution violated parliamentary right of inquiry

Press Release No. 107/2022 of 14 December 2022

Judgment of 14 December 2022 - 2 BvE 8/21

Parliamentary right of inquiry regarding the Federal Office for the Protection of the Constitution

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that the Federal Government's refusal to disclose the number of staff posted abroad between 2015 and 2019 by the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz - BfV) violated the parliamentary right of inquiry under Art. 38(1) second sentence of the Basic Law (Grundgesetz - GG) of the applicant, who is a member of the German Bundestag.

There are no valid reasons justifying the Federal Government's refusal to provide the requested information. The applicant's question did not touch upon the government's core of autonomous executive decision-making (Kernbereich exekutiver Eigenverantwortung), nor did it affect the fundamental rights of any third parties. The Federal Government failed to sufficiently substantiate its claim that answering the question would jeopardise security interests of the state, nor is this otherwise apparent. The Federal Government's abstract argument that foreign intelligence services gather fragments of information in order to put the pieces together like a "jigsaw puzzle" does not absolve the Federal Government from having to provide specific reasons substantiating its claim that the requested information could be one such piece of the puzzle from which an overall picture could potentially emerge, thereby allowing foreign services to gain an intelligence advantage. No such reasons were put forward by the Federal Government in the present case.

Facts of the case:

The applicant is a member of the German Bundestag and belongs to the parliamentary group of the Freie Demokratische Partei (FDP). He submitted a written question asking the Federal Government to disclose the number of staff posted abroad by the Federal Office in each of the five preceding years.

By letter of 9 December 2020, the Parliamentary State Secretary at the Federal Ministry of the Interior, Building and Community stated on behalf of the Federal Government that answering the question would not be possible - not even in classified form. In the letter, he claimed that the requested information was closely bound up with security interests of the state, arguing that details on the methods and strategies employed by federal security authorities warranted special protection in view of the need to safeguard future operational capabilities. If the question were to be answered, concrete information about the activities of the security authorities - especially their methodology and specific capabilities - would become accessible to an undefined number of people. In particular, details concerning the total number of staff deployed abroad would allow conclusions to be drawn about how the Federal Office for the Protection of the Constitution operates. In a further letter, the Parliamentary State Secretary added that the disclosure of overall staff numbers - as a basic indicator of operational activity - would provide insight into the fundamental structure of intelligence service methodology and would allow conclusions to be drawn about the Federal Office's operational capabilities. Even if the question were to be answered in classified form, the risk - however slight - of information finding its way into the public domain would not be acceptable.

By way of Organstreit proceedings (disputes between constitutional organs), the applicant seeks a declaration to the effect that his parliamentary right of inquiry arising from Art. 38(1) second sentence GG was violated by the Federal Government's refusal to disclose the requested information.

Key considerations of the Senate:

The application is well-founded because the Federal Government's refusal to disclose the number of staff posted abroad by the Federal Office between 2015 and 2019 violated the applicant's parliamentary right of inquiry under Art. 38(1) second sentence GG.

I. Under Art. 38(1) second sentence and Art. 20(2) second sentence GG, the German Bundestag has the right to ask questions and to receive information from the Federal Government. In accordance with the Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages), this right extends to the individual members of the Bundestag and generally corresponds with a duty of the Federal Government to provide information.

Nevertheless, the right of the Bundestag and its individual members to receive information is not without limits. Limits to this right must, however, be rooted in constitutional law - even if they are set out in statutory (i.e. non-constitutional) provisions. The parliamentary right of inquiry may thus be limited by the government's area of responsibility, by its core of autonomous executive decision-making, by the fundamental rights of third parties, and by security interests of the state.

When the Federal Government wholly or partially refuses to disclose requested information or when it discloses requested information in classified form only, it must state plausible reasons for doing so. Such reasons may not be furnished at a later stage.

II. Measured by these standards, the Federal Government did not sufficiently substantiate its refusal to disclose the requested information. It thereby violated the applicant's parliamentary right of inquiry under Art. 38(1) second sentence GG.

1. It is not evident from the Federal Government's submissions that its refusal to disclose the requested information was justified by security interests of the state. The only such interest capable of providing justification in the present case would be the interest in maintaining the proper functioning of the Federal Office.

a) The Federal Government did not demonstrate that the proper functioning of the Federal Office could be adversely affected by the requested information's disclosure, nor is this otherwise apparent.

The applicant's question was exclusively directed at discovering the total number of Federal Office staff deployed abroad each year from 2015 to 2019 and at obtaining an assessment of that figure in view of the division of tasks between the Federal Office for the Protection of the Constitution and the Federal Intelligence Service (Bundesnachrichtendienst - BND). The applicant did not ask for the requested figure to be further specified in terms of the location or region to which staff were deployed, the duration of their deployment, the main focus of their activities, or any other criteria.

The Federal Government's argument regarding intelligence service methods does not present a valid obstacle to the applicant's request. The Federal Government argues that intelligence services gather fragments of information in order to put the pieces together like a jigsaw puzzle and that, as a consequence, the requested information could be a critically important detail that would allow foreign intelligence services to draw security-related conclusions about the Federal Office's activities abroad.

This abstract consideration is not capable of substantiating the claim that the proper functioning of the Federal Office would be adversely affected if the parliamentary question was answered. It is true that new insights can be gained by combining pieces of information that - on their own - appear to have little intelligence value, which is what the Federal Government claims. However, this does not absolve the Federal Government from having to provide specific reasons substantiating its claim that the requested information could be one such piece of the puzzle from which an overall picture could potentially emerge, thereby allowing foreign services to gain an intelligence advantage. If no more specific reasons had to be provided, the jigsaw puzzle argument could be used to block the disclosure of any information whatsoever because information, by its very nature, can always be regarded in abstract terms as representing a piece of some puzzle within a given context.

b) Against this backdrop, the Federal Government's submissions do not demonstrate that its interest in maintaining secrecy outweighs the parliamentary right of inquiry to such an extent that the Federal Government could refrain from answering the parliamentary question - possibly in classified form.

If the jigsaw puzzle theory put forward by the Federal Government were to be accepted as a valid argument, the result would essentially be the creation of an exception for the activities of the intelligence services, rendering the right of members of the Bundestag to ask parliamentary questions virtually meaningless in this domain.

An exception of this kind would not be consistent with the requirement to achieve maximum equilibrium (praktische Konkordanz) in cases of conflict between the Federal Government's constitutional interest in maintaining secrecy on the one hand, and the parliamentary right to receive information on the other.

Even assuming that the Federal Office's operational capabilities could indeed be affected by the disclosure of the total number of staff posted abroad between 2015 and 2019, whether in classified form or not, the resulting impact would be so minimal that it would not justify the complete vitiation of the parliamentary right to be informed.

c) Nor can it be argued that the right of individual members of the Bundestag to ask questions must stand back in favour of other possibilities to exercise parliamentary scrutiny of the intelligence services.

In its case-law, the Federal Constitutional Court has explicitly stated that the Parliamentary Oversight Panel (Parlamentarisches Kontrollgremium) is merely an additional instrument of parliamentary scrutiny and cannot replace other parliamentary rights to receive information. This remains the Court's position. Due to the Parliamentary Oversight Panel's remit, its limited possibilities for taking evidence, and its majority requirements (requiring qualified majorities in some cases), it is only capable of subjecting the activities of the intelligence services to partial scrutiny.

d) It is also mistaken to argue that the refusal to answer the parliamentary question - even in classified form - is justified on the sole ground that confidential information would be made accessible to a greater number of persons.

Within the parliamentary system of government under the Basic Law, the Federal Government is not the sole guardian of state interests. Rather, the Bundestag and the Federal Government are jointly entrusted with safeguarding the security interests of the state. Thus, with regard to confidential information, the Federal Government cannot generally invoke security interests of the state vis-à-vis the Bundestag if effective safeguards to prevent official secrets from entering the public domain have been put in place on both sides.

In the present case, the Federal Government does not claim that the Bundestag failed to create effective safeguards to prevent the requested information from entering the public domain, should it be disclosed in classified form. Rather, the Federal Government simply refers to the fact that a greater number of persons would have access to the information if the parliamentary question were to be answered - even if the information were disclosed in classified form. This argument fails to take account of the requirement to achieve maximum equilibrium between the state's interest in maintaining secrecy on the one hand, and parliamentary rights to receive information on the other. It would again result in the creation of an impermissible exception that would vitiate the parliamentary right to ask questions on matters relating to the intelligence services.

2. Furthermore, the Federal Government's refusal to answer the parliamentary question on the number of Federal Office staff posted abroad does not satisfy the substantiation requirements under constitutional law.

Ultimately, the reasons put forward by the Federal Government merely amount to the assertion that disclosing the total number of Federal Office staff posted abroad during the period in question would help foreign intelligence services develop counter-strategies and would thereby jeopardise the success of the Federal Office's operational activities. Why this should be the case is not explained in any further detail. Nor is there any discussion of the fact that, in principle, it is obvious that the Federal Office is involved in activities abroad. The Federal Government does not mention any specific circumstances that would lend credible substance to the claim that the Federal Office's proper functioning would be adversely affected. Based on the reasons put forward, the applicant was not therefore able to independently assess the plausibility of the Federal Government's refusal to answer the question.

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