DLA Piper represents Spiegel on information access request

DLA Piper has represented SPIEGEL, publisher of the news magazine „DER SPIEGEL“, in two proceedings before the Federal Administrative Court (BVerwG). These proceedings concerned pending lawsuits before the BVerwG in which the SPIEGEL is seeking information from the German Federal Intelligence Service (BND) on the so-called SPIEGEL affair of 1962.

SPIEGEL publishing house has requested information on, among other things, which intelligence sources of the BND existed before, during and after the SPIEGEL affair. In particular, the corresponding names as well as the scope, quality and motivation for cooperation with the BND are to be clarified. The lawsuits are based on the right to information under press law pursuant to Article 5 (1) sentence 2 of the German constitutional law (Grundgesetz) and the right of use under archiving law pursuant to the Federal Archives Act. The BND had refused to provide information and to allow full (unredacted) access to archive material held by the BND, citing confidentiality interests worthy of protection, particularly reasons of state welfare.

The 6th Senate of the BVerwG has now referred a central fundamental legal question concerning the right of access and use to the Grand Senate of the BVerwG for final clarification. Specifically, it concerns the scope of the protection of sources in the case of deceased informants, which is justified in the interest of the state and which the BND relies on. The submission was preceded by the declared intention of the 6th Senate to deviate from the previous opinion of the BVerwG's Specialized Senate (Fachsenat) in favor of the SPIEGEL publishing house. The Specialized Senate had previously viewed the documents requested by SPIEGEL publishing house in a so-called „in camera“ procedure and had come to the conclusion that the BND's refusal was at least partially unlawful.

The 6th Senate now submitted the legal question to the Grand Senate for a decision: „Do reasons of state welfare justify extending the protection of the identity of intelligence service informants in cases concluded decades ago to a period of about 30 years beyond their death, if such persons do not belong to the circle of Nazi perpetrators or have not themselves committed serious, in particular terrorist, crimes? “ If the case law of the Specialized Senate rejected by the 6th Senate were to be applied, the presentation requirements for an overriding interest in the protection of secrets would be higher. The clarification of this legal question will also determine whether further documents or information are to be released to the SPIEGEL publishing house.

The Grand Senate, which generally consists of ten members (the President of the BVerwG and one judge from each of the other nine appeal senates), only makes decisions in exceptional cases. It decides on fundamental legal issues and in the event of disagreement between individual senates of the BVerwG. Further proceedings of other claimants pending before the 6th Senate have been suspended by the latter until a decision of the Grand Senate in the current proceedings has been made.

The litigation team for SPIEGEL-Verlag consisted of partner Dr Michael Stulz-Herrnstadt and senior associate Fabian Jeschke (both Public Commercial Law/Media Law, Hamburg).