Access to files in and outside administrative procedures Unfortunately this specification of service has not yet been completely translated.
The question of the extent to which a citizen can inspect the files kept by an authority arises, in particular, where a citizen, in an administrative procedure concerning him or her, wants to clarify the facts of a authority of its decision or what legal options are available to it. As far as access to files leading to an ongoing procedure is concerned, this right of access to the file is generally governed by Section 29 of the Hessian Administrative Procedure Act (HVwVfG). In addition to this general rule, however, there are also a large number of specific rules which, for individual areas, regulate, in whole or in part, the right of access to files in whole or in part. For reasons of clarity, it is not possible to go into more detail about these special regulations. A citizen may also apply for access to the file outside of an ongoing administrative procedure. However, the file authority then decides, at its discretion, to grant access to the file. In that regard, a citizen is entitled to a decision on an application for access without any error of measure, in so far as he claims a legitimate interest in access to the file. The following is a focus on access to files relating to an ongoing procedure. This case is also of particular interest in administrative practice.
As a general rule, the person or parties to an administrative procedure will not have to submit any further documents if access to the file is requested for an ongoing procedure, since he/she is known to the Authority as a party to the proceedings. However, it may be necessary, in individual cases, to explain to what extent the access sought to the file is necessary in order to assert or defend the legal interests. On the other hand, it is different in cases where access to files is sought without this being done in the context of an ongoing administrative procedure. In this case, the person requesting access to the file must demonstrate his legitimate interest vis-a-vis the authorities in the file.
The right of access to the file exists for those involved in an administrative procedure. These are mainly: Applicant Defendant Addressees of an administrative act Contractual partner of a public-law contract The right of access to the file relates only to the files relating to the proceedings and only to the extent that their knowledge is necessary for the assertion or defence of the legal interests of the parties. In the context of an administrative procedure, the right of access to the file does not include draft decisions and the work on their immediate preparation until the administrative procedure is completed. The authority is not obliged to grant access to the file insofar as: access to the file impairs the proper performance of the authority's tasks, disclosure of the contents of the files would be detrimental to the benefit of the Confederation or of a Land, or transactions by law or by their very nature, in particular because of the legitimate interests of the parties or third parties. Confidentiality due to legal regulations or legitimate interests of a third party results in particular from tax secrecy, social secrecy, data protection and the fact that business and trade secrets must be protected. Similarly, secrecy is inherently subject to the private and intimate spheres of third-party private persons. This usually includes, for example, information on income and wealth, family circumstances or medical reports.
General rules Section 29 of the Hessian Administrative Procedure Act (HVwVfG) Nos 113 and 21 of the administrative costs register to Section 1 of the General Administrative Costs Regulations (AllgVwKostO) Special regulations (example) Section 72 (1) Hessian Administrative Procedure Act (HVwVfG) Section 25 Tenth Book of the Social Code (SGB X) Hessian Environmental Information Act (HUIG )
- Nr. 113 und 21 des Verwaltungskostenverzeichnisses zu § 1 der Allgemeinen Verwaltungskostenordnung (AllgVwKostO)
- § 25 Zehntes Buch Sozialgesetzbuch (SGB X)
- Hessisches Umweltinformationsgesetz (HUIG)
- § 29 des Hessischen Verwaltungsverfahrensgesetzes (HVwVfG)
- § 72 Abs. 1 Hessisches Verwaltungsverfahrensgesetz (HVwVfG)
In principle, access to the file must be made by the file-keeping authority. The party must therefore go to the relevant authority. The application is informal and possible without notice. The Authority may determine that access to the file shall be granted only in the presence of a supervisory representative of the Authority. There is no right to access the file without the presence of a supervisor. Similarly, in individual cases, the Authority may, at its discretion, also allow access to the file in another place (e.g. if a party resides at a distance from the registered office). The file may then be sent to another authority at the request of the party concerned and must be inspected. If necessary, access to the file may also be made at a diplomatic or consular representation of the Federal Republic of Germany abroad. Where a lawyer is involved and authorised in respect of that procedure on the part of the party to an administrative procedure, the same shall apply to the latter, as regards the latter, that access to the file shall be made to the authority. However, the authority may, at its discretion, exceptionally determine that a lawyer may also be allowed to take the files to his office or that the files are sent there. However, there is no right to release the files. Overall, the Authority may, at its discretion, determine the manner in which the file is inspected. In particular, the Authority may also determine the date of access to the file. However, access to the file must be granted under reasonable conditions. Access to the file includes not only documents, but also all other documents relating to a specific procedure (e.g. plans, photographs, maps or other data carriers). Inspection of files does not just mean inspection. On the contrary, access to the file can often only be useful, particularly in the case of extensive files relating to a procedure, if the party is given the opportunity to produce copies or photographs of the contents of the file. In proceedings involving uniform submissions or in proceedings involving more than 50 persons in the same interest, only their representatives shall have the right of access to the file, provided that representation takes place in such cases.