Constitutional Court reviews legality of Austrian Freedom of Information Act
Is the Austrian Freedom of Information Act (Informationsfreiheitsgesetz – IFG) partially unconstitutional? The Regional Administrative Court of Styria has raised this question in a series of recent rulings. The court doubts that the procedural rules concerning municipalities are in line with the constitution. A ruling by the Constitutional Court overturning the contested provision would have far-reaching consequences.
What happened? In the case first published and analysed here (Regional Administrative Court of Styria, 17 February 2026, LVwG 90.25-632/2026), the applicant requested the disclosure of information regarding the electricity costs of a Styrian municipality. The mayor replied that this information was not available in the requested form, but that the electricity costs were shown in the municipality’s publicly accessible financial statements. The applicant then requested a formal decision on the refusal to provide information, against which she lodged an appeal with the Regional Administrative Court of Styria. During these proceedings, the court raised concerns regarding the constitutionality of a provision of the Austrian Freedom of Information Act (Informationsfreiheitsgesetz – IFG).
What is the issue? Essentially, the question is whether the so-called “intra-municipal appeal process” (innergemeindlicher Instanzenzug) has been effectively excluded by the Freedom of Information Act. If the mayor issues a decision within the municipality’s own sphere of competence, an appeal against this decision cannot be lodged immediately with an administrative court; instead, an appeal must first be lodged with a higher municipal body (usually the municipal council). Only against that body’s decision is an appeal to an administrative court admissible.
The lawmaker may exclude the intra-municipal appeal process, but it must do so explicitly. In legal literature and first-instance case law, there is yet no consensus as to whether, in the context of the Freedom of Information Act, an exclusion of the intra-municipal appeal process has been effected by Section 11 of the Freedom of Information Act. Proponents argue that the acceleration of proceedings intended by the lawmaker is only possible if the internal municipal appeal process is excluded. Opponents object that such an exclusion can only be made explicitly, and that the law lacks precisely this explicit provision. The Supreme Administrative Court has not yet ruled on this question – nor on the IFG in general.
What constitutional concerns does the court have? For the Regional Administrative Court, it is undisputed that the information sought (the municipality’s electricity costs and consumption) falls within the municipality’s own sphere of competence. Consequently, the question arises as to whether the intra-municipal appeal process has been successfully excluded by the Freedom of Information Act, as only in this case is the court competent to rule on the appeal. If, on the other hand, the internal municipal appeal process had not been excluded, the complainant would first have had to lodge an appeal with the municipal council. The appeal would have to be dismissed.
The court considers it unconstitutional that the legislature did not include an explicit provision in the Freedom of Information Act regarding the admissibility of the internal municipal appeal process. In particular, the court has reservations as to whether Section 11 of the Freedom of Information Act is compatible with the requirement enshrined in Article 118 of the Federal Constitutional Law (B-VG) that the exclusion of the internal municipal appeal procedure can only be made explicitly. Furthermore, the court is of the opinion that the constitutional requirement of specificity (Article 18 B-VG) is violated by the lack of clarity regarding the exclusion of the intra-municipal appeal process. Similarly, Section 11 of the Freedom of Information Act is alleged to infringe the constitutionally guaranteed right to a lawful judge (Article 83(2) B-VG), because the court’s jurisdiction is not sufficiently clear from the law. The Regional Administrative Court of Styria therefore sought the annulment of Section 11(2) of the Freedom of Information Act (or, in the alternative, also of paragraphs 1 and 3).
Remarkably, the court does not state definitively whether it considers the intra-municipal appeal process to be excluded. Rather, it regards the legal uncertainty regarding the question of whether the intra-municipal appeal process is excluded or not as unconstitutional. It remains to be seen whether the Constitutional Court shares these concerns.
What does a repeal by the Constitutional Court entail? The contested provision of Section 11(2) of the Freedom of Information Act contains rules designed to expedite proceedings. Should the Constitutional Court repeal the provision, this would result in longer proceedings. In such a case, the authority would have two months – instead of the current three weeks – to issue a preliminary decision on an appeal, and the administrative courts would have six months – instead of the current two months to decide on the matter. Even in the case of a complaint for failure to act, the permissible duration of proceedings would be extended by up to three months. In a nutshell: Repealing the contested provision would significantly slow down access to information.
In addition to the decision analysed here, the Regional Administrative Court of Styria has also submitted a request to the Constitutional Court for the repeal of Section 11(2) of the Freedom of Information Act (or, in the alternative, also paragraphs 1 and 3) in at least 14 further decisions based on similar grounds.
