Journalist A asked OFCOM for access to information on the 5G antennas of the three mobile network operators in Switzerland. The operators resisted unsuccessfully. In the conciliation procedure, the FDPIC came to the conclusion in its recommendation that the operators could not demonstrate any convincing interests worthy of protection in secrecy.
I. The facts of the case
On 3 March 2021, journalist A submitted an access request to the Federal Office of Communications (OFCOM) for a document containing information on 5G antennas. As the document contains business secrets and personal data, OFCOM had to hear the three mobile network operators in accordance with Art. 11 FCO, which is why the access procedure took longer. In their submissions, all three mobile network operators requested that A’s access application be rejected in its entirety, but in some cases on different grounds. Essentially, the following arguments were put forward:
- Access was to be denied because it could disclose professional or business secrets within the meaning of 7 para. 1 lit. g FoIA. According to the case law of the Federal Supreme Court, this covers information that could impair the commercial success of a company or distort competition if it were to become known to the competition. The summary of the data represented essential elements of the business and it was possible to use it to plan, copy or partially copy a provider’s network.
- Access was to be refused, as 7 para. 1 lit. h FoIA was fulfilled. It was information which had been voluntarily disclosed to OFCOM and whose confidentiality OFCOM had assured the operators in the 2005 agreement. Moreover, in this agreement, the data stored in the antenna database were expressly classified as business secrets.
- Access was to be refused, as 22 para. 2 GeoIV constituted an exception to Art. 4 lit. b FoIA.
- Subsidiary access was to be refused on the basis of the protection of personality rights under 7 para. 2 FoIA or Art. 9 para. 2 FoIA in conjunction with Art. 19 para. 1bis DPA. Art. 19 para. 1bis FADP, as the private interests outweighed the public interests.
OFCOM was not convinced by the operators’ comments, in particular the operators were not in a position to assert specific private interests in public access, which is why it informed the operators that it still intended to grant access to A, with some columns being blacked out. As a result, the operators gradually filed, one by one, a request for arbitration pursuant to Article 13 FoIA on Data Protection and Freedom of Information ( FDPIC ) with the Federal Data Protection and Information Commissioner (Commissioner). Ultimately, the journalist A. who requested access also did so. In the absence of conciliation, the Commissioner issued a recommendation based on Art. 14 FoIA. The four individual conciliation applications were dealt with in a joint recommendation due to the connection in content.
II. Substantive assessment
Since the entry into force of the Federal Act on Administrative Procedure in 2006, there has been a paradigm shift in the administration from the principle of secrecy to the principle of publicity (cf. Art. 6 FoIA on Administrative Procedure). Administrative activity is thus in principle public, i.e. without proof of a special interest, but is subject to a reservation of secrecy. This resulted in a reversal of the burden of proof, so that interests must be asserted that speak for exceptional secrecy and not vice versa. If a fact is exceptionally covered by the secrecy proviso, the authority must choose the most lenient form for the purposes of the principle of proportionality (e.g. complete denial of access would be disproportionate if the secrecy interests could be sufficiently taken into account by blacking out individual passages).
The three mobile phone providers claimed that granting access would violate their professional and business secrets within the meaning of Art. 7 para. 1 lit. g FoIA. According to the Federal Supreme Court, a secret is any fact related to the person holding the secret, which is neither public knowledge nor generally accessible, which the person holding the secret wishes to keep secret and in which the person holding the secret has a legitimate interest. However, only essential data is covered, which could lead to a distortion of the market and cause a competitive disadvantage for the party concerned if it were known to the competition. Ultimately, the decisive factor is not an abstract risk of danger, but proof of a concrete risk.
Two mobile network operators were unable to demonstrate a concrete risk. One mobile phone provider claimed that the data would allow conclusions to be drawn about the rollout strategy or optimisation. However, the Commissioner agreed with OFCOM’s view. It was questionable to what extent conclusions could still be drawn about the network construction strategy given the current expansion standard and the almost complete population coverage. The expansion today mainly concerns capacity and, not least, in some cases there is even joint use of antennas by the mobile providers.
The mobile network operators’ invocation of Art. 7 para. 1 lit. h FoIA the Media is also misguided. In order for this fact to be fulfilled, the following conditions must be met cumulatively: The information must have been communicated to the authority by a private person, the information must be voluntary, i.e. not within the scope of a legal or contractual obligation, and the confidentiality must have been granted upon explicit request. Most of the data in the database are provided on the basis of a legal obligation (this obligation results from the annex to the mobile phone licence), only two columns were provided voluntarily, but journalist A did not request access to them. The agreement between the mobile radio operators and OFCOM can also only be invoked to a limited extent. As this was concluded in 2005, it was still based on the principle of secrecy with the reservation of public access, which had become obsolete when the Federal Act on the Protection of Individuals with regard to the Processing of Personal Data came into force.
The invocation of Art. 22 para. 2 GeoIV is completely wrong. According to Art. 4 FoIA, more specific provisions are reserved for other federal laws. However, federal laws within the meaning of Art. 4 FoIA are so-called formal laws; the provision submitted is a provision in an ordinance (so-called substantive law); for lack of sufficient normative level, this submission is inapplicable.
Ultimately, the operators invoked the protection of their personal data pursuant to Art. 9 para. 2 FoIA in conjunction with Art. 19 para. 1bis DPA. Art. 19 para. 1bis FADP. The antenna database is intended to enable conclusions to be drawn about the operators. According to Art. 19 para. 1bis FADP, federal bodies may disclose information to the public ex officio (so-called active information) or on the basis of the Public Information Act (so-called passive information) within the framework of official information, even if this entails an impairment of the privacy of the persons concerned. According to lit. b of this provision, disclosure is permitted in particular if there is an overriding public interest. However, the impairment is only given from a certain materiality, i.e. minor impairments are not sufficient to assert an overriding private interest. In addition, according to case law, the need for protection of personal data of legal persons is lower than that of natural persons.
The mobile phone operators were unable to demonstrate either concrete private interests or an impairment of their privacy. Pursuant to Art. 6 para. 2 lit. c VBGÖ, the public interest in making data accessible prevails, in particular, if the persons concerned have a legal or factual relationship with an authority subject to the BGÖ, from which it derives significant advantages. The operators undoubtedly derive significant economic advantages from the licences granted.
The three mobile network operators did not succeed in asserting interests in the confidentiality of the data concerning their 5G antennas, or only in an unconvincing manner. All the arguments could be refuted by means of clear standards, which is why we believe the Commissioner was right to fully endorse OFCOM’s view.