The Ambivalence of Freedom of Information

Since the creation of rights to free access to environmental information
25 years ago, European and German freedom of information law hasdeveloped
into a sophisticated field of differentiated legislation and filigree jurisprudence.
Nonetheless, the conceptual objectives of statutory entitlements remain
colourful. In principle, there are two different paths to justify freedom ofinformation in constitutional theory and legal doctrine. One concept stresses
the democratic function, another the function to promote the rule of law. The
democratic justification grounds in the idea that free information furthers
deliberation of the citizens in a free society and enables political choice of
the members of a body politic. This theoretical concept is coherently
substantiated and in conformity with basic requirements of a democratic
process, as long as information rights are equally vested in all citizens.
Nevertheless, the democratic justification remains highly abstract and does
not correspond to the social and administrative practice. A more practical
approach refers to the function of freedom of information to put the
administrative branch under public control and insofar support the rule of
law.
Despite positive effects on the administrative process, freedom of
information can also adverselyinfluence the democratic and administrative
process. First, freedom of information can unhinge the informational
limitations, under which public authorities are intentionally placed. The fine
balance of public informational interests and individual freedom rights behind
the statutory framework can be underrun if information spreads uncontrolled.
Second, freedom of information can disturb the formalized formation of will
within the institutions of representative democracy and the de-politicized
administrative procedure, which are both constitutional values of crucial
importance in a liberal democracy. Ruling as the result of collective freedom
needs power to rule, and there is no free society with weak political
institutions. Thus, it would be counterproductive to lopsidedly optimize the
freedom of information without sufficient protection of the administrative and
democratic-politic process.