Concept and significance of official secrecy
Die Official secrecy is a legally regulated duty to maintain confidentiality regarding facts that have become officially known. It obligates officeholders not to disclose official secrets or information entrusted to or made accessible to them in the course of their duties without authorization. The regulation is intended to strengthen trust in the administration, safeguard the integrity of the public service, and uphold the principles of the rule of law.
Legal basis of official secrecy
Germany
Anchoring in federal law
In Germany, official secrecy is anchored in various legal norms, particularly in the Civil Servants Status Act (BeamtStG) (§ 37), in the Federal Civil Servants Act (BBG) (§ 67) and in the respective state civil servant laws. Further regulations arise from service law provisions as well as specific confidentiality laws, such as the Criminal Code (StGB, § 353b – Violation of official secrets and a special duty of confidentiality).
Group of obligated persons
The obligation of official secrecy applies to civil servants, public sector employees, judges, soldiers, and other persons who have been expressly obligated to secrecy. This obligation continues to exist even after leaving the service.
Content of the duty of secrecy
The duty of secrecy extends to all matters that become known in the performance of official duties and are not obvious or insignificant in their meaning. This also includes personal data, state secrets, internal processes, and matters of particular public interest.
Austria
In Austria, official secrecy is constitutionally regulated by Art. 20 para. 3 of the Federal Constitutional Law (B-VG). It applies to organs of the federal government, the states and municipalities as well as all other holders of public duties. The obligation encompasses all confidentiality obligations arising from special legal regulations, for example from data protection law.
Switzerland
In Switzerland, official secrecy is regulated by the Criminal Code (Art. 320 StGB). The duty applies to civil servants, judges, and other public officials as well as private persons involved in the performance of a public function. Here too, the obligation generally continues beyond active service.
Limits and exceptions to official secrecy
Legal limitations
The duty of official secrecy is in tension with other legal positions, in particular the public’s right to information and the rights of the individuals concerned. Essential legally defined exceptions exist in particular through:
- das Freedom of Information Act (IFG)
- das Press Law
- die Data transfer within the scope of administrative assistance
- release from the duty of secrecy by superiors or by the duty of disclosure under other legal provisions (e.g., in the context of criminal proceedings)
Criminal law exceptions
Disclosure may be permissible and even required under certain circumstances – for example, to avert serious crimes (state of emergency) or as a result of court-ordered testimony by judicial order. In such cases, a balance must be struck between confidentiality interests and other legal interests.
Sanctions for breach of official secrecy
The unauthorized disclosure of official secrets generally constitutes a breach of official duty and may have both disciplinary and criminal consequences.
Disciplinary consequences
Violations may result in measures such as reprimand, fines, reduction of salary, or even dismissal from the public service. This depends on the severity of the breach and the applicable service law provisions.
Criminal law sanctions
Das Criminal Code in particular provides for prison sentences or fines for breaches of official secrets in § 353b StGB (Germany), Art. 320 StGB (Switzerland), or § 310 StGB (Austria). Permanent removal from service is also possible.
Relation to the right to refuse testimony
The duty of official secrecy is closely related to the right to refuse to testify in court. Public officials may be obligated to testify in certain proceedings if they have previously been released from their duty of secrecy. Without such a release, they are generally not permitted to disclose information protected by official secrecy.
Practical significance and distinctions
Distinction from data protection
While official secrecy covers every non-obvious official information, data protection specifically concerns the protection of personal data. Both areas overlap but are regulated independently.
Public interest and transparency
Official secrecy often conflicts with the public’s interest in information. Modern transparency laws and freedom of information rights seek to strike a balance between confidentiality and public access.
Summary
Official secrecy is a central element of the public service and serves to safeguard the confidentiality, integrity, and functionality of state institutions. It is regulated by law, applies comprehensively to many public officials, and continues after termination of service. At the same time, it is subject to a balance with the rights of third parties and the public interest in transparency and information. Violations of official secrecy are strictly sanctioned and can have far-reaching consequences.
Frequently Asked Questions
When does official secrecy apply to public sector employees?
Official secrecy generally applies to all employees in the public sector, regardless of their employment status (civil servants, employees, or workers). The legal framework is found in the federal and state civil servant laws as well as, where applicable, in the respective state personnel representation laws. It begins with the commencement of official duties and generally does not end upon leaving service. Even after the end of the employment relationship, former staff members remain obliged to maintain secrecy regarding officially obtained knowledge. The scope of protection of official secrecy covers all facts that have become known in connection with official duties and whose confidentiality is required due to a legitimate public interest or to protect third parties. Release from the obligation to official secrecy is only legally permissible through an expressly responsible authority.
Are there exceptions to the obligation of official secrecy?
Yes, there are legally regulated exceptions to official secrecy. For example, disclosure of officially obtained information is permitted if there is a legal duty of disclosure (such as under the Criminal Code, reporting obligations for certain offences or under special legislation such as the Social Code or administrative procedure law). Disclosure may also be allowed if the responsible authority gives explicit approval or if the person whose secret is concerned gives written release from the duty of secrecy. In addition, in judicial proceedings, there may, in legally defined cases, be a right to give evidence to courts or investigative authorities, whereby in individual cases this must generally be authorized by an administrative statement of approval.
What are the legal consequences of a breach of official secrecy?
A breach of the duty of official secrecy can have both disciplinary and criminal consequences. Disciplinary measures may include reprimand, fines, reduction of salary, or even removal from service. In addition, § 353b of the German Criminal Code (StGB) regulates the violation of official secrets and a special duty of confidentiality; if committed intentionally, a custodial sentence of up to five years or a fine may be imposed. Negligent breaches can also be punished. Furthermore, civil claims for damages by affected persons are possible if a material or non-material damage can be proven.
To what information does the duty of official secrecy extend?
The obligation of official secrecy extends to all information and processes that become known to the employee in the course of their official duties and for which there is a legitimate interest in confidentiality. This includes administrative decisions, internal procedures, personnel matters, as well as personal data, trade and business secrets, and other sensitive information that could harm the authority or third parties. Conversely, information or matters that are publicly accessible or have been released by or on instructions of the competent authority are not subject to confidentiality.
To what extent does the duty of official secrecy conflict with the Freedom of Information Act (IFG)?
The Freedom of Information Act (IFG) generally grants citizens a legal right of access to official information. However, the duty of official secrecy may conflict with this right if interests of third parties worthy of protection or security-related concerns are involved. The IFG therefore provides numerous exceptions, which concern, for example, the protection of personal data, trade and business secrets, or internal government consultations (§§ 3-7 IFG). In these cases, official secrecy remains permissible and takes precedence over the right to information. The competent authorities must assess in each individual case whether and to what extent information may be disclosed without violating the duty of official secrecy.
May public employees disclose official information to external third parties?
Disclosure of official information to external third parties is generally prohibited unless there is an express statutory authorization or express written consent from the competent authority or the persons concerned has been obtained. Exceptions exist, for example, where authorities are obliged to cooperate (e.g., transfers to law enforcement agencies as part of investigations) or where the receipt of information occurs as part of a legally prescribed procedure. Each individual case should be carefully examined legally to avoid breaches of confidentiality obligations and resulting sanctions.
What is the significance of the duty of confidentiality in connection with court proceedings?
In court proceedings, public employees are generally obliged to testify, but they can invoke their duty of official secrecy. Testimony is only permissible once the competent authority, usually the superior or a legally designated authority, has previously released them from the duty of official secrecy. This applies to both criminal and civil proceedings. Release is generally granted if the public interest in the testimony outweighs and there are no overriding legitimate interests. However, permission to testify may be wholly or partly denied if the protection of essential public or private interests is expected to be put at risk.
