Transparency and access to information - the Austrian example

Austria has practised open egovernance and eadministration for some long time. The city of Vienna acts as controller of information access in specific areas. The rules are that data shall be used only for explicit and legitimate purposes inline with an agreed legal basis. There is no charge for accessing one’s own data providing this is done within a short period of eight weeks. Criminal prosecution rules differ. The document ends with links to further information in English.

Vienna is both a city and a federal province. The mayor of Vienna is at the same time governor of the province, while the City Council also acts as provincial government. Thus it appears that the Vienna City Administration (Magistrat der Stadt Wien) has a huge scope of duties and responsibilities. Due to that fact various data applications (EDP), all in all 266 but an increasing number, are being operated by the Vienna City Administration as a controller (§ 4 Z 4 Datenschutzgesetz 2000 - DSG 2000, BGBl. I Nr. 165/1999 idF BGBl. I Nr. 13/2005 - Sect. 4 sub-para. 4 Federal Act Concerning the Protection of Personal Data, Federal Law Gazette I No. 165/1999, most recent amendment: Federal Law Gazette I No. 13/2005).

They are each consisting of up to 500 categories of data, up to 15 categories of data subjects and up to 30 categories of recipients. Data shall be used only for specific, explicit and legitimate purposes i.e. for all kinds of operations with data for each category and purpose there must be a legal basis. For transmissions the recipient has satisfactorily to demonstrate his statutory competence or legitimate authority with regard to the purpose of the transmission. In this connexion it is obviously beyond our power to answer Your questions for each isolated case of transmission.

Every data subject has the right to get information from the controller - at no charge and within eight weeks - about the data being processed and relating to him (§ 26 DSG 2000) including the processed data, the available information about their origin, the recipients or categories of recipients of transmissions, the purpose of the use of data as well as its legal basis in an intelligible form. Furthermore a register for data applications is established with the Data Protection Commission for the purpose of examining their legality and in order to inform the data subjects.

In the Vienna City Administration any decision whether data transmission will take place or not is made by the head of department which is operating the data application. Nonetheless both the CEO and the Mayor have the right to overrule any decision of the departments.

Your example about criminal prosecution: There are mainly three types of data transmission for criminal prosecution:

1) According to § 84 Abs. 1 Strafprozessordnung 1975 (StPO), BGBl. Nr. 631/1975 (Sect. 84 para.1 of the Code of Criminal Procedure, Federal Law Gazette No. 631/1975) every authority is obliged to lodge complaints of criminal offences taking place within their sphere of competence.

2) According to Art. 22Bundes-Verfassungsgesetz (B-VG), BGBl. Nr. 1/1930 (Federal Constitutional Law, Federal Law Gazette No. 1/1930) all authorities of the Federation, the Laender (provinces) and the municipalities are bound within the framework of their legal sphere of competence to render each other mutual assistance.

According to § 26 StPO Criminal Courts are entitled to contact directly all other administrative offices having a right to access records including data transmission unless such an access is prohibited specifically by law.

3) According to § 149i to 149l StPO all controllers are obliged to give access to their data applications to the federal prosecutor in case of indictable offences. A warrant of a High Judge is necessary.

I’d like to emphasise, that the Vienna City Administration itself is not carrying out any dragnet investigation.

All Austrian laws - including all kinds of amendments - are available on the internet free of cost: http://www.ris.bka.gv.at/bundesrecht/ (German only, English instructions for use: http://www.ris.bka.gv.at/info/english.html)