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[liberationtech] Hamburg’s Transparency Law to open government more than ever

ilf ilf at
Mon Jun 25 07:09:43 PDT 2012

The Beatles played their first concert in Hamburg. Hamburg’s harbour is 
one of Europe’s largest. Now Hamburg, one of Germany’s 16 federal 
states, also has one of the world’s best transparency laws. Passed in 
mid-June, the new law sets a precedent that might resonate in the 
worldwide open government community.

The new 10-page Hamburg Transparency Law, was  passed through the 
parliament of city-state Hamburg with the support of all political 
parties. Observers rubbed their eyes since the legal implications are 
enormous. The law is so much more far-reaching than the most advanced 
information of freedom laws at national level.

Activism and popular demand for transparency made the legal innovation 

When three civil society groups teamed up last summer to fight for more 
transparency in Hamburg, there was little in the way of funding, legal 
support, or political backing for introducing such a new law.

This did not stop the Hamburg sections of Transparency International 
Germany, More Democracy (Germany’s leading NGO for citizens rights and 
participation) and the Chaos Computer Club (one of the oldest and 
biggest hacker organisations).

> “We initiators all agreed that we can only reach our goal if everybody 
> contributes its specific expertise” - Gerd Leilich, head of the 
> Hamburg regional group of Transparency International

The activists decided to mobilise public pressure for legislative 
change. In Hamburg, the law states  that a referendum can be triggered 
through a three-step process: first a people’s initiative, then a 
people’s request for vote, and then the actual people’s referendum. The 
people’s initiative started in October 2011.

Enough signatures were collected within the prescribed six weeks, and on 
December, 9th, 2011, global anti-corruption day, 15.000 signatures were 
handed to the Hamburg parliament, allowing the initiators to proceed to 
the second level of the referendum process.

In the meantime, the initiative, which had given itself the name 
Transparency creates Confidence, won an important supporter. The draft 
law, originally drafted in a public online forum or wiki in a matter of 
weeks, benefitted from the free legal advice of 78-year old former 
supreme court judge Jürgen Kühling, who improved the content, structure 
and wording.

According to the Hamburg law on referenda the parliament has the 
opportunity to start negotiations with the „people’s initatiors“. Over 
weeks, many meetings were held, many discussions led, and in the end the 
parliament decided to take over the law after some compromises had been 
reached. It was not only the majority of parliament but also the 
opposition parties who adopted the law. Some oppositions parties had 
already backed the „people’s initiative“ right from the start. The 
amazing victory happened.

Two factors helped the cause immensely.

Firstly, Hamburg’s previous government had lost a referendum just two 
years ago on schooling policy and this had been a painful experience for 
many politicians.

Secondly, the new Pirate Party entered four state parliaments in the 
last 18 months, running mainly under the header of “transparency” and 
putting a lot of pressure on the traditional parties regarding 
transparency and open government.

The most far reaching transparency law in Western Europe?

What makes the law special? It turns the principle of government 
openness upside down. The transparency law does not define a right to 
information for citizens but the obligation for the government to 
publish; without abolishing the right to information.

The law has created the legal obligation for the state government to 
publish all public data (private data, naturally, remains private) in an 
information register. (German speakers can read the law here)

The law addresses not only government and public authorities but also 
quasi-public bodies and private legal entities in which the city-state 
of Hamburg controls more than 50 per cent. The law specifically mentions 
publicly owned, private legal entities which provide basic services.

The issue of business secrets is dealt with in paragraph 7. It 
stipulates that legal entities, such as publicly owned companies, 
entering into agreements with the city state of Hamburg have to declare 
business secrets upfront and keep the documents separate. Of course the 
reasoning of these legal entities can be questioned in court.

The law enters into force three months after its publication in the 
statute books. The city-state then has two years to put the law in 
place. This means ensuring that all information about the city’s 
governance is available to the public in a machine readable format.

While we are still celebrating the victory, we realize that the work 
only begins. As in other countries, laws can be undermined by problems 
with implementation, technical challenges and administrative delay. 
Let’s hope that the Hamburg transparency law is not only of the best of 
such laws in the world on paper but also in reality.


Über 80 Millionen Deutsche benutzen keine Konsole. Klick dich nicht weg!
		-- Eine Initiative des Bundesamtes für Tastaturbenutzung
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