Legal – Illegal – Ganz egal? – Einige Bemerkungen zum Kohlakten-Urteil des Bundesverwaltungsgerichts –

With the so-called “Kohlakten-Urteil” of March 2023, the Federal Administrative Court (Bundesverwaltungsgericht) has put a provisional end to years of dispute over access to state information and files. However, the reasons for the decision rejecting the appeal by the journalist who brought the case prove to be unconvincing overall. In fact, the ruling rewards unlawful conduct by the executive. This concerns both a violation of the fundamental rights enshrined in Art. 5 Para. 1 Sentence 1 and Para. 3 Sentence 1 in conjunction with Art. 3 GG as well as a violation of the principle of the rule of law derived from Art. 20 Para. 3 GG. At the level of ordinary law, the decision also contains a misinterpretation of the relationship between the Federal Archives Act (Bundesarchivgesetz) and the Freedom of Information Act (Informationsfreiheitsgesetz), as is shown, among other things, on the basis of a comparative interpretation of the archive laws of the federal government and the federal states. At the same time, the article places the “Kohlakten-Urteil” in the wider context of recent constitutional and administrative court rulings concerning access to state records and information.