Classified Information

This doctoral project addresses the conflict between executive secrecy and transparency, focusing on classified information retained by German administra­tive authorities as a key mechanism for limiting access to state opera­tions. The challenges of classified information are numerous. The legal basis to classifica­tion is fragmentary; its application remains largely beyond public scrutiny; and its implications are mainly unexplored. Especially striking is the lack of precision found in the German Parliamentary provision defining the various levels of classifica­tion. Given that the competence to specify the prerequisites of classification – materially and procedurally – is de­volved to the executive branch itself, the legal basis to classifying information would appear to lack democratic legitimacy. Similar concerns are reflected in the scholarly literature. Not only has a comprehensive doctrinal analysis of existing regulations on classified information not yet been undertaken, but even areas of law directly affected by classification lack in-depth scholarly treatment.
In response, this project aims to critically examine the effects that classifying information has upon different areas of German law. Relying on a mix of statutory interpretation and doctrinal methods, it aspires to determine the pre­cise legal nature of the act of classification, and to assess whether it constitutes an encroachment on the freedom of information as guaranteed by Art 5 Para 1 Sentence 1 Alt 2 of the German constitution. Additionally, the project will address the possibility of deriving from the constitution a direct right to access administrative information, and elaborate on the importance and feasibility of reducing prevailing institutional and administrative barriers to such informational access.
Among the project’s many research outcomes, carefully-tailored law reform recommendations will be made in an effort to achieve clearer and more effective classification requirements. Evidencing the Department of Public Law’s research commitments to doctrinal fundamentals and resolving challenges to fundamental rights and demo­cratic theory, it is expected that by enhancing the reviewability of administrative decisions, this project will con­trib­ute to decreasing the depth of secrecy in the German executive branch and strengthening democratic oversight of government conduct.