Hamburg’s Transparency Law to open government more than ever

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 possible

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).

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.

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”The support for the transparency law in the streets was huge. The main argument to sign was the cost explosion for the Elbphilharmonie, a local concert hall pictured above. People would love to see the treaties between the City and the construction company.” Gregor Hackmack, head of More Democracy Hamburg.

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.