Victory for transparency: Foreign Ministry must release Baerbock's SMS messages

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The Foreign Ministry must disclose text messages from former Federal Foreign Minister Annalena Baerbock, with which the Green Party politician sought approval from other countries for a UN resolution. The Berlin Administrative Court ruled this after a lawsuit by the transparency platform "Frag den Staat" (Case No.: VG 2 K 3/24).

In its decision, the court clarified that official SMS messages are to be classified as official information if they have objective relevance to the file.

Milestone for Transparency

The ruling marks a milestone for the right to access documents in Germany: for the first time, judges have obliged a federal authority to directly release smartphone messages under the federal Freedom of Information Act (IFG).

The Foreign Ministry initially rejected "Frag den Staat's" request in 2023, arguing that mobile data was generally not "worthy of archiving." Relevant content would be recorded in separate memos anyway.

The Berlin judges disagreed: the exact wording of the messages, in particular, holds significant informational value in the diplomatic context. Therefore, a summary in ancillary files is not sufficient.

The Administrative Court granted the Foreign Ministry only minimal editorial redactions: to protect international relations, the names of the addressees from Senegal, Ethiopia, Nigeria, and Brazil, as well as the country-specific adapted designations for the Russian war of aggression, may be blacked out.

Government Practice Under Scrutiny

In administrative practice, requests for information access have so far failed almost without exception because SMS messages were deleted or concealed, as the freedom of information commissioners at federal and state levels have long complained. Ministries and authorities were happy to fall back on the argument that text messages were prohibited for official communication anyway. Therefore, such data should not even exist.

In the current case, however, denying the existence of the messages was impossible, as media had already reported on the specific messages. The Foreign Ministry finally had to admit in the proceedings that sending SMS messages had been officially approved here after an internal risk assessment.

Official communication via messenger is generally no longer an exception in political daily life. Direct digital arrangements are common, especially at the ministerial leadership levels, bypassing the traditional system of record-keeping.

Since there are no binding legal provisions for the systematic recording and archiving of digital communications, transparency initiatives have been calling for reform for years. As long as text messages remain informal, their existence is difficult for outsiders to prove.

Persistence Needed

Previous lawsuits by "Frag den Staat," for example, concerning WhatsApp logs from former Transport Minister Andreas Scheuer, SMS exchanges from Angela Merkel, or messages from former Foreign Minister Heiko Maas on the troop withdrawal from Afghanistan regularly failed because the data had already been deleted or the courts followed the authorities' references to restrictive internal usage bans and an unofficial communication character.

That a trend reversal is occurring was recently shown in the proceedings concerning the Federal Ministry of Education under Bettina Stark-Watzinger and the service Wire used by her. Here, activists were able to obtain a preliminary deletion freeze by urgent procedure.

(afl)