German spy agency must be more transparent, says court
September 18, 2019
For years, Germany's foreign intelligence agency (BND) has invited a select number of journalists for background briefing sessions — but those previously exclusive meetings are now set to change.
Germany's Federal Administrative Court ruled on Wednesday that journalists are allowed to ask the BND about the off-the-record talks and that the agency must disclose the dates of the discussions, the reporters who were invited and the topics that were discussed.
The intelligence agency does not, however, have to delve into the specifics of the content discussed, but can rather name "general topics" that were raised.
The court ruled that the BND "did not sufficiently explain" what public interests would be violated by disclosing the information.
"Providing this information does not create or significantly increase the risk of drawing conclusions about the work and the methods of the BND," the court said in its decision.
The case was brought by Jost Müller-Neuhof, a legal policy correspondent with the Berlin-based Der Tagesspiegel, after the BND denied his request for the information in the spring of 2017.
Müller-Neuhof, who was not part of the BND's selected circle of journalists, said he had a right to the information under press law and criticized the BND's "selective distribution of information."
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Consequences for government agencies
The legal team representing the intelligence agency defended the meetings, saying that the BND wasn't revealing any secrets during the off-the-record talks, the taz newspaper reported.
The background meetings typically involved some 30 personally invited journalists who were not allowed to quote the agency afterward.
Diplomatic problems could arise, however, if a journalist were to list the BND as the source behind an assessment of certain developments abroad.
Müller-Neuhof argued that since the BND rarely holds public press conferences, the contents of its exclusive background discussions needed to be made more transparent.
"If the content isn't confidential, why should the circumstances of the meeting remain secret?" Remo Klinger, the lawyer representing the journalist, told the court last week.
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Journalists affected?
Wednesday's ruling had been watched closely by both journalists and government agencies, as it could have a massive effect on the way public agencies carry out their work with the press.
If the intelligence agency and other public bodies are required to give out information from their background talks with journalists, it could lead to briefings being stopped altogether, the BND's legal team argued.
That would effectively cut off a source of information for journalists looking for important analysis or information for them to further research.
Hendrik Zörner, the press spokesperson with the German Federation of Journalists (DJV), hailed Wednesday's decision as an "important step" for journalists, adding that ending the practice of off-the-record briefings is not necessarily a bad thing.
"The BND and other public agencies must take a more head-on and more transparent approach when it comes to providing information," he told DW.
Despite concerns about how public agencies will proceed, Müller-Neuhof told Die Zeit that he thinks it is unlikely they will do away with background briefings.
"The state will always have an interest in making its topics public," he told the paper.