Are private social media messages to be considered as “Official Information”?

Let´s have a look at this German Tribunal Decision (BVerwG, Judgement from 28.10.2021 – 10 C 3.20)

The plaintiff operates an internet site and seeks access to Twitter direct messages of the BMI. Twitter direct messages make it possible to communicate without other users being able to read the messages. During the period in question (2016 – 2018), the BMI used the direct messages function for informal communication. This included, among other things, making appointments, sending quick messages for citizens’ enquiries, for example concerning typing and linking errors, or journalists asking about the responsible persons in such a matter. The direct messages are not stored at the BMI itself; however, they can be retrieved by the BMI from Twitter Inc.

The Federal Ministry stated that direct messages were not relevant to the file and therefore did not constitute any kind of official information. The Administrative Court upheld the claim. The concept of official information was to be interpreted broadly and did not include information which served exclusively private (personal) purposes.

As a matter of fact, official information presupposes that its recording serves official purposes. With this definition, the legislature requires a certain finality of the recording. However, this is not the case for messages which do not give cause to create an administrative process due to their minor relevance in terms of content. The storage is carried out by Twitter Inc. according to its business model.

Under the Freedom of Information Act, there is no right to inspect Twitter direct messages received and sent by the Federal Ministry of the Interior, for Construction and Home Affairs (BMI) in the years 2016 to 2018.

 

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