Court case LVwG-352-2/2025-R12 – Court Ruling (Austria, 2025)

A journalist requested information from the Vorarlberg State Government (the controller) under the Vorarlberg Freedom of Information Act regarding the locations of election posters and digital election advertising displays used by political parties for the next state election. Under Article 1c(2) of the Vorarlberg Political Party Promotion Act (PFG), political parties were legally required to notify the state government of the locations used for election posters or digital election advertising displays. The journalist stated that the purpose of the information request was to compare the poster locations reported by political parties with a photographic documentation of actual poster locations prepared by several editors of their media outlet. The controller refused this request on data protection grounds. It argued that the map showing election poster locations and the addresses in their descriptions involved special categories of personal data under Article 9 GDPR, as these data could reveal the political opinions of the property owners associated with the respective addresses. The controller also stated that no exemption under Article 9(2) GDPR applied in this case. Additionally, the controller stated that disclosure was not permissible due to the absence of a legal basis. The controller argued that the interest in confidentiality of special categories of personal data prevailed, especially since there was no necessity for the requested information to exercise freedom of expression in accordance with Article 10 of the European Convention on Human Rights (ECHR). The journalist appealed the decision to the Provincial Administrative Court (LVwG) of Vorarlberg. They argued that the intention behind their information request was to determine the geographical focus of the election campaign by assessing the poster locations and had no intention of using the requested data to attribute political views to individuals or entities. The journalist contended that it was in the public interest to know which party aimed to target voters more intensively at specific locations and that the controller failed to reconcile the data protection aspects with the right of freedom of expression and information. They argued that the location of an election poster or a digital election advertising display alone is not enough to infer a close political affiliation of the property owner with a political party. The journalist also claimed that the decision had not examined whether partial information not relating to natural persons, such as poster locations on public roads or other public transportation areas, could have been disclosed. The court accepted that the journalist acted as a “public watchdog” and sought the information for journalistic purposes. Regarding the locations of election posters submitted by political parties, the court held that, where the locations concerned property owners who were natural persons, the information allowed inferences about their political opinions. It reasoned that it would generally be contrary to common experience for a property owner to permit a poster for a party with which they did not have at least some positive political affinity. It determined that the data could be classified as information about political opinions if the data allowed someone to draw such conclusions, even if only as a presumption. It therefore stated that the processing of location data from political parties’ election posters constituted processing of special categories of personal data under Article 9(1) GDPR. The court also noted it was not decisive for this that the journalist’s stated intention was not to attribute political opinions to individuals or entities. Furthermore, the court examined whether any exceptions under Article 9(2) GDPR could apply in this case. It considered the exception for data manifestly made public by the data subject pursuant to Article 9(2)(e) GDPR and the exception for substantial public interest pursuant to Article 9(2)(g) GDPR. The court rejected the application of Article 9(2)(e) GDPR. It held that the mere fact that election posters were visible in public did not mean that the property owners themselves had manifestly made public information allowing an inference, even a presumed one, about their political opinions. Moreover, it determined that there was no legal basis that would allow the disclosure of the locations of election posters. The court held that the PFG did not permit disclosure beyond the designated public bodies and that the Vorarlberg Freedom of Information Act lacked the necessary specificity to provide a legal basis under Article 9(2)(g) GDPR. Accordingly, the court concluded that neither of the exceptions applied. In addition, the court determined that the public interest in disclosing the specific poster locations did not outweigh the affected individuals’ right to data protection. It noted that the journalist's interest in knowing where political parties intended to target voters more intensely was not considered an overriding public interest and did not significantly improve democratic oversight or political transparency. The court further addressed the possibility of partial disclosure in relation to locations not associated with natural persons. It found that the State Government did not have ready and available information identifying which of the approximately 2,700 addresses were linked to natural persons and which to legal persons. The court noted that the State Government was not required to carry out further inquiries in order to provide a partial response. It concluded that therefore a response limited to addresses attributable to legal persons was not possible. The court further stated that such a limited disclosure would not have satisfied the journalist’s asserted interest.