Just a few weeks ago, in our article „Update on the IFG: The Freedom of Information Act under scrutiny: Initial Insights into Case Law on Section 11 of the Freedom of Information Act“, discussed the exclusion of internal municipal appeals within the municipality’s own sphere of activity under Section 11(2) of the „Freedom of Information Act“ (Federal Law Gazette 5/2024, as amended by Federal Law Gazette 52/2025; „IFG“) affirmed. The Constitutional Court has now confirmed this legal view in a constitutional review proceeding (Constitutional Court 24 June 2026, G 43/2026 et al.).

The Constitutional Court’s decision was based on several applications for a review of the constitutionality of legislation, brought by the Provincial Administrative Courts of Styria and Vorarlberg and grounded in Article 140(1)(1)(a) of the Federal Constitutional Act (B-VG). These applications, in turn, arose from proceedings in which local authorities had refused access to requested information within their own jurisdiction. The Provincial Administrative Courts questioned the constitutionality of Section 11(2) of the Freedom of Information Act (IFG), as they considered that the provision did not stipulate the exclusion of the intra-municipal appeal process with the clarity required under constitutional law.

The Constitutional Court considered these applications as unfounded. In his reasoning, he states that, whilst there is in principle a two-tier system of appeal in matters falling within the municipalities’ own sphere of competence pursuant to Article 118(4) of the Federal Constitutional Law (B-VG), this may be excluded by the legislature. Although such an exclusion must be clear and unambiguous, neither an explicit reference to Article 118(4), second sentence, of the Federal Constitutional Act nor the verbatim reproduction of the wording used therein is required.

In the view of the Constitutional Court, the exclusion of the intra-municipal appeal process already arises clearly as set out in the wording of Section 11(2) of the IFG. The provision stipulates that an appeal may be lodged with an administrative court against „such“ a decision. The term „such“ decision therefore refers to the decision by a body obliged to provide information, as referred to in Section 11(1) of the IFG. Pursuant to Section 3(2) of the Freedom of Information Act (IFG), a body obliged to provide information is that body within whose sphere of activity or remit the requested information falls, but not any appeal authority. An appeal decision issued following the exhaustion of internal municipal appeal procedures cannot therefore constitute „such“ a decision within the meaning of Section 11(2) of the Freedom of Information Act (IFG). The legislature thus makes it sufficiently clear that an internal municipal appeal process is excluded.

Furthermore, the Constitutional Court states that the shortened decision-making time limits provided for in the Freedom of Information Act (IFG) – which are intended to ensure a swift determination of whether, and if so in what manner, the information sought by the applicant is to be made available – also argue against the assumption of an internal municipal appeal process; such a system would, in fact, run counter to the aim of expediting proceedings.

The Constitutional Court therefore concludes that Section 11(2) of the Freedom of Information Act (IFG) provides for an internal municipal appeals procedure in matters falling within the municipalities’ own sphere of competence in in a manner that is constitutionally unobjectionable excludes. With this ruling, the Constitutional Court has now established legal certainty: in the case of decisions under Section 11 of the Freedom of Information Act (IFG) falling within the municipality’s own sphere of competence, there is no need to exhaust the internal municipal appeal process; legal redress is sought directly by lodging an appeal with the competent administrative court.