In our article „The end of official secrecy ...“, we provided initial insights into the „Freedom of Information Act“ (Federal Law Gazette 5/2024 as amended by Federal Law Gazette 52/2025; „IFG“). Around nine months after it came into force, the first decisions of the administrative courts are now available, which show how requests for information are implemented in practice; however, a supreme court decision is still pending. The following article is dedicated to the case law on Section 11 IFG and the question of whether the local authorities have to go through the internal appeal process in their own sphere of activity.

This question is currently probably the most controversial legal issue in connection with the IFG. It has already been answered inconsistently in the literature:

Tailor is of the opinion that the systematic connection between § 11 para. 1 and para. 2 IFG could speak in favour of a statutory exclusion of the internal municipal appeal procedure: § 11 para. 1 IFG provides for the issuing of a decision in the event of refusal of access to information; § 11 para. 2 IFG is linked to this and assigns the decision on a complaint against such a decision directly to the administrative court; this speaks in favour of a direct possibility of appeal to the administrative court. The legislative materials, in particular the committee report, would also point in this direction (Schneider, IFG - Freedom of Information Act [2025] margin no. 22 to Section 11 IFG).

In contrast Miernicky against an exclusion of the internal municipal appeal procedure because this is not expressly waived in the IFG (Miernicky, IFG - Freedom of Information Act [2024] margin no. K17 on Section 11 IFG).

These divergences are now also reflected in the case law of the provincial administrative courts („LVwG“):

• In its ruling of 13 November 2025, KLVwG-1828/5/2025, the Carinthia Administrative Court came to the conclusion that an internal municipal appeal is excluded. It essentially justifies its decision by stating that the IFG is not an „ordinary“ substantive law within the meaning of Art 118 Para. 4 B-VG, but is based on a special constitutional basis (Art 22a Para. 4 Z 1 B-VG). This provision is considered lex specialis to Art 118 para 4 second sentence B-VG. The LVwG deduces from this that an internal municipal appeal procedure is excluded even without an express provision in the IFG if this is at least implicitly stated in the law. It also justified the decision with the aim of rapid and effective legal protection, in particular with regard to the short deadlines of Section 11 para. 2 IFG.
• This opinion is also shared by the Vienna Administrative Court („VGW“). In its ruling of 20 March 2026, VGW-113/077/2049/2026-5 *, the VGW also came to the conclusion that the internal municipal appeal process is excluded; this follows from the systematic context of Section 11 (1) and (2) IFG, which is why the provision must be interpreted in accordance with the constitution.

* In the case of which the institution required to provide information - nota bene - was excellently represented by a lawyer 😊.

• In its decision of 19 December 2025, LVwG-250257/6/KH/EP, the LVwG Upper Austria, on the other hand, assumes that the internal municipal appeal procedure must be followed. The LVwG essentially bases its decision on the fact that the federal legislator has not expressly made use of the possibility of excluding the internal municipal appeal procedure in the IFG.
• In its decision of 30 January 2026, E 301/14/2026.0002/002, the LVwG Burgenland also takes the view that the IFG does not exclude the right to appeal within the municipality.
• In view of the existing legal uncertainty with regard to the „unclear“ jurisdiction regulation of Section 11 IFG, the Styrian Administrative Court (decision of 17 February 2026, LVwG 90.25-632/2026) appealed to the Constitutional Court and requested that the provision be repealed as unconstitutional.

The inconsistency in the literature thus also continues in the case law. In our view, however, the better arguments speak in favour of for an exclusion of the internal municipal appeal procedure. In particular, it is clear from § 11 para. 1 IFG that a decision must be issued if access to information is not granted; § 11 para. 2 IFG stipulates that an appeal can be lodged against „such“ a decision and that the administrative court must decide on it. This is also confirmed by the materials (RV 2238, BlgNR XXVII. GP, 12). An appeal to the competent administrative court is therefore expressly provided for as a legal remedy against the decision refusing to provide information. In our view, this explicit designation of an appeal route excludes the admissibility of the internal municipal appeal procedure just as „explicitly“ as if this were to be done by the administrative court. expressis verbis would.

However, until final clarification by the Constitutional Court, the question of whether the internal municipal appeal procedure under Section 11 IFG is actually excluded remains subject to considerable legal uncertainty. It therefore seems advisable to lodge an appeal (as a rule) to the municipal council or city senate as well as a complaint to the competent administrative court. If a conflict of jurisdiction then arises - for example because both the administrative court and the municipal council or city senate affirm or deny their jurisdiction - the Constitutional Court must decide on jurisdiction in accordance with Art. 138 Para. 1 B-VG.

Until final clarification of the issue by the Constitutional Court, it is therefore advisable to proceed in parallel so as not to risk missing the deadline.