Ministerielle Amtsverschwiegenheit vs. ressortbezogene Informationshoheit? Grundsätzliche Überlegungen aus Anlass des »Falls Friedrich«

Following the elections to the German Bundestag, the Federal Minister of the Interior Hans-Peter Friedrich (CSU) informed Sigmar Gabriel as the party chairman of the future coalition partner SPD that the name of Sebastian Edathy had come up in connection with a criminal investigation. Public opinion quickly adjudged that by doing so he had breached his duty of confidentiality (§ 6 BMinG and § 353b StGB). Irrespective of the legal judgement of the case, the incident raised the question of whether a minister who has acquired information in an official capacity is at liberty to use that information at his discretion or whether he must obtain prior permission from the cabinet before doing so. An analysis of the historical development of the official secrecy law since the 18th century on the one hand and the constitutional position occupied by members of the government under the Grundgesetz on the other will show that each individual minister is in principle free within the parameters of his portfolio to decide how to use the information he has acquired.