Switzerland: Mar Menor FOI Request to the Federal Office of Justice

Summary

On 15 August 2025, the Mar Menor saltwater lagoon in Spain submitted a freedom of information request to the Swiss Federal Office of Justice (FOJ) under Article 6(1) of the Federal Act on Freedom of Information in the Administration (FoIA), Article 4 of the Aarhus-Convention, and Article 10 of the European Convention on Human Rights (ECHR). The request was filed via its legal representative, a Spanish association acting on behalf of the Mar Menor ecosystem—which was recognized with personhood in Spain following the Mar Menor Act of 2022.

The ecosystem sought access to:
• Documents concerning Switzerland’s compliance with international law obligations on climate protection and the promotion of biodiversity (Paris Agreement; Ramsar Convention on Wetlands; Convention on Biological Diversity; Kunming-Montreal Global Biodiversity Framework; the ECHR)
• Documents assisting Mar Menor to enforce its rights in Switzerland pursuant to the Mar Menor Act (private international law: recognition of foreign legal persons; international legal assistance: criminal, civil and administrative matters)

Legal Process
The FOJ informed the legal representative that the request was overly broad, and in order to process it, required the lagoon to specify the documents it sought. Once specified, the FOJ intended to estimate the workload and provide a cost estimate.

Mar Menor complied, and took note that the FOJ intended to collect fees from the lagoon. However, Mar Menor argued that before issuing a cost estimate, the FOJ must first recognize the ecosystem as a foreign legal person and subject of law.

The FOJ responded that under Swiss FoIA, any person – in the FOJ’s view, the term ‘person’ refers to natural persons – may request access to official documents. Since no special eligibility is required, the FOJ did not consider it necessary to determine whether Mar Menor has legal personality. The FOJ also found that the specifications provided by Mar Menor were not precise enough, and informed that the request could still not be accommodated. To ensure that the request of the saltwater lagoon was considered in the best possible way, the FOJ reviewed at least its document management system using “Mar Menor” as a reference. Nevertheless, FOJ denied access to documents related to Mar Menor and a case before the European Court of Human Rights – since Article 4(b) FoIA and Article 40(2) ECHR excludes such proceedings from the scope of the Act – and stated that access to these documents is determined by the ECHR.

Mediation Procedure
After email exchanges failed to resolve the matter, Mar Menor requested mediation from the Federal Data Protection and Information Commissioner (FDPIC) on 5 September 2025.

On 14 November 2025, the FDPIC formally stated it could not enter into mediation because the FOJ had not determined whether Mar Menor was regarded as the person submitting the request and had left open the question of whether Mar Menor qualifies as a “person” within the meaning of Article 6 (1) FoIA. The FDPIC criticized the FOJ’s handling of the information request, noting that the question of whether an access request is submitted by a natural or legal person must be clarified by the competent authority during the access request procedure, as this is a prerequisite for the right of access under Article 6 FoIA. Without this clarification, FDPIC was unable to determine who participated in the preliminary procedure and therefore could not verify whether the conditions for a mediation request under Article 13 FoIA were met. No mediation procedure took place, and no recommendation was issued.

In December 2025, Mar Menor emphasized that the FOJ had not fully established the relevant facts, and argued that this prevented proper handling of its mediation request and amounted to a denial of its rights to a fair procedure and effective remedy under Article 29a BV and Article 6(1) ECHR.

FOJ reiterated on 19 December 2025 and 14 January 2026, that it did not agree with the position of the FDPIC, maintaining that the identity of the requesting party is legally irrelevant under FoIA, and noted that even anonymous requests are processed. The FOJ stressed it is not responsible for acknowledging the legal personality of Mar Menor. Despite Mar Menor’s objections, the FOJ maintained its position, confirming that it would neither determine the applicant of the FOI request nor issue a ruling.

Key Challenge
Mar Menor’s legal representative argued that this creates a circular problem: because the FOJ does not establish the applicant, the FDPIC will not enter into a mediation procedure; without mediation, no recommendation will be issued; and without a recommendation, the FOJ will not issue a ruling under Article 15 FoIA. The Spanish saltwater lagoon rebuked the Swiss FOJ for effectively blocking access to the courts, stating that this amounts to a denial of justice.

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