What exactly is an in-camera process?

Genetic engineering facilities in which work at safety level 3 is to be carried out, releases or marketing authorizations often become the subject of disputes. Increasingly, these also concern issues relating to animal welfare permits or approvals under the Medicines Act. If third parties, such as neighbors or environmental organizations, bring legal proceedings in these cases, the in-camera procedure becomes important. In-camera procedure stands for "in the chamber" (= court), i.e. secret. If the operator has ensured that personal data or operational and business secrets have been appropriately identified when submitting the application to the authority so that they cannot be made accessible to third parties during the inspection of the files, the aim is to prevent this information from being disclosed in the court proceedings. This is the task of the in-camera procedure. When the files are submitted to the court, the authority checks on behalf of the facility operator to determine which files can be passed on to the court in relation to the neighbors or environmental organizations. If the court considers the files and submitted documents to be sensitive, it may refuse to forward them to the court (Section 99 (1) Sentence 2 of the Administrative Court Code). In this case, the third party concerned must request the court, within the framework of the in-camera procedure, to nevertheless consult the documents and examine whether their contents should be forwarded.
The Higher Administrative Court of Lower Saxony (OVG) had to decide such a case in November 2013 (14 PS 3/13). In this specific case, the parties were disputing a release permit in which key documents (a study report and a sequence report) had been blocked from the administrative file to prevent the competition from potentially gaining ground with scientific findings. The authority consequently refused to disclose the documents, and the affected party initially filed an application with the Braunschweig Administrative Court. After the Administrative Court rejected the application, the applicant appealed to the Higher Administrative Court. In its decision, the Higher Administrative Court upheld the first-instance decision and affirmed the operator's claim to confidentiality of its data. The Higher Administrative Court held that these documents were not relevant as evidence in this specific case.
In the future, such in-camera proceedings will increasingly occur in North Rhine-Westphalia, where animal welfare organizations have been granted their own right to sue. This is especially true when scientific findings, the names of experts or employees, and other confidential data from the research or production sector (e.g., the formula for an American brown caffeinated soft drink) need to be protected.

This publication can also be found on the website of the law firm Dr. Kauch .