6 Public access to documents
| (29666)
9200/08
COM(08) 229
| Draft Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents
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| Legal base | Article 255 EC; codecision; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 11 December 2008
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| Previous Committee Report | HC 16-xxvi (2007-08), chapter 2 (2 July 2008); but see (28576) HC 16-ix (2007-08), chapter 10 (23 January 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 Regulation (EC)1049/2001[17]
provides for a right of access by EU citizens or legal persons
residing or having their registered office in a Member State to
European Parliament, Council or Commission documents. The right
of access applies to all documents in the possession of one or
more of the institutions, including documents received by an institution
from a Member State or third party. The right of access is subject
to a number of exceptions and limitations relating to such matters
as data protection, intellectual property, duties of confidence,
the protection of investigations and the decision-making process.
6.2 Access to information relating to the environment
is the subject of an international agreement, the Århus
Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters of 25 June 1998
(the Århus Convention). By virtue of Regulation (EC) No.1376/2006
of 6 September 2006, the provisions of the Århus Convention
apply to Community institutions and bodies with effect from 28
June 2007.
6.3 The proposed amendments would make the right
of access available to any natural or legal person, regardless
of nationality or State of residence (Article 2(1)). Article 2
is further amended by the addition of a new Article 2(5) which
excludes documents submitted to "Courts" by parties
other than the institutions. A new Article 2(6) also excludes
documents forming part of the administrative file of an investigation
or of "proceedings concerning an act of individual scope[18]"
until the investigation is closed or the act has become definitive.
A new definition of "document" refers to a document
as being one which is "drawn-up by an institution and formally
transmitted to one or more recipients or otherwise registered"
or one which is "received by an institution".[19]
6.4 The exceptions in Article 4 have been amended
in a number of respects. First, an exception has been added relating
to the protection of the public interest in the environment, such
as the breeding sites of rare species. The exception corresponds
to the requirements of the Århus Convention, and Article
6(2) of Regulation 1367/2006. For the same purpose, it is also
now provided that the exception for the protection of commercial
interests will be overridden in the public interest where the
information relates to emissions into the environment. Secondly,
a new provision (Article 4(5)) is added which provides that "names,
titles and functions of public office holders, civil servants
and interest representatives in relation with their professional
activities shall be disclosed unless, given the particular circumstances,
disclosure would adversely affect the persons concerned".
The rest of the new Article 4(5) provides that other personal
data shall be disclosed in accordance with EC data protection
principles.
6.5 A new Article 5(2) deals with the situation where
a document originates from a Member State and is held by an institution.
Whereas the existing Article 4(5) provides that a Member State
may request an institution not to disclose such a document, the
new Article 5(2) requires the Member State to be consulted and
for disclosure of the document unless the Member State gives reasons
for withholding it, based on the exceptions under Article 4 of
the Regulation or specific provisions in its national law.
6.6 When we considered the proposals on 2 July we
regretted the then Minister's reticence to set out more fully
the Government's reaction to the proposals, noting that
the Minister had stated only that Government was still considering
its position on the detail of the proposals and that any changes
to its functioning needed to be carefully considered. We held
the document under scrutiny pending a further reply from the Minister
setting out in more detail the results of the Government's consideration,
notably on the important question of the boundary between the
protection of personal data and the rules on access to documents
and the extent to which the definition of "document"
had been narrowed, and if it would include material which comes
into the possession of the institutions by whatever means. We
also asked for the Minister's views on the implications of the
new Article 4(5) for UK civil servants, including those in the
devolved administrations.
The Minister's reply
6.7 In her letter of 11 December the present Minister
for Europe at the Foreign and Commonwealth Office (Caroline Flint)
provides us with a full analysis of the Government's views on
the various issues raised by the proposed amendments.
6.8 On the question of amending Article 2 to extend
the range of persons who may make a request, the Minister notes
that at present only EU citizens or persons resident within the
EU may make an application, but that in reality it is difficult
to establish whether a person making a request is so entitled.
The Minister adds that the Government would support the change
so as to make the right of access available to any natural or
legal person regardless of nationality or residence, provided
this can be achieved within the provisions of the Treaty.[20]
6.9 The Minister explains that the Government supports
the proposal to exclude court documents (other than those submitted
by the institutions), as this is a matter governed by the Statute
of the European Court of Justice. The Government also supports
the proposal to exclude documents relating to live investigations,
and documents seized in the course of an investigation, from the
scope of Article 2(6).
6.10 The Minister notes that the proposed new definition
of "document" would exclude draft documents and would
diverge from the Freedom of Information Act 2000. The Minister
comments that the Commission intends the amendment to reduce the
burden on the institutions by reducing the number of "documents"
which must be considered before responding to a request, but adds
that she does not consider this to be a compelling justification
and that, on the basis of the arguments advanced by the Commission
to date, the UK does not propose to support this amendment. The
Minister explains that the Government does, however, support the
other proposed change to Article 3(a) which would include data
held electronically within the definition of "document"
and therefore within the scope of the Regulation, in so far as
this does not involve the creation of new information through
research.
6.11 The Minister further comments that the change
proposed to Article 3(a) so as to exclude draft documents would
only concern documents originating from an EU institution and
would not affect the position of documents provided by Member
States and that the current position, which is not affected by
the proposed amendments, is that the Regulation applies to documents
in the possession of the EU institutions, irrespective of their
origin.
6.12 The Minister adds these further detailed comments:
"The Government also has concerns on the issue
of the interaction between the Access to Documents Regulation
and the Data Protection legislation raised in Article 4(5) of
the recast proposal. The Commission's proposal would potentially
result in the disclosure of names and details of civil servants
attending meetings with an EU institution. Where a request made
under the Access to Documents Regulation includes personal data,
the Government believes that the Data Protection Regulation should
take primacy. We believe there should be a presumption in favour
of privacy for all personal data, with exemptions considered on
a case-by-case basis consistent with the Data Protection Regulation.
Such an approach would be consistent with the UK's approach under
its FOI legislation and the Data Protection Act.
"The Government will also be seeking to ensure
adequate protection for legal advice (amended Article 4(2)).
"On Member States' right to veto the disclosure
of documents that they have provided to an institution (amended
Article 5(2)), the Government's concern is to ensure that documents
originating from the UK are only disclosed with the agreement
of the UK. It is in the national public interest that Member States
be able to protect their positions in negotiations, as well as
ensuring that information is handled in a way that would not be
discordant with domestic approaches. Therefore, the Government's
position is that, in any given case, the institution in question
should be required to accept Member States' objections, provided
that reasons have been given. At the very least, the right of
the institution to assess the adequacy of the reasons given by
the Member State should be limited to establishing that they fall
within one of the grounds specified in the Regulation, but not
to assess the weight of the objection.
"Finally, on the issues of 'bulk' requests (Article
6(2)) and time limits for replying to confirmatory applications
(Article 8), the Government proposes to support the Commission's
proposals."
Conclusion
6.13 We thank the Minister for her detailed and
helpful analysis of the proposed amendments to the Regulation
on public access to documents. Whilst we agree with the substance
of the proposed amendment to Article 2 so as to give rights of
access to those who are not EU citizens or resident in the EU,
we consider that there is a serious issue as to whether this may
be done under Article 255EC, which refers specifically to citizens
of the Union and any natural or legal person residing or having
its registered office in a Member State. We should be grateful
for any further comment the Minister may wish to offer on this
point.
6.14 We agree with the Minister that there appears
to be no compelling justification for excluding draft documents
generated by the institutions. We also support the point the Minister
makes that in cases where a document might reveal personal data,
the legal provisions on data protection should have primacy with
exceptions considered on a case-by-cases basis. We further consider
that the Minister makes a strong point that a Member States' objections
to disclosure of its own documents should not be re-assessed by
the institution holding the document.
6.15 We shall look forward to a further account,
in due course, of the negotiations on this proposal.
17 OJ No. L145, 31.05.01, p.43. Back
18
Such as, for example, a Commission decision addressed to an individual. Back
19
Article 2(3) - which is not materially amended- provides for the
Regulation to apply to "all documents held by an institution"
i.e. "documents drawn up or received by it and in its possession". Back
20
There is, arguably, some doubt over this as Article 255EC refers
specifically to citizens of the Union and any natural or legal
person residing or having its registered office in a Member State. Back
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