PART 3: ANALYSIS OF THE PROPOSAL
27. In this part of our Report we summarise the evidence
and make a number of detailed comments and recommendations on
particular Articles of the draft Regulation. Part 4 contains our
general reactions and conclusion. It also includes a summary of
the recommendations made below.
The importance of openness
28. The legal nature and constitutional significance
of public access to information varies between States. Professor
Curtin, University of Utrecht, said that historically in certain
countries, such as Sweden and the United States, access to information
was closely associated with the notion of democracy and democratic
citizenship. The link between providing the public with access
to information and enabling them to participate in and deliberate
upon issues of public importance had been very explicitly made.
In other countries, such as the Netherlands, access to information
has been perceived as an aspect of freedom of expression and perhaps
also as a fundamental human right.[21]
There were other systems that regarded access to information simply
as an aspect of administrative procedure or an aspect of good
administration or good governance. All the different strands of
thought were represented within the Member States of the European
Union. So far as the Union was concerned, what was especially
important was the addition made by the Amsterdam Treaty to Article
1 TEU of the words "in which decisions are taken as openly
as possible". Professor Curtin said: "this indicates
the fundamental importance of the principle of open decision-making
for the nature of the European Union as it is evolving".
In her view Article 1 had to be construed dynamically and was
not limited to the end of the decision-taking process. It was
also about giving access or insight into, and the opportunity
to contribute to, the decision-making process while it was going
on as well as scrutinising what had happened afterwards (QQ 1-4,
6).
29. This approach to openness in the Union was shared
by a number of witnesses. The World Wide Fund For Nature (WWF)
said: " openness in the Community institutions is critical
to enable the public to contribute to the making of policy, for
the actions of Government to be properly scrutinised and evaluated,
and for decision-makers to be held accountable" (p 59). Statewatch,
a voluntary group working on civil liberties in the EU, also
saw openness as an important element in the democratic process,
enabling the citizen to participate in the decision making process.
Mr Bunyan said: "The issue of openness and information is
closely connected to politically active civil society being able
to play its proper role. You cannot have one without the other".
Having documents and information available in advance provided
the opportunity to influence the making and content of decisions
(Q 36).
30. In a speech at the European Parliament[22],
the European Ombudsman, Mr Söderman, said:
"Experience shows that an open administration,
which is practised in many Member States, allows the citizen to
obtain the information needed to call the administration to account
for its actions and omissions, and so promotes a high level of
public debate and enhances the possibilities of rational consent
and participation. Furthermore openness seems to work against
corruption, while a closed and confidential handling of public
affairs provides opportunities for fraud and other illegal activities".
31. Ms Britta Lejon, Swedish Minister for Democratic
Issues and Public Administration, said: "European co-operation
depends on the confidence of the European people. In order to
increase this confidence more openness is vital. Not least, the
recent Commission crisis has shown the need for improved accountability
and we strongly believe that the public right of access to documents
will serve this purpose … Freedom of information is not only
important to the citizens who seek knowledge and understanding
of the EU decisions, it also works as a preventer against corruption
and a promoter of efficiency" (Q 201). Mr Keith Vaz MP, Minister
for Europe, said that the Government was "very positive about
openness". A spirit of openness was important, especially
in an institution and organisation that might seem remote to the
ordinary citizen. The Government would be "as positive and
constructive as possible" in the negotiation of the Regulation
(Q 151).
General reactions
32. The Government welcomed the proposal. The Minister,
however, said: "One of the problems with access to information
and freedom of information is the lack of clarity. Before the
system is changed we need to make sure that people are clear as
to exactly what they are entitled to receive" (Q 156).
The Euro Citizen Action Service (ECAS) said that the legislation
should in no instance be a step backwards by comparison with the
existing practice under the Code of Conduct. That would be contrary
to the progression from the Maastricht to the Amsterdam Treaty
and contrary to the commitment made in the Amsterdam Treaty (Article
A TEU) (p 150).
33. The Swedish Government saw the purpose of the
new rules as being to increase openness. However, the Commission's
proposal did not fulfil the requirements of a clear, well-balanced
system for access to documents, nor did it achieve more openness
and less room for arbitrariness than the existing rules. The Swedish
Government acknowledged that there were some positive elements
in the proposal such as the inclusion of incoming documents in
the scope, a duty to set up registers of documents and a right
to an edited version of a document where only part was covered
by an exception (right of partial access). But in order to increase
openness of the institutions there should be clear and precise
provisions, which only limited access where it was necessary in
order to protect certain important interests. The Swedish Government
was critical of the list of exceptions proposed in the Regulation
(p 104, Q 202). Other witnesses also acknowledged that these elements
of the proposal were an improvement on the Code. Similarly, the
view was reiterated that the Regulation could go further in providing
openness.
34. Ms Preston, for the Commission, emphasised the
importance of the Regulation making access to documents a legal
right. "It is not a voluntary code any more, it is not something
which the institution is generously offering to the citizen. It
is something which is a right and I think that is obviously very
important as a basis for going ahead" (Q 234). Other witnesses
acknowledged this change. The Bar European Group (BEG) welcomed
the fact that rights of access to Community institutions' documents
would, for the first time, be governed by Treaty provision (Article
255 EC) and that those rights would be enshrined in primary legislation
rather than, in the case of the current Code of Conduct, as an
adjunct to the internal rules of the institutions concerned. But
despite this benefit and other advantages the proposal contained
a number of provisions which were of concern (pp 48, 51). The
Newspaper Society welcomed the fact that the Amsterdam Treaty
had given openness an explicit legal foundation in the Treaties.
Though the Regulation contained "many good things" there
remained "several areas of concern" (p 151).
35. The Consumers' Association (CA) said that consumers
in Europe, and particularly in the UK, had been hit by a series
of major scandals. "The direct causes may have been different
in each case, but there has been a common theme; namely, that
by the time consumers had found out what had gone wrong, or the
full extent of the damage had become clear, it was too late. Consumers
and taxpayers had picked up the pieces and paid the price for
decisions made behind closed doors. There is a very real need
for meaningful freedom of information legislation both at national
and European level". CA welcomed the proposal in so far as
it would introduce a statutory right of access to documents and
information. But CA had "major concerns" about the Regulation
as currently drafted (p142).
36. Mr J W Amos and Dr R S Baxter, from the Constitution
Unit, University College London, ("Amos and Baxter")
said: "Superficially, this proposed Regulation promises a
very open regime with citizens having a wide right of access to
information held by the European Union institutions. On closer
reading, however, the intended regime is far from open because
of the large number of restrictions placed on the rights of access
to information". They also expressed concern over the lack
of clarity of the drafting and could foresee that when implemented
by officials within the institutions "The effect is likely
to be uncertain, variable and unpredictable" (p 133).
37. Other witnesses were more condemnatory. The Ombudsman
stated that, in his view, the Commission's proposal did not meet
the intention of those who drafted the Treaty of Amsterdam.[23]
In the view of the European Environmental Bureau (EEB), a federation
of environmental organisations in Europe, the proposal was a "shocking
failure to deliver on the Amsterdam Treaty's promise of more openness
in Community decision-making". The Regulation could make
the present position worse and at least as far as environmental
information was concerned the proposal conflicted with the Aarhus
Convention.[24]
In the EEB's view the importance of this Regulation went beyond
the question of access to documents. The credibility of the EU
was at stake in the eyes of its citizens. The proposal's "poor
rules" would result in the exact opposite of what was intended
by the Treaty of Amsterdam in terms of decisions being taken openly
and close to the citizen (p 51, Q 73).
The Code of Conduct
38. It was acknowledged that the current system,
based on the Code of Conduct, had provided a considerable degree
of openness. Lord Williamson of Horton, a former Secretary General
of the Commission, doubted whether there was widespread dissatisfaction
with the way in which things presently worked. "Of course
you could always make improvements but generally I am satisfied
with the operation of the Code of Conduct, and in general I think
that that was shared by most people who came to use it".
(QQ 184, 196). Mr Keith Vaz MP, Minister for Europe, said that
the Government was generally content with the way the Code of
Conduct had worked in practice. (Q 153). Euro Citizen Action Service
(ECAS) said that it was a tribute to the departments that had
managed the access to documents regimes that a vast majority of
requests had been granted, despite widely defined exemptions (p
151).
39. Both the Minister and Lord Williamson of Horton
pointed to the statistics which show that a large proportion of
requests for documents received a positive response. In the case
of requests to the Commission, in 1997 91.9 per cent received
a positive response. In 1998, the percentage was 93.5 and, in
1999, 82.8. The Minister said that in 1999 over 85 per cent of
the documents sought from the Council had been granted. The United
Kingdom had usually argued in favour of their release (Q 153).
Further statistical information relating to the operation of the
Code can be found in Appendix 3.
40. Professor Curtin described how practice had evolved
under the Code of Conduct and pointed to the important role played
by the Community Courts in defining the scope of the Code (its
application to all three Pillars) and its exceptions, and in setting
out what was required of institutions when considering a request
for access. She also acknowledged the active steps taken by the
institutions, including voluntarily placing documents on the Internet.
It had provided a considerable degree of openness, particularly
in recent years (QQ 5,9,12). Mr Bunyan drew attention to
the role and practice of the Ombudsman in the enforcement of the
Code (QQ 40-1).[25]
41. Mr Peers, for Statewatch, acknowledged
that the Code had liberalised certain aspects of access to information,
including the disclosure of Council voting records and minute
statements. There had, however, been systemic problems in getting
access to documents (Q 37). Lord Williamson of Horton accepted
that there had been difficulties. Once access to documents was
formalised in the Code of Conduct "officials tended to behave
in the manner in which I am afraid all officials do behave, that
is to say, they started looking very carefully at the exceptions
to see whether perhaps something fell into the exceptions".
The formalisation of the process also gave the institutions lawyers
a bigger role and they tended to be rather conservative. Lord
Williamson of Horton said that the Member States were also "difficult"
on anything relating to state aids and infringement proceedings
because they feared information would get out early (Q 184). According
to Mr Harden, for the European Ombudsman, the six years of experience
of the operation of the Code demonstrated a learning process:
"The institutions have learned how to deal better with applications
for access, more applications for access and a higher proportion
of those applications are granted " (Q 129). But Mr Peers
said "Even though some of the worst practices that existed
three years ago have improved, there are still some fundamental
difficulties in finding out the basics of what is going on"
(Q 37).
42. Mr Hontelez, for the European Environmental Bureau
(EEB), said that they found the procedure under the Code "very
cumbersome and slow". Further, "In all three institutions,
there is not really a policy to promote access to information".
EEB had had greater success in getting information informally,
relying not on rights but on building relationships with officials.
He spoke well of the European Parliament (though there were sometimes
practical difficulties), the Economic and Social Committee, the
Committee of the Regions and the European Environmental Agency.
The EEB was assisting in a complaint against the European Investment
Bank. Mr Hontelez described the Council as "an extremely
secretive body. What is happening in Brussels in the working groups
of officials is very difficult to understand. Environmental organisations
of individual countries have no idea how the interests of their
country are being represented in those negotiations" (QQ
69, 91,102). Mr Popham, for the World Wide Fund for Nature (WWF),
expressed dissatisfaction with the way the Code had worked for
the WWF. They had won their case before the Court of justice but
still did not get the documents requested. Like the EEB, WWF was
very dependent on goodwill for obtaining information and documents
(Q 69).
43. A substantial degree of openness has been
obtained by the Code of Conduct in combination with a number of
other factors. These factors include effective supervision by
the Community Courts, the work of the Ombudsman both in dealing
with particular complaints and with general issues of openness
in defining the requirements of good administration, and positive
developments in the practice of the Commission and the Council
in giving access to documents. In short, the Code of Conduct as
interpreted and applied to date provides a useful minimum standard
against which the draft Regulation can be measured and a solid
foundation for taking the work forward. The purpose of the draft
Regulation is "to widen access to documents as far as possible,
in line with the principle of openness" (recital 12). We
therefore believe that simple consolidation of the Code is not
enough. Improvements are needed.
The consultation process
44. A number of witnesses were critical of the Commission's
failure to consult interested parties before publishing its proposal.
In a letter to the Wall Street Journal[26]
Mr Söderman, the European Ombudsman, had referred to the
Commission's "secretly drafted" proposal. Mr Prodi,
President of the Commission was quick to respond: "Not so.
The question of access to documents was discussed at a conference
in the European Parliament last April, at which he [Mr Söderman]
himself spoke, and which was attended by 200 representatives from
a wide range of organisations. A discussion document on access
to documents was widely distributed, debated and criticised. The
Commission took these comments into account in preparing the draft
legislative proposal".[27]
Mr Prodi added that the current proposal would now be open to
scrutiny. The Regulation would be adopted according to the co-decision
procedure. As Professor Curtin explained, in contrast to the Code
of Conduct, the European Parliament would have a direct input
and could propose amendments There was also an opportunity and
time for national parliaments and civil society to be involved
in the debate (Q 13).
45. A number of witnesses, nonetheless, had expected
the Commission to produce a consultation document. They pointed
out that certain MEPs had summoned the conference at the Parliament
and that discussion there had proceeded on the basis of a leaked
draft Commission document put into the public domain by Statewatch.[28]
In so far as there had been any public participation and openness
in the procedure of drafting the Regulation, that had not been
at the initiative of the Commission but at the initiative of critics
of the Commission (QQ 35, 44, 71, 131). The European Environmental
Bureau (EEB) listed the absence of public consultation as one
of the "most notable failings" of the proposed Regulation.
The failure to consult NGOs was remarkable given that the proposal
was the responsibility of the same Secretariat General of the
Commission as was simultaneously engaged in a wider debate about
the relationship between the Commission and the NGOs, including
consultation requirements (p 51, Q 71). Ms Mary Preston,
for the Commission, accepted that was there was "quite a
lot of justification" for the criticism of the failure to
consult. There were "rather exceptional circumstances".
Ms Preston referred to the resignation of the Santer Commission.
The Commission's Legal Service had advised that a caretaker Commission
should not initiate new legislation. By the time the new Commission
was in place a lot of time had been lost and with a deadline of
1 May 2001 the decision was taken to proceed with the legislation.
Ms Preston said: "We definitely lost out with that and I
think there are a lot of misunderstandings about the proposal.
It means we did not explain it properly but I think that we could
have done that during the consultation procedure and I think we
really lost out with that" (QQ 232-3).
46. We believe that the Commission can rightly
be criticised for its failure to consult prior to the adoption
of the draft Regulation. The collapse of the Santer Commission
inevitably imposed some constraint on officials launching new
policy initiatives. But some substantial initiatives were in fact
launched (such as the White Paper on reform of competition procedures[29]).
Moreover it is difficult to see how the issuing of a discussion
paper and conduct of a consultation exercise could be regarded
as objectionable or in any way improper when the Treaty itself
mandated the Commission to act and legislation is required to
be adopted within a specific limited time-frame. An important
political opportunity was missed. Extensive external consultation
would have demonstrated commitment to openness. It might have
gone some way to restore to the institution some of the legitimacy
and credibility it lost with the collapse of the Santer Commission.
We hope that the Commission will learn from this experience and
that the negotiation of the draft Regulation and its implementation,
including amendment of each institution's Rules of Procedure (to
which we return later), will be conducted openly with full consultation
of interested parties.
Relationship with national laws
47. Recital 12 raised the question whether or not
Member States' laws and practice on disclosure of documents would
be affected by the Regulation. The Recital excited considerable
controversy as there were fears that it might undermine Member
States' domestic freedom of information legislation and go beyond
their existing "duty of loyal co-operation" under the
Treaty. The recital provides:
"Even though it is neither the object nor the
effect of this Regulation to amend existing national legislation
on access to documents, it is nevertheless clear that, by virtue
of the principle of loyalty which governs relations between the
Community institutions and the Member States, Member States should
take care not to hamper the proper application of this Regulation."
Mr Peers, for Statewatch, expressed concerns with
recital 12 both on grounds of law and policy. Article 255 did
not give the Community power to amend national law. Nor did Article
10 EC, which set out Member States' duty of loyalty, extend so
far as to require Member States to amend their national law, possibly
their constitutional law, so as to automatically agree to refuse
to release a document simply because the Community institutions
have refused to release it (p 31, QQ 46-7, 49).
48. Professor Birkinshaw, University of Hull, described
recital 12 as being "pregnant with possibility as presently
drafted and not much of it to the good". He was concerned
that it might have an impact on more liberal national regimes
even in areas where no EU element was involved (p 140). Professor
Curtin considered the provision to be "a rather clear message
to the Member States and in particular to those Member States
with progressive legislation". The relationship between the
Regulation and national regimes had to be addressed but "the
way in which it is explicitly addressed at the moment means that
it could in practice reduce the rights of citizens which they
currently enjoy under their respective freedom of information
legislation in the various Member States, and that is a real problem"
(QQ 32-3). In the view of the European Environemental Bureau (EEB),
the recital suggested a suspicion on the part of the Commission
that Member States with a more generous system of access to information
would continue to apply that system. Member States' duty of loyalty
was no more at issue here than in other EU legislative instruments.
The EEB proposed that the recital and the text of the Regulation
should provide that the Regulation was without prejudice to any
law or practice in the Member States that would give wider public
access to documents, including EU-related documents. The EEB was
concerned that the proposal would inhibit Member States from actively
seeking the views of NGOs on issues under negotiation (p 59, Q
119). ECAS argued that in place of recital 12 it should be made
clear that the draft Regulation was a minimum standard, which
should not affect easier and quicker access to EU documents which
citizens might enjoy in certain Member States (p 146).
49. Mr Harden, for the European Ombudsman, said that
it was frequently the case that the same document in substance
would be held by Member States and by Community institutions because
they regularly transmit documents and copies of documents to each
other. The effects of recital 12, and the implications of the
application of Article 10 EC, were uncertain in the present context,
not least because of the wide diversity of Member States' freedom
of information laws. But what was, in Mr Harden's view, clear was that the authorship
rule (removed as regards the institutions by the Regulation) should
not apply to the Member States, "that the Member States should
always have to say, for example, 'this is a Commission document
therefore you must ask the Commission for it'". A Member
State should not under its own national legislation give access
to a document that had already been refused by a Community institution.
Where no decision had been taken by the Community institution,
Mr Harden suggested that the principle of co-operation should
imply that the Member State, when taking a decision on access,
should take into account the applicable principles of Community
law (Q 138).
50. The Swedish Government said that the Regulation
should not affect national legislation or practices as regards
access to information, EU-related or not. Community measures should
leave as much scope for national decision as possible, consistent
with securing the aim of the measures and observing the requirements
of the Treaty. In the present context, the principle of loyalty
sufficed to prevent the Member States from acting in contradiction
with the Community rules. There had been no problems under the
current regime. Ms Britta Lejon, Swedish Minister for Democratic
Issues and Public Administration, said: "The purpose of the
whole exercise is to increase openness within the European Union
institutions, not to reduce openness in those Member States that
have a good practice today" (p 104, QQ 203-5). The United
Kingdom Government also had difficulties with recital 12. The
Minister favoured its deletion. The Government wanted there to
be a clear demarcation between Member States applying their national
rules and the institutions applying European rules. It supported
a Dutch proposal: when a Member State received an application
for access to a document authored, or sent to it, by an EU institution
the application should be forwarded to the institution that authored
the document or sent it to the Member State. The Minister accepted
that the case where a third party such as an NGO sends the same
document to the Government and to the institutions was more complicated.
But Mr Vaz's "first instinct" was that access to the
copy held nationally should be governed by the national legislation
(Q 157).
51. According to Ms Durand, for the Commission, recital
12 was just to remind Member States of the obligation of loyalty
in the Treaty. "It is a bit worrying that it worries people".
It was not intended to affect national freedom of information
laws, though so far as disclosure of EU documents was concerned
the duty of loyalty should ensure some uniformity. The issue was
not a new one. The situation existed under the Code. In practice,
where a Community decision on access to a particular document
had already been taken Member States should follow that decision.
If no decision had been taken at Community level and there were
doubts about the matter then the Member State should ask the opinion
of the Commission or the Council. Ms Durand said: "That is
exactly what has been done so far and no problem has occurred"
(QQ 287, 291-2).
52. Some witnesses saw part of the solution to the
problems raised by recital 12 in changing the form of legal instrument
that the proposal took. The EEB said that the proposed Regulation
was directed at three of the EU's institutions and the question
arose whether a decision would not be more appropriate (p 59).
Statewatch said that by using a regulation, the Community was
in effect potentially making the proposal binding upon Member
States within their national legal order - the definition of a
regulation in Article 249 EC Treaty was that it is directly applicable
within the Member States. That was unnecessary in the present
context and appeared to suggest an effect within the national
legal orders (p 16, Q 48). The Swedish Government argued that
rules made under Article 255 EC could only bind the institutions.
In order to make this absolutely clear Sweden would prefer the
new regime to take the form of a Decision directed towards the
institutions (p 104).
53. We agree with the Minister that recital 12
should be deleted, particularly if, as the Commission suggested,
the intention is no more than to remind Member States of the duty
of loyalty contained in Article 10 EC. We recognise, however,
that the recital reveals an issue with potentially serious political
and practical implications. National freedom of information laws
and practices vary but there will need to be uniformity of treatment
of documents emanating from the institutions. There should be
no opportunity for leakage that would undermine the EU system.
Where a third party provides a document to both an EU institution
and a national authority, then national law should govern disclosure
of the document by that Member State. There may be situations
where the national authority, if its domestic law is more liberal,
should seek the views of the institution. That said, the Community
system should not create any unnecessary restrictions, especially
where national freedom of information regimes are more liberal.
There will in practice need to be a modus vivendi. We are
encouraged by the fact that no problems have been experienced
to date in the operation of the Code of Conduct. This suggests
that the matter need not be determined in the Regulation. It is
better left to be developed by the Community Courts who are ultimately
responsible for defining the relationship between Community and
domestic laws.
Article by Article analysis
ARTICLE 1
| Article 1
General principle and beneficiaries
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to the widest possible access to the documents of the institutions within the meaning of this Regulation, without having to cite reasons for their interest, subject to the exceptions laid down in Article 4.
|
NEED FOR A PURPOSE CLAUSE
54. Article 1 of the draft Regulation states that
citizens shall have the right to the widest possible access
to the documents of the institutions. But as a number of witnesses
commented that right was severely cut back by later Articles.
For example, by defining "documents" in such a way as
to restrict it to certain categories of "administrative documents"
(we deal with the definition of documents below, when considering
Article 3), Amos and Baxter said "The door is opened and
then half shut" (p 133). Mr Harden, for the European
Ombudsman, noted that the exclusions from the definition of "document"
and the exceptions to access were drafted "in rather general
terms. In practice, therefore, citizens would not so much enjoy
rights as be dependent on the goodwill of officials exercising
the discretion on behalf of the institution"(p 77).
55. The Consumers' Association (CA) believed that
the statement of a right of access in Article 1 was desirable
but not sufficient on its own. It needed to be supplemented by
a purpose clause and a public interest declaration. The purpose
clause should state that the key objectives of the regulation
were: improving access to information; protecting and promoting
the public (consumer) interest; transparency and accountability
of decision making; enhancing democratic participation of citizens
in Europe. The public interest declaration should state that the
basic presumption underpinning the regulation was that the public
interest is generally served by the disclosure of information
unless clear evidence can be shown that this would cause some
degree of harm as outlined in Article 4 (p 143). Amos and Baxter
also argued that the Regulation should contain a purpose clause.
Such clauses, they said, "help guide decision makers when
they have to exercise discretion over whether information should
be disclosed or withheld in the public interest. They also provide
guidance to the courts in developing case law. Most foreign FOI
statutes include a purpose clause. The EU should consider giving
the purpose of the Regulation greater legal standing by starting
Article 1 with "The purpose of this Regulation is to promote
greater openness and accountability in European institutions""
(p 134).
56. The opening provisions of freedom of information
legislation, as several witnesses pointed out, are especially
important. They not only set the philosophical/political tone
of the instrument but also help establish the legal framework
for balancing the competing public and private interests involved
in such legislation. Article 1, as drafted, gives citizens "the
right to the widest possible access" to documents "without
having to cite reasons for their interest". This is a strong
statement, fully compatible with the Treaties. We doubt whether
anything more positive or purposive needs to be said. We recognise,
however, that the strength of Article 1 has to be measured against
other Articles, such as Articles 2, 3 and 4, which contain provisions
which would cut back the right set out in Article 1.
WHO CAN APPLY/HAS THE RIGHT OF ACCESS
57. Under the Code, access is given to any member
of the public without restriction. As Professor Curtin pointed
out, limiting the right of access to any citizen of the Union
and any natural or legal person residing or having its registered
office in a Member State was a consequence of Article 255 TEC.
(Q 24). The Government believed that access to EU documents should
be confined in principle to European Union citizens and persons
or companies resident in the Union (Q 159). But Professor Curtin
queried whether there should be any restriction on the personal
scope of such a legal instrument at the level of the European
Union, given that the European Union takes decisions which affect
citizens who do not fall within the personal scope set out in
Article 255 (Q 24). Other witnesses pointed to the interests of
those in applicant States, in developing countries, and in trading
partners in having access to documents on EU policies affecting
them (QQ 52, 78, 81, 85).
58. Mr Green, for the Bar European Group (BEG), pointed
to the lack of symmetry between Article 1(1) and Article 2(1).
Under the latter, the Regulation would apply to all documents
held by the institutions - i.e., produced by them or received
from third parties and in their possession. Although there was
no obligation on third parties to produce information for the
institutions, if the institutions received them, they could then
be accessed by EU citizens (Q 82). A number of witnesses doubted
whether the limitation could be enforced effectively and observed
that it could be easily side-stepped in practice. Mr Green (BEG)
said: "The practical considerations in trying to distinguish
between a third party and a non-third party seem to be immense.
If you are a third party and you want information, you ask your
British cousin to get it for you. That British cousin does not
have to give reasons. He can simply ask for it and obtain it and
provide it to the American cousin. What is the practical reason
for precluding non-Europeans?" (Q 83). Amos and Baxter suggested
that the EU would be better advised to conform with the Aarhus
Convention and give rights of access to "any natural or legal
person". Foreign FOI legislation that extended access rights
to "any person" had not experienced difficulties in
practice (p 134).
59. In Amos and Baxter's view deliberately excluding
non-citizens or any natural or legal person residing or registered
outside the Union was discrimination which would be "unreasonable
and unfair" (p 134). According to Mr Harden, for the European
Ombudsman, one could not deduce from the fact that Article 255
referred to a right of access for EU citizens and residents that
the institutions were required to or should systematically reject
all applications for access made by anyone else. If that was correct
then as a matter of good administration the institutions should
also have rules that apply to requests from non-citizens or non-residents.
Mr Harden took the view that the most economical solution and
one which avoided any danger of discrimination was to apply the
same rules (QQ 141-2). Lord Williamson of Horton thought it feasible
to have the Regulation and a code of conduct for non-EU citizens
but "You would have to have a code of conduct for non-EU
citizens which would have to be in the same form, same exceptions
and so on" (Q 190).
60. A Regulation made under Article 255 EC could
only confer rights of access on those citizens etc listed in that
Article. Nevertheless Article 1, while fully respecting the wording
of the Treaty, appears to be discriminatory and seemingly neglects
the interests of others, such as citizens and residents
of the applicant States and parties outside who trade in the Union.
In practice there may be little, if any, practical significance
in the omission of such persons because an applicant does not
have to give reasons when applying for a document. Moreover, as
the Ombudsman says, requirements of good administration may demand
non-citizens/other persons to be treated equally with EU citizens.
But it is in our view undesirable that parties should have to
resort to such fictions and we see no reason of substance why
the Regulation should not match the Code and give rights to all.
Article 255, we accept, does not give the necessary powers to
enable this, but Article 308 EC might be invoked to "top
up" the Regulation. The Commission's Legal Service queried
whether there was an "objective" of the Community (within
the meaning of Arts 2 and 3 EC) and suggested that Article 255
might constitute a lex specialis having the effect of excluding
resort to Article 308. But we would argue that all the
objectives could be better achieved by the institutions acting
more openly. Further, the Community's objectives and their attainment
within Article 308 has to be read in the light of Article 1 TEU,
which refers expressly to decisions being "taken as openly
as possible and as closely as possible to the citizen".
ARTICLE 2
| Article 2
Scope
1. This Regulation shall apply to all documents held by the institutions, that is to say, documents drawn up by them or received from third parties and in their possession.
Access to documents from third parties shall be limited to those sent to the institution after the date on which this Regulation becomes applicable.
2. This Regulation shall not apply to documents already published or accessible to the public by other means.
It shall not apply where specific rules on access to documents exist.
|
ABOLITION OF AUTHORSHIP RULE
61. Witnesses generally welcomed the removal of the
so-called authorship rule. At present requests for documents that
an institution has received from a third party are refused on
the grounds that the applicant must apply to the author of the
document concerned. The Code deals only with documents that the
institution itself has drawn up. The Regulation would, in addition,
apply to documents received from third parties and in the possession
of the institutions. The Government described the change as "one
of the steps forward" in the Commission's proposal (Q 155).
Ms Preston, for the Commission, said that the change would bring
the Community regime into line with those of most Member States
(Q 234). Euro Citizen Action Service (ECAS) said that for NGOs
it was particularly important to have access to submissions from
other lobbies. Removal of the authorship rule was "a step
forward" (p 151). But it was suggested that the effect of
the change might be quite limited in practice. Mr Harden, for
the European Ombudsman, said that the list of exceptions in Article
4 included "the protection of confidentiality as requested
by the third party that supplied the document or the information
or as required by the legislation of the Member State". This
appeared to mean that anybody has the right to send a document
to a Community institution in secret, without giving any reason
(p 77). (We deal with the question of the scope of the exceptions
below.)
62. We acknowledge that the removal of the authorship
rule is a step forward. We share the concern expressed that the
measure of any benefit of removal of the rule will be dependent
on the extent of the exceptions in Article 4, especially that
for confidentiality in Article 4(d).
DOCUMENTS ALREADY PUBLISHED
63. Under Article 2 (2), the Regulation shall not
apply to documents already published or accessible to the public
by other means. Statewatch said that the provision looked innocuous.
But it referred to the present practice whereby once a measure
has been published by the Publications Office of the EC (eg
in the Official Journal) then documents were not provided by the
Commission to applicants (who may have to purchase complete and
possibly expensive copies of the OJ). Moreover, documents published
in the Official Journal were not the same as the actual documents
which contain specific document references enabling a document
to be located in the decision-making process. Nor, in Statewatch's
view, would it be acceptable for this provision to be applied
to documents "published" on the Internet - this would
assume that all citizens have access (p 16). Professor Curtin
expressed similar concerns (Q 25).
64. The Court of First Instance has taken the
view that it was not the purpose of Commission Decision 94/90,
implementing the Code of Conduct, to establish a right of access
to documents already accessible by reason of their publication
in the Official Journal.[30]
Nor do we believe that is the intention of Article 255 EC. The
essential purpose of "access to documents" is satisfied
if the documents are freely (ie generally) available.
It must be accepted that the citizen may have to pay (and thus
bear some of the costs) for a document. But the price should not
be excessive in relation to the actual costs. A high pricing policy
would obstruct the exercise of the right of access. For that reason
it would be objectionable and subject to challenge.
65. The absence of specific document references
in the Official Journal or other published version of a document
may be important in some circumstances. But this might be remedied
generally, if the case can be made out, by the institutions retaining
prior identification references in published versions, or, case
by case, by the applicant requesting the information directly
from the institution concerned. As we observe in paragraph 11
above, access to documents is only one, albeit important, element
of access to information. The institutions need to bear in mind
the broader context, and the principles of openness and of good
administration, in handling such requests.
SPECIFIC RULES
66. Article 2 (2) also provides that the Regulation
"shall not apply where specific rules on access to documents
exist". This limitation, in the view of the Consumers' Association
(CA) and a number of other witnesses, gave cause for concern.
The effectiveness of freedom of information legislation could
often be undermined by its interaction with other existing prohibitions
on disclosure. CA wanted existing rules on access to be reconsidered
in order to see if they lived up to the need for openness in light
of the Regulation (p 144). Mr Peers, for Statewatch, described
the provision as "a negative change from the existing rules
because the Court of First Instance established last December
in Interporc II [31]
that you can have both sets of rules applying at the same time,
so you can try and get access to documents by two different routes.
This would prevent you from using the Regulation route where another
more specific route applies. So you might lose under that more
specific route and then be unable to apply under the Regulation."
Statewatch believed that it would be "preferable to maintain
the current regime rather than to overturn it, never mind overturn
it without even admitting that is what you are doing, as the Commission
is actually proposing" (p 31, QQ 46, 55). Mr Popham, for
the World Wide Fund for Nature (WWF), said that "specific
rules" should be defined. Lack of formality and possible
overlap of specific rules with the provisions of the Regulation
could produce anomalies and cause substantial difficulty (Q 99).
67. Other witnesses also sought clarification of
the nature and extent of the application of the specific rules
clause. Amos and Baxter said that it was important to know the
extent of such "rules" and whether they had a legal
basis. Exclusion was totally unacceptable unless the "rules"
derived from legislation. The Commission's Explanatory Memorandum
was not convincing in this respect - it merely suggested that
these rules should be revised "in the light of the general
principle on transparency" but it put no bar on the adoption
of new rules which would thwart the openness regime (p 133). The
Bar European Group (BEG) also contended that the provision should
be clarified. It was unclear but doubtful whether it covered specific,
already regulated (though by administrative practice, notice and
case-law) areas such as "access to file" in competition
and dumping matters. Mr Green said: "To my mind, "rules"
rather presuppose something that has a mandatory or normative
nature as opposed to simply the practice of one directorate of
the Commission". If Article 255 EC permitted any such exceptions,
then they should be specifically incorporated into the text of
the Regulation. Leaving it as it was might give "carte
blanche to directorates to write themselves out of the Regulation
by adopting specific and narrow rules" (p 49, QQ 92-4). Mr
Hontelez, for the European Environmental Bureau (EEB), argued
that if the provision was to remain in the Regulation it should
be used to improve the position as regards environmental information,
consistent with the obligations in the Aarhus Convention (Q 97).
68. The Government supported the retention of this
provision. Mr Vaz said: "The key is that these specific rules
are in some cases more liberal than the draft Regulation, so we
do not want to be in the position that we should be tightening
them up and levelling them down". (The Minister referred
to the fact that the Community had signed up to the Aarhus Convention
but had yet to introduce proposals for its implementation). The
Government did not want the specific rules clause to become a
means of establishing unnecessary exemptions in the future (QQ
163,166). The Swedish Government believed that the Regulation
should set a minimum standard for access. It could accept Regulations
that grant the public a wider access to documents but not the
contrary. The Article needed clarifying and the relevant "specific
rules" identified (QQ 206-8). Mr Harden, for the European
Ombudsman, doubted whether the exception permitted the retention
of more restrictive regimes, the intention of the Regulation being
to broaden public access. He was not at all certain that it was
possible, in the light of Article 255 EC, to interpret this provision
as maintaining intact existing restrictions whether or not such
restrictions were consistent with the broader principles set out
in the Regulation. Preservation of less restrictive regimes for
granting access was, however, another matter (Q 143).
69. Amos and Baxter proposed that a list be compiled
of the existing "specific rules on access" throughout
the EU institutions (p 134). Mr Harden took the view that at the
very least a list of the relevant provisions should be annexed
to the draft Regulation so that it was possible for those considering
it to know the extent of the provisions in question (Q 143).
70. Ms Preston, for the Commission, explained that
the intention had not been to change the current position. There
existed a number of Community procedures, such as the competition
rules, anti-dumping, state aid, containing rules on who had access
to what information and at what stage. There were also a number
of Regulations, mainly concerning enquiries, audits, and investigations,
involving assistance between Member States and the institutions.
These contained certain statutory requirements on confidentiality.
There was no incompatibility between these procedures and Regulations
and the proposal but the Commission considered it necessary to
draw attention to them in the draft Regulation. There was a list
that could be published. As regards the Aarhus Convention, Ms
Preston said that the Commission had had regard to it but it was
"a genuine problem". She said that when the Commission
signed the Aarhus Convention they stated that they might at the
time of ratification make reserves. One of the reserves would
be that the part in the Aarhus Convention concerning access to
documents would only be applied in so far as it was compatible
with EC rules. If the Commission did not make such a reservation
there would be two access to document regimes, one for environmental
subjects (and the definition in Aarhus on the environment was
very wide), and one for the rest. There would be problems in defining
what was environment and what was not but the Commission could
live with that. Ms Preston concluded; "Basically we are going
to wait and see what the political decision is at the time when
the ratification comes a bit closer" (Q 246, 261).
71. We are concerned that the final sentence of
Article 2 (2) may operate as an unchecked, and potentially uncheckable,
blanket exception from the Regulation. The Commission provided
a note giving examples of relevant "specific rules".
But it does not explain what criteria have been applied in determining
the disclosure/confidentiality provisions in those rules, what
has been done to ensure that they reflect a correct balance between
the competing public interests, or how those provisions compare
to the standard to be set in the Regulation. Moreover, the Commission's
note is quick to say that it provides "une liste purement
indicative et non-exhaustive". Further, Article 2 (2)
contains no mechanism or standard by which such rules can be measured
to justify the disapplication of the Regulation. This position
is most unsatisfactory.
72. The purpose and scope of the "specific
rules" clause needs to be clarified. We agree with the Government
that it should not permit any levelling down or any new exception.
The Regulation should only bow to better rules (possibly, for
example, in environmental matters, to the Aarhus Convention).
Where two regimes (the Regulation and "specific rules")
are applicable, the citizen should have the benefit of both (and
therefore the better) and be able to elect which procedural route
to follow in the particular circumstances. We recommend that the
Regulation should include, first, a minimum standard clause so
as to make clear that the Regulation establishes a common minimum
standard of access to all EU documents. Second, there should be
a "standstill" clause so that access under other more
favourable regimes cannot be reduced.
ARTICLE 3
| Article 3
Definitions
For the purposes of this Regulation:
(a) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); only administrative documents shall be covered, namely documents concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility, excluding texts for internal use such as discussion documents, opinions of departments, and excluding informal messages;
(b) "institutions" shall mean the European Parliament, the Council and the Commission;
(c) "European Parliament" shall mean Parliament bodies (and in particular the Bureau and the Conference of Presidents), Parliamentary Committees, the political groups and departments;
(d) "Council" shall mean the various configurations and bodies of the Council (and in particular the Permanent Representatives Committee and the working parties), the departments and the committees set up by the Treaty or by the legislator to assist the Council;
(e) "Commission" shall mean the Members of the Commission as a body, the individual Members and their private offices, the Directorates-General and departments, the representations and delegations, committees set up by the Commission and committees set up to help it exercise its executive powers;
(f) "third party" shall mean any natural or legal person, or any entity outside the institution, including the Member States, other Community and non-Community institutions and bodies and non-member countries.
A list of the committees referred to in points (d) and (e) of the first paragraph shall be drawn up as part of the rules giving effect to this Regulation, as provided for in Article 10.
|
DOCUMENTS
73. The definition of "documents" was criticised
by a number of witnesses. Since 1993 citizens have been entitled
to apply for any document subject only to certain exceptions.
In ECAS' view, it was "a strong feature" of the Code
of Conduct that all types of document were in principle accessible.
There was no evidence that access to preparatory documents under
the Code had denied officials "a space to think" or
caused harm to the decision-making capacity or collective responsibility
of the Commission or the other Institutions. Euro Citizen Action
Service (ECAS) saw no reason to go back on the Code (p 149). Both
Statewatch and the Bar European Group (BEG) also contrasted the
approach of the Code. No documents had been permanently excluded.
Mr Peers considered the new definition to be the most important
change. He said: "What that does in effect is say that a
large number of what would currently be defined as documents would
no longer be defined as documents and so would fall completely
outside the scope of the new Regulation as compared to the existing
decisions … Probably on balance, because it is so important,
it means, despite some other positive changes being proposed,
that the Regulation as a whole is a step backwards, because of
this point alone" (p 17, Q 46). BEG said that the proposed
definition did not improve on the Code: "There seems to be
no good reason for the proposed change save to make less transparent
that which falls within the ambit of the proposed Regulation"
(p 50). ECAS considered that exempting working papers in the preparation
of legislation or policy would undermine years of tentative steps
towards greater transparency (p 149).
74. Professor Curtin explained the background. Under
the current regime, the discretionary exception enabled an institution
to deny applicants documents where access would interfere with
the confidentiality of its proceedings. The Court had, from the
early days, insisted that a balancing of interests must take place
by the institution in question, that the institution's interest
in confidentiality must be balanced against the citizen's interest
in obtaining access to information. It had emerged in the run-up
to the proposed Regulation that this had been very troublesome
to the institutions and, in particular, to the Commission who
had in recent cases sought to deny access on the basis of the
mandatory public interest exception rather than have to apply
the discretionary exception (QQ 9, 19). Ms Durand, for the Commission,
confirmed that justifying the refusal to hand over a document
in such circumstances was "difficult". The Commission
had therefore abandoned the exception of secrecy of deliberation
in favour of the notion of "internal document" (Q 254).
Mr Bunyan, for Statewatch, described the Commission as "lazy".
Under the current regime a request had to be considered and reasons
for refusal given. "Here they are saying, "We do not
want that nonsense. Let us get all the categories of documents
outside the definition"" (Q 57).
75. Restricting "documents" to "administrative
documents" and then excluding internal documents and informal
messages (including e-mails) would have the effect of removing
a large number of documents from public access. On the basis of
his experience, Lord Williamson of Horton estimated that it would
exclude "an enormous amount … certainly a large percentage".
Moreover "you are excluding things which could be very interesting
for the citizen". He drew attention to the exception being
proposed for the "effective functioning of the institutions"
and added: "This document, the new proposal, is a belt and
braces document. It excludes all these administrative documents,
which is a lot, and it still retains the exception "effective
functioning of the institutions". It has a restriction twice
… I think you need to ask whether you need both those ways
of doing it" (Q 191). Amos and Baxter said: "Officials
wishing to maintain a culture of secrecy could refuse most reasonable
requests for information using these loopholes. Secrecy should
not be encouraged through refusing rights of access to broad classes
of information held by institutions: statutory exemptions exist
for this purpose". In Amos and Baxter's view, the Regulation
should not qualify the type of documents covered: "exclusions
are the responsibility of "exceptions"" (p 135).
76. Ms Preston, for the Commission, said that the
intention was not to change the system. "You asked why do
we think we need space to think now all of a sudden. I think it
is because there is more and more transparency. Maybe we feel
the tide coming closer and we need to try and keep a little island,
with a dyke round it. All national legislations have a way of
keeping some internal documents confidential. The question is
how to define them. We have left this rather wide definition to
see what is the reaction of the Council and the Parliament".
The Commission was not, however, seeking "wholesale protection".
On the question of the overlap with the exception for the "effective
functioning of the institutions, Ms Preston doubted whether there
would, at the end of the negotiation of the Regulation be any
"double protection" for the Commission. The Council
had already proposed limiting the exception to "the effectiveness
of the decision making procedure" (Q 253, 259).
77. Article 3 (a) seeks to perform two distinct
functions. First, it defines what type of information containing
medium constitutes a document. Second, it excludes all documents
except "administrative" documents, which term does not
include "texts for internal use" and "informal
messages". While it is helpful to make clear, as the Code
does, that "documents" is to be given a wide meaning
so as to ensure that is not limited to pieces of paper, the second
function is, in the present context, wholly inappropriate. The
definition Article should not be used to exclude any particular
class of documents or content of information. These are matters
which should be dealt with in, and be subject to the examination
required by, Article 4 dealing with exceptions. Moreover such
use of the definition Article as is being proposed appears not
to be were permissible under the Treaty. In this context we note
that Article 255 EC does not qualify the term "document"
except by reference to the institutions and any "limits"
which might be imposed must be justified on "grounds of public
or private interest". In principle, therefore, all documents
should be accessible. We accept, however, that for practical reasons
some definition or classification of documents might be necessary
for determining what to list on the register under Article 9.
We consider this further in paragraph 164.
TEXTS FOR INTERNAL USE
78. Of greatest concern was the exclusion of internal
documents ("texts for internal use such as discussion documents,
opinions of departments"). Professor Curtin described this
as "a considerable step back compared to the status quo".
Under the current regime texts for internal use, such as discussion
documents and opinions of departments, fell within the scope of
access though subject to whatever exemptions might apply. Under
the Regulation such documents would be exempt from any consideration
whatsoever. There would be no question of the balancing of interests
and exceptions (QQ 16-7). Professor Birkinshaw queried whether
it was necessary to exclude all internal documents. He noted that
"the domestic FOI Bill seeks to give a very wide protection
in this area, wider than is common in other access regimes. The
Regulation can be criticised for a similar excessive defensiveness"
(p 141).
79. Statewatch said that the effect would be that
most documents would be permanently excluded from public access.
That "would not only exclude civil society from any role
in policymaking but would fatally undermine democratic standards
in the EU" (p 14). The European Environmental Bureau (EEB)
argued that each and every action of a public authority was, or
should be, taken on behalf of the public interest and should be
open to public control and scrutiny. Mr Hontolez said: "They
are responsible in everything they do towards the public that
has given them a mandate". The whole purpose of access to
documents was to serve this paramount interest in transparency
(p 54, Q 101). The EEB considered the definition of documents
was "a major step backward from the existing Code of Conduct
… This provision is so breathtakingly broad that it seems
designed to erect an insurmountable barrier to public understanding
and scrutiny of decision-making within the institutions"
(p 154). Taken with Article 9 (duty to provide access to a register
of documents) "an unstated motivation for its placement in
the definition becomes apparent. If 'texts for internal use' are
not considered to be documents, they will not need to be identified
or placed on the registers" (p 54).
80. The Commission's argument that the institutions
must be able to 'think in private' was criticised by a number
of witnesses. Mr Green, for the Bar European Group (BEG), said:
"I simply do not know what is meant by a document giving
an institution space to think. It would seem to cover all consultative
documents or all internal documents where ideas are mooted and
analysed. A very large number of those documents may be extremely
important in informing the public, enabling them to make comments
on legislation as it is passed or decisions as they are made.
A large category of those documents would be precisely the sort
of documents which consumer groups and interested parties would
need to have access to to be informed, in order to participate
in the process" (Q 100). Mr Hontelez, for the EEB, emphasised
that what was important for environmental organisations was access
to documents and information relating to the steps preparatory
to the taking of decisions (Q 69). Mr Popham said that the World
Wide Fund for Nature (WWF) was very often concerned "at the
correspondence stage" of the decision making process (Q 69).
81. Euro Citizen Action Service (ECAS) took the view
that discussion documents and opinions of departments should not
be exempt from access. They were often impossible to distinguish
from the first stage in drafting official documents, and might
well be the precursors to legislation or official policy. ECAS
knew of no case where access to preparatory working papers under
the Code had caused resentment or damage or amounted to unacceptable
interference in the Union's activities (p 149). In EEB's view,
precluding all access to the documents charting the course of
public decision-making was inconsistent with the notion of transparency.
Mr Hontelez said: " I do not think you want to know every
personal opinion of an official but inside the Commission and
the Council different institutions are discussing with each other,
DG Environment with DG Enterprise, or a unit with another unit.
Those are not personal observations; they are institutional observations"
(p 54, Q 104).
82. Mr Harden, for the European Ombudsman, accepted
that the institutions needed "space to think", but considered
that the relevant results of their thinking should be publicly
available when a final decision has been made. For example, when
a legal service produced an opinion for its institution on a matter,
that opinion might go through several drafts. Nobody would want
to see published the early drafts that were consigned to the wastepaper
basket. But it was far less clear to Mr Harden that the final
opinion, which was presented to the institution as the opinion
of its legal service, was an internal document (p 78, Q 144).
The EEB believed that "the scope of this limitation should
extend only to identifiable individual opinion of officials, legal
advice, and draft materials in the course of completion, unless
they have formed part of the basis of a decision or other action
and not once the decision has been taken. These limitations give
the institutions sufficient "space to think" without
eliminating all opportunity for public access during and after
the decision-making process" (p 54). The Newspaper Society
adopted the approach of the European Parliament's Committee on
Institutional Affairs[32]:
"formally adopted minutes, certain working documents and
certain other important and widely distributed preparatory material
should be generally made available" (p 151).
83. The Swedish Government believed the exclusion
of internal and non-administrative documents was much too wide
but could in principle accept the exclusion of preparatory documents
(though a preparatory document should never be withheld once it
has been sent out from an institution). This would be in line
with Swedish national legislation. A document received by a Swedish
authority was always an official document, as was a document sent
out. Documents produced but not sent out were official when the
document itself reached some degree of finality. Officials' notes
and advice on, for example, Ministers' briefs were not. Notes
of meetings with third parties, where information and views were
shared, would be accessible (QQ 210-2, 217-8).
84. The UK Government accepted that the definition
of documents needed to be tightened up. The Minister referred
to a Portuguese Presidency proposal:
"A document shall mean any content, whatever
its medium, written on paper or stored in electronic form or as
a sound, visual or audio-visual recording, concerning a matter
relating to the policies, activities and decisions falling within
the institution's sphere of responsibility, excluding informal
messages, contents which express opinions or reflect discussions
and the provision of advice as part of preliminary consultations
and deliberations within the institutions".
Even this could be improved. The Minister accepted
that while the institutions needed space to think the references
to "opinions" and to "preliminary consultations"
might be abused and exclude from disclosure documents, such as
Council working group documents, that should be accessible. A
balance had to be struck. The institutions should be able to continue
to work effectively and this might require candid advice to be
given without fear of its disclosure (QQ 167, 169, 172-4).
85. Even if the present approach is retained it
is clear that the definition would exclude far too much. The present
text of Article 4 (on which we comment in more detail below) contains
a specific exemption for the "effective functioning of the
institutions". That is capable of rendering inaccessible,
for some considerable time, any politically sensitive document,
such as briefings or at least parts of briefings for Commissioners.
Potentially a properly drawn exception in Article 4 should suffice
- there is no need for "belt and braces". Overlapping
exclusions and exceptions give out a totally wrong signal in an
instrument designed to improve openness. We note that already
the negotiations have produced at least one possible revision
of the definition of "documents" which would exclude
documents containing preliminary opinions or advice. We do not
agree there should be any broad exclusion of preparatory papers
or documents which include opinions or advice.
INFORMAL MESSAGES - E-MAILS
86. Witnesses were also critical of the exclusion
of e-mails from the scope of the Regulation on the grounds, as
stated in the Commission's Explanatory Memorandum, that they were
all 'informal' or 'equivalent to telephone conversations'. The
Newspaper Society disputed that assumption (p 152). Mr Bunyan,
for Statewatch, said: "e-mails may indeed be part of policy
development. They may be informal contact perhaps between people
on the Council and the Commission. A large amount of negotiation
now takes place by e-mail: "Here is a draft here", "here
is a re-draft there". In other words, it is the same as a
document" (Q 57). The European Environmental Bureau (EEB)
considered that the exclusion of e-mail "flies in the face
of reality". An e-mail message was a communication and, properly
viewed, a document. The EEB believed that access to such a document
should depend on its content and be tested by the same standards
as apply to any other document, namely to see whether an exception
applies (p 54).
87. In the view of Euro Citizen Action Service (ECAS),
there had to be a way of taking care of the objection that a wide
definition could discourage the use of informal internal communication
and e-mail. In certain instances, disclosure of such information
might be in the public interest, but in the vast majority of cases
it was not. ECAS believed that the dividing line would normally
be established between documents, which should be filed as archived
and those that are not (p 145). Amos and Baxter also queried why
institutions should be able to withhold "informal messages"
- especially if they exposed malpractice (p 135). Statewatch proposed
that the Regulation would only apply to documents sent or received
by the officials of the institutions in their official capacity.
Such a formula appeared in the protocol on privileges and immunities
that always existed for the officials of the European Community.
It had a legal meaning and had been shown to be justiciable (Q
59). Lord Williamson of Horton commented: "If you are looking
to control the volume I think, with care, you could perhaps exclude
these informal exchange of messages but it would be quite difficult
to define" (Q 192).
88. E-mails should not be excluded from the scope
of the Regulation. "Documents" is defined so as to catch
information captured whatever the medium ("written on paper
or stored in electronic form or as sound, visual or audiovisual
recording"). This would clearly include e-mails and, as many
witnesses pointed out, much information is created, transferred
and stored in this format. There seems to be some concern that
if e-mails were included then personal/private e-mail communications
would have to be made accessible and listed on a public register.
But personal messages are not "Commission documents"
within the meaning of Article 255 merely because they were conveyed/recorded
on Commission hardware any more than a shopping list written on
Commission stationery or personal letter delivered at an official
address. The matter ought readily to be determined by reference
to the content. Information contained in e-mail should therefore
be accessible to the same extent as other documents of the institutions.
We discuss the implications of this for the maintenance of registers
when considering Article 9, below.
EU INSTITUTIONS AND BODIES
89. The Regulation would apply to disclosure by the
European Parliament, the Council and the Commission. The definitions
in Article 3 (c), (d) and (e) make clear that the Regulation extends
to all the constituent parts of the three institutions, including
Parliamentary Committees, COREPER and comitology committees. Witnesses
welcomed the requirement that lists of committees should be drawn
up. Euro Citizen Action Service (ECAS) described it as a step
forward (p 145). Statewatch also considered it an improvement
on the prior rules, although the obligation to draw up lists applied
to Commission comitology committees pursuant to Council Decision
468/1999 (p 32). The European Environmental Bureau (EEB) said
that the Regulation should also require the list to be published
and maintained up-to-date (p 54).
90. CA believed that the Regulation, in only applying
to the Parliament, the Council and the Commission (para (b)),
was too restrictive. It should apply to all EU institutions and
bodies (p 144). Other witnesses agreed. In ECAS' view, there did
not appear to be any valid reasons to go back on current practice
encouraged by the European Ombudsman to spread codes to all Community
bodies and agencies. A number of them, like the European Central
Bank and those in the areas of health and safety, food inspection,
environment and medicines held information just as important as
the institutions. ECAS contended that, despite the wording of
Article 255, it was not the deliberate intention of the Amsterdam
Treaty to reduce the number of European public authorities applying
access to documents regimes (p 145). Lord Williamson of Horton
believed that in principle the regime should be extended to other
EU institutions and bodies, including the Court of Auditors, the
Committee of the Regions and the Economic and Social Committee.
But, he added, "it is not going to be such an easy business
to operate and manage as it may at first appear". He envisaged
particular difficulties with the Court of Auditors, where the
exception for "inspections, investigations and audits"
(Article 4 (a)) would apply (QQ 186-8).
91. Mr Peers, for Statewatch, accepted that it would
be difficult to define "institutions" more broadly in
a regulation adopted within the scope of Article 255. But in Statewatch's
view "it would be possible to adopt a regulation under Article
308 of the Treaty which would apply essentially the same principles
or very similar principles, perhaps with certain exceptions, to
the other institutions established by the European Community,
and then similarly a measure within the scope of the EU Treaty
applying to any institutions or bodies within the scope of the
second or third pillar of the European Union" (Q 53). But
Ms Durand, for the Commission, had doubts whether Article 308
could be used. A Community "objective" would have to
be identified. The very existence and content of Article 255 might
also exclude the use of Article 308 (Q 239).
92. The fact that the Regulation did not apply directly
to the other EU institutions and bodies did not mean that it was
irrelevant to them. As mentioned above, almost all the institutions
and bodies have adopted and published their own rules on public
access. Mr Green, for the Bar European Group (BEG), suggested
that the Court of Justice might begin to treat the principle referred
to in Article 1.2 TEU, that decisions are taken as openly as possible,
as a general principle of Community law. If that were the case,
the Regulation would simply be a single implementation of a broader
principle and the broader principle would apply to all other bodies
within Community law, including Member States. (Q 86). Mr Harden,
for the European Ombudsman, said that the existence of a Regulation
under Article 255, applicable only to the three named institutions,
did not remove the requirement for other institutions and bodies
to continue to have rules to deal with requests for access to
documents as a matter of good administration. One would expect
that the other institutions and bodies would review their own
rules in order to ensure that they were applying the same principles
(Q 141).
93. The Government thought that, in the light of
Article 255, it was "appropriate" to limit the right
of access to the European Parliament, Council and Commission.
But the Minister added: "we will also press for a declaration
calling for the other institutions to implement similar rules
in respect of the release of their own documents" (Q 159).
Ms Durand, for the Commission, contrasted the law (ie the
restrictions within Article 255) with "the practice".
"The practice has always been that when third nationals asked
for a document, and when no exception applied, the document was
given". She believed that the practice would continue. Ms
Preston expected the other EU institutions and bodies to adopt
the standards set by the Regulation. Ms Durand said that in the
past it had been the Legal Service's consistent advice that they
follow the same rules as the Code of Conduct (QQ 238, 244-5).
94. Article 255 EC gives a right of access only
to European Parliament, Council and Commission documents. The
scope of a Regulation made under that Article is therefore necessarily
limited to those institutions. But in principle openness, and
the rights of access, should apply to all EU institutions and
bodies. We would expect, for the reasons given by the Ombudsman,
that other EU institutions and bodies will in due course adopt
access to documents regimes in line with the Regulation. But consideration
should be given to widening the scope of the Regulation so as
to include the other institutions and bodies by adding Article
308 EC to the legal base. For the reasons given in paragraph 60
above we believe that is legally possible. It is also politically
desirable to unite the right of access in one instrument and to
present it as a system generally and widely applicable in the
Union and of which all may have the benefit.
ARTICLE 4
| Article 4
Exceptions
The institutions shall refuse access to documents where disclosure could significantly undermine the protection of:
(a) the public interest …
(b) privacy and the individual …
(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person …
(d) confidentiality as requested by the third party having supplied the document or the information, or as required by the legislation of the Member State.
NB For ease of reference, the full texts of indents (a), (b) and (c) are set out before paragraphs 110, 121 and 122 respectively.
|
EXCEPTIONS - MANDATORY OR DISCRETIONARY
95. Amos and Baxter noted that all FOI statutes have
exceptions to the general right of access to information. These
tended to vary in extent and degree. Typically, they covered types
or classes of information that must or can be withheld,
requirements to separate out and release the non-sensitive information,
and overriding reasons for disclosing the sensitive information.
How these were presented in any FOI legislation was critical to
their interpretation. Amos and Baxter described the proposed Regulation
as "atypically structured and worded in this respect".
According to Article 4, an institution "... shall refuse
access to documents whose disclosure could significantly
undermine the protection of ..." the public interest etc.
Further, the list of exceptions was large (and certainly larger
than in the Aarhus Convention), no distinction was made between
mandatory and discretionary exceptions and no override was provided
(p 135).
96. A number of witnesses contrasted the approach
taken by the Code. The Code distinguished between those exceptions
that obliged the institutions to refuse access and those that
merely permitted the institutions to deny access. (The relevant
parts of the Code are set out at paragraph 15 above). The latter
applied to the exception for the protection of the institutions'
interests in the confidentiality in their proceedings. And as
the Bar European Group (BEG) pointed out, the Court of First Instance
had held that when seeking to rely on that exception, the institution
concerned had to balance in a genuine fashion the interests of
citizens in gaining access to its documents against any interest
of its own in maintaining the confidentiality of its proceedings[33]
(p 50).
97. In its Explanatory Memorandum the Commission
states that rights of access will be granted unless disclosure
"could significantly undermine" certain specific interests.
Ms Durand, for the Commission, said: "each time access to
documents is not given, for example, demonstration has to be made
that disclosure of the document would cause real harm to this
or that particular interest"(Q 263). But witnesses questioned
whether this so-called 'harm test' would be of any great value.
The European Environmental Bureau (EEB) considered that since
the exceptions were so many and so broad, the 'harm test' offered
little hope to potential requesters. It was "little better
than a rubber stamp for refusal" (p 56). Both the Swedish
Government and Statewatch welcomed the use of the adverb "significantly"
(Q 224). But BEG doubted its strength. Mr Green said: "If
the burden is on the institution to show a risk of serious undermining
of the defined interest, that is a higher hurdle to overcome than
simply showing a significant undermining". BEG understood
the use of the word "could". "You have to have
something which permits the stable door to be closed before the
horse has bolted. You have to make an assessment before disclosure.
It is always going to be an ex ante analysis of risk and
I suppose "could" reflects that. What is missing is
a reflection of the fact that you should balance the public interest
and the other interests against the private interest in disclosure".
According to BEG the formulation used in Article 4 increased the
scope for the institutions to refuse disclosure (QQ 108-9).
98. The EEB said that the mandatory refusal requirement
('the institutions shall refuse access') was more restrictive
than many national freedom of information regimes. The proposed
Regulation would require the institutions to refuse access to
documents 'where disclosure could significantly undermine
the protection of' one of the many interests referred to in the
list of exceptions. The use of the word 'could' established too
low a threshold for mandatory refusal. The EEB believed the proposal
would be more consistent with good practice if it authorised,
but did not require, refusal where disclosure would significantly
harm one of the protected interests. This would give the institutions
discretion to balance the public interest in disclosure against
the particular harm that would result from disclosure. The EEB
noted that the mandatory refusal requirement was also in conflict
with the Aarhus Convention which states that a 'request for environmental
information may be refused if the disclosure would adversely
affect' an interest protected by one of a specified set of exceptions[34]
(p 55). Mr Popham said that the World Wide Fund for Nature (WWF)
took the view that the refusal of information should be discretionary.
The Regulation should also make it clear that, in arriving at
a decision, the institution should undertake a genuine balancing
exercise, between the need for the public to have access to the
documents and the interest of the institution in protecting the
confidentiality of its deliberations. That would follow what the
European Court had decided in the WWF case (Q 111). What,
in the opinion of the Newspaper Society, the Regulation lacked
was a "public interest override, which would enable the public
interest in disclosure to be weighed against the possible harm
of releasing exempt material" (p 152).
99. The Government did not favour exceptions being
discretionary. Mr Vaz said: " Where an exemption is justified
in our view it should be mandatory, for example, if it is a defence
or security document. Where it is not justified we do not favour
discretionary refusal by the institutions … Clarity is extremely
important in this whole area … We are also keen to avoid
any overlap and therefore potential conflict between the proposed
regulation and domestic legislation. For this reason we are strongly
in favour of exceptions of a mandatory nature. The draft Regulation
would take precedence over domestic legislation and the Freedom
of Information Bill has accommodated this through general exemption
from the duty to disclose when to do so would be contrary to EC
legislation" (Q 176).
100. The Swedish Government was not opposed in principle
to a mandatory rule but did not consider it was suitable for every
exception. The proposed exception relating to the "effective
functioning of the institutions" was, for example, "more
problematic". Even a mandatory exemption had to be balanced
against a public interest test. An identification of some kind
of harm was needed before a document was withheld, though there
might be circumstances when another overriding interest demanded
the release of the document (p 105).
101. The Code provides a good example of the undesirability
of mixing mandatory and discretionary tests. The temptation is
always there for officials to seek to shield the non-disclosure
of a document under a mandatory exception. As the proposal stands
all exceptions would be mandatory, though we accept that an element
of judgement is introduced by the words "could significantly
undermine" the protection of the interests listed in Article
4 as justifying non-disclosure. In principle we believe all exceptions
should be discretionary - adapting the existing wording, the institution
may refuse access to documents whose disclosure would
be likely to be harmful.
102. It is not, in our view, simply a question
of changing "shall" to "may". "Could"
sets too low a threshold and we believe that "would be likely
to" is more appropriate. The principle of proportionality
requires that any exceptions to the general principle of access
as stated in Article 1 of the draft Regulation must be used only
to the extent that is objectively necessary and proportionate
in a democratic society. In the exercise of the discretion the
institution should be expressly required to undertake a balancing
exercise. As the Court of First Instance said in the Carvel
case when considering the discretionary exception in the current
Code, the institution " must, when exercising its discretion
…, genuinely balance the interest of citizens in gaining
access to its documents against any interest of its own in maintaining
the confidentiality of its deliberations".[35]
And, as that Court pointed out in the Hautala
case, the institution should also apply the principle of proportionality
so as to ensure that exceptions remain within the limits of what
is appropriate and necessary for achieving the aim in view.[36]
A revised Article 4 should therefore make it clear that the principle
of proportionality requires that exceptions to Article 1 can be
used only to the extent that is objectively necessary and proportionate
in a democratic society.
EXCEPTIONS - THE LENGTH OF THE LIST
103. The European Ombudsman, Jacob Söderman,
was highly critical of the proposed Regulation claiming that it
contained a list of exemptions "... without precedent in
the modern world".[37]
But Ms Durand, for the Commission, said: "In practice the
exceptions are public interest, privacy, commercial secrets and
confidentiality where entrusted by a third party. Those are the
four exceptions, which I am quite sure you find in absolutely
every law on information". In order to help the citizen the
Commission had sought to define what fell within the term "public
interest" (Q 264). Professor Curtin believed that the wording
of the exceptions compared very poorly with more sophisticated
freedom of information legislation in Member States, including
the recent Irish legislation (Q 23). The Commission had conducted
a survey of national freedom of information laws but Mr Bunyan
(Statewatch) said: "That is different from saying that they
have actually gathered best practice and come to the evaluation
of best practice. They have not done that" (Q 62). Ms Preston,
for the Commission, queried what best practice was and doubted
whether national laws produced an appropriate solution for the
Community. The Commission's "point of departure was the Code,
because that has worked well and it has worked well for the Council
and it has worked well for the Parliament" (Q 262).
104. As a number of witnesses pointed out, the list
of protected interests (or exceptions) is long and apparently
more extensive than under the present Code of Practice operating
in the Council and Commission. The Commission claimed that the
wording of the exceptions had been spelled out more clearly. But,
according to Amos and Baxter, "This assertion is questionable"
(p 133). Mr Popham, for the World Wide Fund for Nature (WWF),
said: "That is a euphemism for "any discretion has been
removed and the exceptions have been made as comprehensive as
possible" (Q 112). Professor Curtin said: "the only
thing that the Commission has done is to put a lot more under
the heading "public interest" than it previously did
and to add a few categories that have come up in the context of
certain court proceedings before the Court" (Q 21). The Bar
European Group (BEG) said: "The problem with the long enumeration
of specific categories of excluded areas is that it weakens the
powers of the Community courts to oversee the Regulation and in
particular the Community institutions' exercise of discretionary
powers thereunder to exclude or restrict access to Community documents.
This is an unwelcome development which should be fought against"
(p 51).
105. In Lord Williamson of Horton's view the list
of exceptions was "substantially wider" than the current
one: "it simply is not true that we are just producing the
same exceptions" (Q 194). For the Government, Mr Vaz said:
"Article 4 appears longer but this is due largely to the
Commission's attempt to define the list more clearly. Some of
the additions to the list of exemptions are sensible and necessary
if we are to achieve other objectives in the European Union, for
example, an effective EU military capability which will require
some confidentiality. That said, we agree that the list should
not get out of hand. We need a general level of protection for
sensitive texts but the key is to make exemptions as precise as
possible and to minimise the possibility of the catch-all exemptions"
(Q 176). The Swedish Government took the view that Articles 1
and 4 did not fulfil the demand for a presumption of openness
and for clear and precise restrictions. The scope of restrictions
must under no circumstances be made wider than under existing
rules. The Swedish Government advocated that a more detailed list
of restrictions and more varied harm-tests should be elaborated
(p 105, Q 224).
106. The Consumers' Association (CA) called for Article
4 to be redrafted considerably. The exceptions were too broad
and vague, and the tone of the Article seemed designed to allow
officials to find excuses not to release information, rather than
encourage disclosure in the public interest. It seemed to imply
that the protection of the public interest lay in refusing access
to information. CA believed that the public interest would be
better served by an Article that stated that information should
be disclosed unless it caused substantial harm or prejudice to
certain interests. CA said: "We have serious reservations
that the exceptions as currently phrased in Article 4 could be
used to withhold almost any information relating to regulatory
affairs, EC policy formulation, or commercial interests"
(p 144). Mr Popham said: "as drafted WWF can think of no
document it could request which could not be made to fit one of
the categories if the institution from which the document had
been requested did not want to provide it" (Q 112). Ms Preston,
for the Commission, responded: "But … that assumes that
every document he asks for significantly undermines one of those
interests" (Q 265). Mr Green, for BEG, believed that much
would depend on the approach taken by the Court of Justice. "If
the Court makes very clear that the basic right contained in the
Regulation is to be given the widest possible application and
that the derogations contained in Article 4 are to be given the
narrowest reasonable scope, it is possible that the institutions
will take heed of that and adopt a more open, transparent procedure".
The Court had always construed exceptions and derogations narrowly
and the extent to which the Court imposed on the institutions
proper duties to explain their reasons for refusing documents
would be critical (Q 72).
107. Mr Harden, for the European Ombudsman, expressed
concern about the implications of the length of the list of exceptions
and the looseness of the drafting for the practical application
of the Regulation. "The ideal situation is one in which most
requests for documents could be dealt with straightforwardly by
relatively low level staff, so that a secretary can know that
this is the class of document which is always given out and therefore
if we get a request, it is given out, or, this is the class of
document which is always secret and therefore it is not given
out. The difficulty I see in applying the provisions in the draft
Regulation is that they require really quite high level judgment.
The danger is that most decisions will be fed upwards to higher
authority within the Commission for decision" (QQ 135,137).
Mr Hontelez, for the European Environmental Bureau (EEB), feared
that "Words like "shall refuse access to documents"
mean that even parts of the Commission who would like to have
a more open relationship could be prevented from that by other
parts of the Commission who feel that that should not be the case"
(Q 111). Lord Williamson of Horton also thought that there would
be difficulty in officials operating with this wider range of
exceptions. "They have got used to the slightly lesser range
and now they have got more things to examine and think about when
they get a request for a document. I think they will find it a
bit more difficult actually and in particular they will find it
very difficult to deal with the one on "relations and/or
with the Member States or Community or non-Community institutions".
There are an awful lot of documents that could fall into that
domain" (Q 197).
108. The list of exceptions appears to go further
than those in the Code of Conduct. Notwithstanding that the general
approach of the Community Courts is to construe exceptions narrowly,
some individual exceptions could remain potentially very wide.
This is a matter of fundamental concern. Given the importance
of public access in permitting democratic participation and transparent
government, restrictions on the right of citizens to freedom of
information should be subject to particularly strict scrutiny.
In assessing the scope of the exceptions contained in Article
4 of the draft Regulation, the importance of public access for
good government and healthy democratic processes should be a paramount
consideration. Accordingly a convincing justification for restricting
the exercise of the right of public access must be shown.
109. Having regard to the nature of the right
concerned and the importance attributed to the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR)
by Article 6(2) TEU, the Regulation should be measured against
the standards set by the ECHR when defining limitations that may
be legitimately claimed by EU institutions to restrict access
to information. In the absence of a cogent and convincing justification,
the exceptions to the right of public access to EU information
should be no wider under the draft Regulation than the exceptions
to Articles 8 (2) and Article 10 (2) of the ECHR.[38]
| Article 4
Paragraph (a)
(a) the public interest and in particular:
—public security,
—defence and international relations,
—relations between and/or with the Member States or Community or non-Community institutions,
—financial or economic interests,
—monetary stability,
—the stability of the Community's legal order,
—court proceedings,
—inspections, investigations and audits,
—infringement proceedings, including the preparatory stages thereof,
—the effective functioning of the institutions;
|
THE PUBLIC INTEREST
110. Ms Durand, for the Commission, said that in
order to help the citizen the Commission had sought to define
what fell within the term "public interest" (Q 264).
But the European Environmental Bureau (EEB) said: "This catalogue
of exceptions, undeservedly masquerading under the collective
notion of 'the public interest', establishes a set of loopholes
large enough to permit the entire Community decision-making process
to disappear from sight" (p 56). Mr Keith Vaz MP, Minister
for Europe, believed that "the only exception" would
be where there were important security issues as we developed
the defence and security policy (Q 152).
111. Amos and Baxter noted that Article 4(a) was
the only category of exception that made specific reference to
the "public interest" and, as drafted, it appeared that
"the public interest is only served through non-disclosure!".
In their view the introductory reference to "public interest"
should be deleted and Article 4 should merely list the given exceptions
(p 136). In Statewatch's view, an important point was that the
Regulation should say the list of exceptions was exhaustive. Mr
Peers said that the use of the term "in particular"
at the end of sub-paragraph 8 suggested that they are non-exhaustive.
"That would mean that the Community officials can make up
new exceptions whenever they feel like it". Any addition
to the exceptions should be subject to the Community's legislative
procedure (Q 60).
RELATIONS BETWEEN AND/OR WITH THE MEMBER STATES OR
COMMUNITY OR NON-COMMUNITY INSTITUTIONS
112. Witnesses were critical of the apparent width
of the exception for "relations between and/or with the Member
States or Community and non-Community institutions". In the
EEB's view this seemed to be "all encompassing and capable
of covering virtually every communication between the institutions
and others" (p 56). Mr Harden, for the European Ombudsman,
described this exception as "potentially very wide. Given
the structure of the European Union, most of the interesting things
that the institutions and bodies do involve relations with the
Member States, with other Community institutions or with non-Community
institutions. It seems likely that most of the documents which
anyone might want to see could fall within this category"
(p 78). Lord Williamson of Horton agreed: "The Member States
love that in there … because it deals with all the sorts
of things that the Member States are much concerned about in Council
discussions". He thought that the phrase would also encompass
practically everything that went on in COREPER and in Council
Committees (Q 194).
FINANCIAL OR ECONOMIC INTERESTS
113. The Code of Conduct protects "the Community's
financial interests" but the proposed Regulation refers to
"financial or economic interests". The EEB asked whose
'financial or economic interests' would be relevant. It would
appear not to be just the Community's. The need for a wider exception
had not been explained (p 56).
THE STABILITY OF THE COMMUNITY LEGAL ORDER
114. An exception for "the stability of the
Community legal order" is also new. Professor Curtin believed
this exception to be based on "questionable interpretations"
of the language used in certain decisions of the Court of First
Instance,[39]
where protection had been given to opinions of the Legal Service
of the Council and communications between the Commission and national
courts (Q 21). The EEB asked: "What document request does
the Commission think could overthrow the Community legal order,
whatever that is understood to be?" (p 56). Ms Jäderblom,
Swedish Ministry of Justice, said: "We accept the protection
of equality of arms during court proceedings etc but this interest
is strange to us" (Q 224). Mr Peers, for Statewatch, acknowledged
that the exception had some basis in law but appeared to go further
than the existing case law of the Community courts. The stability
of the Community legal order could go well beyond access to documents
of the institutions' legal services. Statewatch saw no convincing
reason for the exception to go further than such documents and
had doubts even as to whether they should be excluded, except
in cases relating to pending proceedings before the Court of Justice
(QQ 46,60).
INFRINGEMENT PROCEEDINGS
115. Also new is an exception for the protection
of "infringement proceedings, including the preparatory stages
thereof". Professor Birkinshaw noted that this provision
would exempt an important area where the practices of the Commission
have been criticised by the European Ombudsman (p 141). Lord Williamson
of Horton drew attention to the implications of the reference
to "preparatory stages" - in practice they might go
on for a very long time (Q 194). Mr Peers, for Statewatch, said:
"It is not quite clear how far the case law allows infringement
proceedings documents to be excluded but the way the Regulation
is worded would settle this point. Even reasoned opinions issued
during the infringement proceedings would definitely be excluded
and it is not yet clear from the case law that they are excluded".
Mr Peers drew attention to the concern that had been expressed
by the European Ombudsman about the lack of public information
and complainants' information on infringement proceedings. Statewatch
believed that there should be more information available about
why the Commission terminated infringement proceedings. The public
should be in a position to judge whether the Commission acted
appropriately in deciding to close the proceedings (QQ 46, 60).
116. According to Mr Harden (European Ombudsman)
this proposed exception indicated that the Commission intended
to keep secret everything to do with its role of enforcing Community
law, including the lobbying that goes on. The secretiveness of
the Commission's procedures had been criticised by many citizens,
especially those who have complained to the Commission about infringements
of Community law by a Member State. These procedures should be
made more transparent, not less. In Mr Harden's view this category
of "public interest" should be deleted (pp 78, 81).
117. The EEB explained that infringement proceedings
often originated with a complaint from a citizen or company and
complainants had experienced difficulty in learning what has happened
with their complaints. By specifically mentioning the preparatory
stages of infringement proceedings, which might include the investigation
of a citizen's complaint, the new exception threatened to preclude
access for the very citizens or organisations responsible for
starting the process leading to an infringement proceeding. No
justification for this exception had been given. The EEB contended
that even if there was one, the exception should be narrowed so
that the complainant's right of access to documents was protected
(p 56).
THE EFFECTIVE FUNCTIONING OF THE INSTITUTIONS
118. The Code of Conduct currently protects "the
institutions' interest in the confidentiality of its proceedings".
The proposed Regulation provides an exception for "the effective
functioning of the institutions". Lord Williamson of Horton
explained the significance of the change. "I can absolutely
assure you that those who operate these systems would treat those
as quite different proposals. "Confidentiality of the proceedings"
is seen to cover such issues as where there is a confidential
minute recording the views specifically by name, for example,
of Commissioners or representatives of Member States in the Council
and so on and they might not wish to be quoted like that word
for word. That would be seen as "confidentiality of its proceedings".
Everybody would understand that. If they were told now that it
is the "effective functioning of the institutions" it
would have to be treated much more widely. I think there are quite
big differences" (Q 194).
119. In the view of Euro Citizen Action Service (ECAS)
turning the present discretionary exception into a mandatory one
was a major step backwards: "The European Parliament must
insist on removing this clause, which is in contradiction to the
right of access established by Article 255" (p 148). The
EEB asked: "Does this extraordinarily vague and broad exception
mean that EU law and policy must be made in secret if the institutions
are to be effective? How much trust should a citizen have in an
institution that dares not function in openness?" (p 56).
Mr Harden, for the European Ombudsman, said that the inclusion
of this exception as a new category of public interest seemed
to be intended to abolish the rule, established by the Courts,
that an institution must strike a balance between its interest
in the confidentiality of its proceedings and the applicant's
interest in disclosure of the document. The exception seemed unnecessary
and could be deleted (p 81). BEG said: "This vaguely-worded
exception may well be used by the institutions to restrict access,
in circumstances where it might otherwise be available, and given
the mandatory nature of the provision, the institutions do not
need to demonstrate that they have carried out any balancing exercise"
(p 50).
120. The Swedish Government said that this exception
was not acceptable: "It is a firm Swedish belief, through
centuries of national experience, that access to documents will
make the institutions more efficient in the long run" (p
105). Ms Preston, for the Commission, believed that scope of the
exception would be narrowed. The Council had already proposed
limiting the exception to "the effectiveness of the decision
making procedure … " (Q 259).
| Article 4
Paragraph (b)
(b) privacy and the individual, and in particular:
—personnel files,
—information, opinions and assessments given in confidence with a view to recruitments or appointments,
—an individual's personal details or documents containing information such as medical secrets which, if disclosed, might constitute an infringement of privacy or facilitate such an infringement;
|
PRIVACY AND THE INDIVIDUAL
121. Witnesses appeared to be generally content with
this provision. Amos and Baxter presumed that the list was not
exhaustive and that any information about a named individual must
be withheld. The current drafting was somewhat ambiguous in this
respect. They also noted that many FOI statutes allowed the release
of information after names have been suppressed or the owners
have given their permission. This was a sensible condition. For
consistency and clarity, consideration should be given to amending
this exception to read simply as "personal privacy, unless
authorised by the named person" (p 136). ECAS had no doubt
that there should be a clear mandatory exemption for privacy and
said that further measures to protect privacy should be included
in the Regulation (p 147). Amos and Baxter and also Professor
Birkinshaw observed that the institutions should handle personal
information with due regard to the 1995 Data Protection Directive
(pp 136, 141). ECAS emphasised the importance of the right of
individuals to inspect their own files. ECAS argued that
the Regulation should contain a commitment to implement Article
286 of the EC Treaty. Community measures on the protection of
personal data (the Data Protection Directive no. 95/46/CE) should
also apply to the EU institutions (p 147).
| Article 4
Paragraph (c)
(c) commercial and industrial secrecy or the economic interests of a specific natural or legal person and in particular:
—business and commercial secrets,
—intellectual and industrial property,
—industrial, financial, banking and commercial information, including information relating to business relations or contracts,
—information on costs and tenders in connection with award procedures;
|
COMMERCIAL AND INDUSTRIAL SECRECY
122. Amos and Baxter set out the reasons why, in
the current social climate, it was not unreasonable that citizens
should have rights of access to commercial and industrial information
held by EU institutions. The disclosure of such information might:
contribute to the administration of justice and
enforcement of the law;
reveal and avoid serious malpractice, impropriety,
fraud or breach of public law;
ensure effective oversight of expenditure of public
funds;
keep the public adequately informed of any danger
to public health or safety or to the environment;
ensure that any public authority with regulatory
responsibilities is adequately discharging its functions;
ensure the public obtains value for money; and
avoid waste or misuse of public funds.
But they noted the diversity of approach in Member
States to the question of disclosure of information of commercial
value. They believed that it would be better to simplify the wording
in Article 4 so that this exception read simply as "commercial
interests of any person". In addition comprehensive guidance
(to be included in the Rules of Procedure of all EU institutions)
should be prepared on the interpretation of "commercial interests"
and how these might be "significantly harmed" by the
disclosure of information (p 137).
123. The EEB doubted whether a more sweeping exception
for business information could be formulated. The Regulation needed
a more precise exception which goes no further than is necessary
to protect legitimate trade secrets the confidentiality of which
has been expressly requested and the disclosure of which would
harm a commercial or industrial interest by helping a competitor
(p 56). ECAS also thought that any exemption on the grounds of
commercial and industrial secrecy should be narrowly defined (p
147). Both the EEB and ECAS considered that Article 4 (4) of the
Aarhus Convention, referring to areas where confidentiality is
protected by law, provided an appropriate precedent. ECAS added:
"a clear distinction has to be made between documents commenting
on the market situation in general, and the information which
should not be released since disclosure would have a direct impact
on the competitive position and market share of the organisation
or company concerned, and/or result in financial loss. In other
words, it has to be shown that disclosure would cause harm"
(p 147).
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Article 4
Paragraph (d)
(d) confidentiality as requested by the third party having supplied the document or the information, or as required by the legislation of the Member State.
|
CONFIDENTIALITY
124. Ms Preston, for the Commission, explained that
Declaration 35[40]
to the Amsterdam Treaty required the Regulation to give Member
States the right to say whether they want a document to be handed
over or not. "What we have done is that we have extended
this right to all authors of incoming documents" (Q 273).
Witnesses expressed concern that this exception might be abused.
Professor Birkinshaw feared that "confidential" could
become a routine designation. Under the domestic FOI Bill, for
items to be exempt on grounds of confidentiality, confidentiality
would have to amount to that which can be protected by the law
of confidentiality, not simply that stamped 'confidential'. Professor
Birkinshaw's view considered that test to be much more appropriate
(p 141). CA also thought that the provision needed to be reformulated:
"As currently drafted, this would have the effect of acting
as a pre-emptive gagging clause on the release of critical information"
(p 144). As regards the confidentiality of Member State documents
Article 4 (d) would, Mr Harden, for the European Ombudsman, said,
provide two possibilities; first if such confidentiality is required
by the legislation of the Member State and, second, if it was
not so required but was requested by the authorities of the Member
State (Q 133). BEG said that Article 4 (d) "effectively confers
on Member States the right once again to legislate themselves
out of the protection of the Regulation, because it simply says
"or as required by the legislation of the Member State".
It does not impose any limits upon the discretion of the Member
State as to how they legislate" (Q 115).
125. The Newspaper Society recognised that the position
of third parties was a sensitive issue but the Society did not
accept that access should be refused if the material was not of
a confidential nature (p 152). The EEB considered that confidentiality
should not automatically attach upon request. The institution
should weigh a request for confidentiality against the public
interest in disclosure (p 57). Mr Harden, for the European Ombudsman,
contended that the Regulation should limit the right of third
parties to submit documents in confidence to cases which fall
under grounds set out in law, such as commercial confidentiality.
Otherwise all the third party documents which a citizen was likely
to want to read might be excluded in practice (p 80). Statewatch
argued that Article 4(d) should be tightened up. If the third
party or Member State that supplied a document wants to restrict
access to the document, it should have to show that there was
a specific exception that applied. It should not have carte
blanche to insist that the document was not released. If,
for example, Member States provided information on their food
safety inspections to the Commission or the Commission somehow
had information directly from private parties on food safety,
the Member States or the private party concerned should not be
able to insist without more that the information should remain
secret. One of the specific interests set out in the rest of the
Regulation would have to be shown to be applicable (Q 60).
126. Amos and Baxter pointed out that confidential
information was invariably exempted from automatic disclosure
under FOI legislation. But the definition of what constituted
"confidential" information varied between countries.[41]
In Amos and Baxter's view, it should not be solely up to the supplier
of information to claim confidentiality (and thus prevent its
subsequent disclosure). The recipient should decide whether to
accept and hold the information in confidence. The EU should consider
amending the exception to read simply as "the protection
of information supplied, received and held in confidence"
(p 138).
127. The Swedish Government was equally concerned
about this exception. The "originator control" set out
in the last paragraph of Article 4 was not acceptable; Declaration
no 35 to the Amsterdam Treaty was not a good enough basis for
extending the protection to other third parties. There was just
as much public interest, in understanding decision making process,
in having access to submissions made to the institutions as to
documents produced by the institutions. Any restriction pertaining
to incoming documents as such must be limited to protecting only
the most sensitive types of information given in confidence (p
105). Ms Preston, for the Commission, expected the principle of
"originator control" to be diluted but not totally removed.
The Council had expressed concern about defence documents, such
as those emanating from NATO. She thought that there might be
a need for other specific cases (Q 273).
PROTECTING WHISTLEBLOWERS
128. The EEB said that the Regulation should also
include a separate provision to protect the identity of "whistleblowers"
(p 57). The Bar European Group (BEG) referred to the Stanley
Adams case.[42]
Mr Adams had given information on his Swiss employer to the Commission.
His identity was disclosed and Mr Green said: "he was then
subject to some fairly draconian consequences under Swiss law.
He sued the Community for damages and succeeded upon the basis
that there is a general principle of confidentiality in Community
law. I imagine that would have to have been built into the Regulation,
come what may, as a derogation from the right of access to documents"
(Q 114). ECAS referred to the case of Mr van Buitenen and commented
that the Regulation should provide for protection to support the
priority to combat fraud (p 146).
129. Before we comment on particular exceptions
we should make two general points. First, though the Commission
intended to be helpful in its structuring of Article 4 it has
produced a long, non-exhaustive, list of exceptions. The overall
impression that the list gives is that secrecy and not openness
best serves the public interest. Second, there is a certain lack
of coherence in the Article. For example paragraph (a) identifies
interests to be protected while (b) lists types of document. We
recognise, however, that this may be unavoidable.
130. Turning to paragraph (a) some exceptions
are unsatisfactory because they are unclear (eg "stability
of the Community's legal order") or excessively wide (eg
"financial and economic interests"; and "relations
between and/or with the Member States or Community or non-Community
institutions", which would potentially exclude all discussion
in the Council and its committees and working groups) or controversial
(eg "infringement proceedings", where disappointed
complainants may suspect a secretive political compromise between
the Commission and the Member State concerned).[43]
We acknowledge that in the light of what we have said above (in
the context of Article 3 and the definition of "documents")
the inclusion of a head to protect the interests of the decision
making process is needed. However, the scope of "the effective
functioning of the institutions" is clearly too wide. We
were told that amendments have been made to the text in order
to limit the scope of this exception. A narrower yet workable
text must be found. Each of the other heads needs to be examined
critically to ensure that it is not excessively wide.
131. The other exception that attracted substantial
criticism was that for "requested" confidentiality in
paragraph (d). While, as mentioned above, the removal of the authorship
rule has been welcomed as a step forward from the Code, the potential
effect of Article 4 (d) could be to eliminate this gain. We note
the explanation given by the Commission by reference to Declaration
35 to the Amsterdam Treaty. We question whether this is compatible
with the spirit of openness so frequently invoked by Member States
and we see no reason for the Declaration to be extended to third
parties. There should be an exception for confidentiality but
this should be available only where it is objectively justifiable.
ARTICLE 5
| Article 5
Processing of initial applications
1. All applications for access to a document shall be made in writing in a sufficiently precise manner to enable the institution to identify the document. The institution concerned may ask the applicant for further details regarding the application.
In the event of repetitive applications and/or applications relating to very large documents, the institution concerned shall confer with the applicant informally, with a view to finding a fair solution.
2. Within one month of registration of the application, the institution shall inform the applicant, in a written and reasoned reply, of the outcome of the application.
3. Where the institution gives a negative reply to the applicant, it shall inform him that, within one month of receiving the reply, he is entitled to make a confirmatory application asking the institution to reconsider its position, failing which he shall be deemed to have withdrawn the original application.
4. In exceptional cases, the one-month time-limit provided for in paragraph 2 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.
Failure to reply within the prescribed time-limit shall be treated as a negative response.
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APPLYING FOR DOCUMENTS
132. As Lord Williamson of Horton explained, though
the Commission was claiming some credit for some minor changes,
the basic scheme for handling requests for documents remained
unchanged. The applicant has to state clearly what he or she wants.
Then there is one month for the institution to reply. If the application
is refused there is one month in which the applicant can make
a so-called confirmatory request and then there is a further month
for the institution to reply (Q 183).
133. Requests must be made in writing. In Amos and
Baxter's view, the Regulation should be amended to allow the request
to be transmitted by electronic means (p 139). The Government
saw potential for the application process itself becoming more
transparent, in particular by modernising the process and making
it more user friendly. For example, an institution might be obliged
to acknowledge receipt of a request for access in the form of
a standard response that could include an outline of the application
process (Q 181).
134. Requests would also have to be made "in
a sufficiently precise manner to enable the institution to identify
the document". Both the Newspaper Society and Euro Citizen
Action Service (ECAS) advocated that there should be a duty on
the administration to give reasonable assistance to a person seeking
a document (p 150). The Society also suggested the establishment
of European metadata[44]
(p 152).
135. The European Environmental Bureau (EEB) wanted
the Regulation to be more precise as to what the applicant would
receive. A response was not the same thing as supply of the document
requested. The difference could be abused. The documents should
be delivered within the time limits, not simply a positive decision
(Q 76). Ms Preston, for the Commission, said that as a general
rule the Commission sent out the document with the letter giving
the reply. But she agreed that the Regulation might make clearer
"that the reply equals a document" (Q 274).
136. We agree that applications made by electronic
means should be expressly permitted. Decisions and documents if
available in electronic form could, at the applicant's request,
also be communicated to him or her by such means. Article 5 should
also stipulate that, wherever possible, the documents requested
are to be enclosed with the decision granting access. Further
consideration should be given to the Minister's suggestion for
an acknowledgement of receipt of the request. If not in the Regulation,
there should be such a requirement in the institutions' Rules
of Procedure. We can see this as having advantages in encouraging
prompt compliance with other procedural rules and the timetables
specified in the Regulation.
REPETITIVE APPLICATIONS
137. The Code of Conduct has a paragraph dealing
with "repeat applications": "In consultation with
the applicants, the institution concerned will find a fair solution
to comply with repeat applications and/or those which relate to
very large documents". There had been difficulties in determining
what fell within this provision. Mr Peers, for Statewatch, who
with Mr Bunyan has accounted for a substantial percentage of requests
for documents relating to justice and home affairs, described
his attempts to obtain copies of Council Working Group agendas.
"Even though I was only applying once for those agendas,
they said, "That is a repeat application because it is for
a number of documents which are within the same field". That
counts as a repeat application". That interpretation had,
Statewatch said, been overturned by the Ombudsman.[45]
But the Commission had not explained why it had changed the word
'repeat' to 'repetitive'. Statewatch said it was a "thinly
disguised attempt to by-pass the European Ombudsman's ruling in
the Statewatch complaint". In Mr Peers' view, it as "an
attempt to prevent diligent researchers, such as myself and organisations
such as Statewatch, from making more than a handful of applications
a year" (pp 18, 30, 33, QQ 37, 38, 46,58). The Newspaper
Society, on the other hand, accepted that the institutions should
be able to refuse unreasonably large requests. But where a request
was refused on the grounds of repetitiveness or the quantity of
material requested there should be a requirement to indicate the
cost or time involved in providing the information so that its
decision could be reviewed. In the Society's view the Regulation
should not simply leave the matter to informal discussions "with
a view to finding a fair solution" (p 152).
138. Witnesses noted that while the institution must
confer with the applicant if requests are repetitive or relate
to very large documents with a view to finding a fair solution
the Regulation failed to say what might be done if a fair solution
could not be found or agreed (p 139). Though consultation with
the applicant is possible under the current Code, in Mr Bunyan's
experience any discussion had been rare in practice (Q 38).
139. Article 5 does not make clear that a distinction
can be drawn between repeat requests or requests for large documents
which are genuine and for legitimate reasons and applications
which are vexatious or otherwise an abuse of the procedure. If
the applicant is prepared to pay the costs, repetitive requests
should not be automatically rejected. The Regulation might also
make clear that the same time limits apply as regards attempts
to find a fair solution. A failure to find a solution upon expiry
of the time limit should be treated as a negative decision, thus
enabling the applicant to move on to the next stage in the procedure
(the confirmatory application). The Regulation should also expressly
provide that the institutions are entitled to reject applications
which, objectively judged, are abuses of the system.
THE ONE MONTH PERIOD
140. Euro Citizen Action Service (ECAS) believed
that the one month time limit for dealing with requests was a
deterrent to use of the access to documents system (p 150). The
European Environmental Bureau (EEB) said that one month was excessive
in comparison with certain Member State regimes. The Regulation
should specify a shorter time limit for response as well as a
time limit for supply of the documents requested. The EEB also
contended that the proposal was not in conformity with the Aarhus
Convention[46]
(Q 76). Statewatch thought that the period should be two weeks.
They criticised the present delays, especially those caused by
the summer and other holidays (p 15, Q 63). ECAS queried
why the EU Institutions should not be capable of adopting the
best practice, where access was immediate. Desk officers responsible
for particular legislation or policies could normally locate such
material easily (p 150). The Newspaper Society emphasised the
importance of swift responses for the media. A mechanism might
usefully be introduced whereby certain requests could be expedited
(p 152).
141. The Swedish Government, commenting on the one
month period specified in Articles 5 and 6, said that the Regulation
should place an express duty on the institutions to handle applications
rapidly. The long maximum time limits ought to be "extreme
exceptions" (p 105). Amos and Baxter thought that in general
the arrangements set out in Articles 5 and 6 were satisfactory
but problems might arise over persistent delays by institutions
in responding to information requests or confirmatory applications.
They suggested that these might be overcome if institutions were
required to publish performance statistics (p 139).
142. Ms Preston, for the Commission, did not believe
the time periods could be reduced. The Commission's resources
were limited. The one month and the extra month were maximum periods
but necessary ones. Where documents could be provided faster they
were. But where documents had to be dug out of the archives then
it could take up to a month or longer (p 57).
143. The Regulation should adopt the approach
taken in Article 4(2) of the Aarhus Convention. There should be
an obligation on the institutions to process requests as quickly
as possible. The Regulation should make clear that the one month
period is to be regarded as the maximum time available, not the
norm. We also support the idea that the institutions should be
required to produce performance statistics which show the time
taken in processing applications.
FAILURE TO REPLY
144. Under the proposed Regulation, a failure to
reply is treated as a negative response. The European Environmental
Bureau (EEB) said that if failure to reply were to be considered
to be a positive response, the incentive on the institutions to
meet the time limits would increase. Moreover, a failure to respond
was equivalent to a failure to give a reason for the refusal.
This, again, in EEB's view, conflicted with the Aarhus Convention.[47]
A failure to give a reason for the refusal prejudiced the confirmatory
application since the applicant could only guess what reason,
if any, the institution had for not responding (Art 5 para 4).
145. It is unacceptable for an applicant to be
required to make a confirmatory application by reason of the default
of the institution concerned in failing to respond. We find it
difficult to see what excuse there can be for a failure to respond
at all within the initial one-month period, especially as there
is provision for a further one month extension. The sanction for
failure should be strengthened and there should be consistency
of approach in Articles 5 and 6. In both cases, a refusal to reply
at all within the time limit should have the same consequences.
A consistent approach would remove any incentive to delay at the
initial application stage.
ARTICLE 6
| Article 6
Processing of confirmatory applications; remedies
1. Where the applicant submits a confirmatory application, the institution shall reply to him in writing within one month of registration of the application. If the institution decides to maintain its refusal to grant access to the document requested, it shall state the grounds for its refusal and inform the applicant of the remedies open to him, namely court proceedings and a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.
2. In exceptional cases, the time-limit provided for in paragraph 1 may be extended by one month, provided that the applicant is notified in advance and that detailed reasons are given.
Failure to reply within the prescribed time-limit shall be treated as a positive decision.
|
FAILURE TO REPLY TO CONFIRMATORY APPLICATION
146. Under the proposal a failure to reply to a confirmatory
application is deemed an acceptance, not a refusal as at present
under the Code of Conduct. Statewatch acknowledged that this was
an improvement. Mr Peers welcomed the obligation to hand out a
document if the institution did not reply to the confirmatory
application in time (p 30, Q 46). Lord Williamson of Horton commented:
"That is perfectly reasonable. If the Secretary General is
so idle that he cannot send it out in one month he should be penalised
to the extent of it being a positive response. I was very, very
careful when I was there, I respected this religiously" (Q
195). Euro Citizen Action Service (ECAS) believed that Article
6 strengthened the citizens' chances of obtaining access, and
put pressure on the Institutions to justify in time any negative
response (p 150). Ms Preston, for the Commission, indicated that
the presumption in favour of a positive decision would remain
in the proposal (Q 277).
147. Mr Popham said that the World Wide Fund for
Nature (WWF) regretted the absence from the procedure of an intermediate
process between the present method of applying for documents and
the remedies provided. Resort to the Community Courts was a "very
heavy sledge hammer" where for example the request was for
sight of only one letter (QQ 70, 117). The Bar European Group
(BEG) agreed. Mr Green said: "there should be an intermediate
decision maker who can force an institution to produce a document
long before the courts have to intervene, because the relevance
of documents is often transient. By the time you get to the Court,
you probably have no remaining interest in the document at all"
(QQ 72, 116).
148. The suggestion made by the WWF that some
sort of intermediate dispute resolution procedure should be established
merits examination. Its purpose would be to enable disputes over
access to be resolved quickly at an early (pre confirmatory application)
stage so that the purpose for which a document is being sought
is not frustrated by the time taken up in exhausting the procedure
in Articles 5 and 6 and in an appeal to the Court or the Ombudsman.
It is possible that an independent person might be given the task
of dealing, on a written arguments only basis and within an expedited
time-frame, with cases of refusal. It would have to be clear that
the intermediate procedure would be without prejudice to the right
of recourse to the Ombudsman or the CFI. We anticipate that one
objection might be that a new office would have to be created
and this would involve resources. In the United Kingdom it is
proposed that the Data Protection Commissioner should also be
the Information Commissioner. In the Community context, we see
no immediate reason why, similarly, the proposed European Data
Protection Supervisor should not also be the Access to Documents
Supervisor.
149. We note that the Commission's proposal to
reverse the rule in the Code so that a failure to reply to a confirmatory
application would be deemed a positive decision to grant access
may not be accepted by the Council and the Parliament. A deemed
refusal avoids the problem of a document which on any test would
not, because, for example, of its strategic importance for the
security of the Union and its Member States, be disclosed, falling
by default into the public domain. But not every case of default
may involve a consideration and balancing of conflicting public
interests and there remains a need for a prompt and effective
sanction for a failure to reply to a confirmatory application.
ARTICLE 7
| Article 7
Exercise of the right to access
1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy.
The costs of his doing so may be charged to the applicant.
2. Documents shall be supplied in an existing language version, regard being had to the preference expressed by the applicant.
An edited version of the requested document shall be provided if part of the document is covered by any of the exceptions provided for in Article 4.
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MEANS OF ACCESS
150. The European Environmental Bureau (EEB) noted
that the proposed Regulation did not say who would make the choice
between consulting the document and receiving a copy. The Regulation
should clarify that the choice should be the applicant's. The
EEB said that the Regulation should make explicit provision that
a document should be supplied in the form requested, if it was
possible to do so. The EEB drew attention to the requirement of
the Aarhus Convention that documents be supplied in the form requested,
subject to certain conditions[48]
(p 58).
151. The Regulation should give the applicant
an express right to choose the means of access and, if he or she
elects to receive a copy, to specify its form, for example by
electronic means
COSTS
152. A number of witnesses were critical of the lack
of detail in the costs provision. As regards the current practice,
Mr Bunyan, for Statewatch, said that the Council's charges were
quite reasonable[49]
and had recently been waived (Q 43). CA noted that unreasonable
charges were a barrier to access. The Regulation should specify
a limit to the costs that could be charged to applicants (p 144).
In the view of the European Environmental Bureau (EEB), the Regulation
should state that costs should not exceed a reasonable amount.
Furthermore, a schedule of costs should be published. The schedule
of costs should also inform the potential applicant under what
circumstances costs may be waived, for example for a small number
of copies or if the request is for documents for educational or
non-commercial use (p 58). The Newspaper Society suggested that
a differential charging scheme should be considered. Fees might
be charged for commercial users but not individuals, non-profit
organisations and the media. The Society proposed that, in line
with the American approach, fees should be waived for requests
that were in the public interest (p 152). Amos and Baxter observed
that while the applicant "may" be charged for copies
the Regulation apparently allowed no other charging (eg
for information recovery or processing). This policy was laudable
but dangerous. Individuals or pressure groups can make excessive
demands, strain institutional resources, and undermine the service
to others. They suggested that the Regulation should be amended
to allow "reasonable costs to be recovered" (p 139).
But the EEB thought that the Regulation should specify that inspection
was free and that search time was not to be charged (p 58).
153. We accept that exercise of the right of access
may be made conditional on the payment of a fee, the level of
which may in turn be dependent on such factors as the manner in
which access is given and the volume of the material requested.
It is also important that, as under the Code, the institution
should be allowed to waive fees in particular cases. Institutions
should be able to measure and determine their costs accurately
and should set fees in a transparent and accountable way. The
point is well made that "unreasonable fees" act as a
disincentive. We doubt whether the details need to be set out
in the Regulation itself.
PARTIAL ACCESS
154. Mr Peers, for Statewatch, welcomed the provision
which confirmed the case law of the Court of First Instance that
documents would have to be released in part (Q 46). Professor
Curtin explained that in the Hautala case the Court had
held that the institutions were under an obligation to grant partial
access to their documents. If there was confidential information
contained in certain documents, then they had to blank out that
information and grant access to the rest. She added that the Council
had been very opposed to this development because it felt that
it would amount to giving a right to information, as such, and
not just simply to a document as it existed. Moreover it would
involve a considerable amount of extra work. The Hautala case
had been appealed by the Council to the Court of Justice. But
the Commission, in putting forward the present draft, appeared
to be taking a different view (QQ 9, 22). The Swedish Government
supported the inclusion of a rule on partial access. But the present
text needed to be clarified, in particular so as not to give the
impression that deleting sensitive information did not amount
to distorting documents (p 105). Ms Preston, for the Commission,
described the difficulties which the Hautala decision was
causing. "Briefings, for instance, are a case where, whereas
previously they would have been excluded as something which was
internal and rather sensitive, with the Hautala decision
most briefings, at least in the Commission (at least when I do
them), are 90 per cent factual with maybe just a sentence at the
end saying "Watch out for Mr So-and-so because he can be
difficult" (Q 253).
155. We welcome the principle of partial access
being enshrined in the Regulation. This is a significant step
forward from the existing regime.
ARTICLE 8
| Article 8
Reproduction for commercial purposes or other forms of economic exploitation
An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purposes without the prior authorisation of the right-holder.
|
EXPLOITATION FOR ECONOMIC PURPOSES
156. The existing rules prohibit the reproduction
of documents for commercial purposes. In Statewatch's view, that
ban did not apply to charities selling compilations of documents
"and many other situations". The proposed ban on circulating
a document for 'economic purposes' would be wider than the existing
rules, and might arguably be used to restrict publication of documents
by non-profit NGOs. Statewatch believed that institutional documents,
once released, should be in the public domain except where they
are clearly used for "commercial gain". The formulation
"exploit it for any other economic purposes" would give
unacceptable discretion to the institutions (pp 18, 33). The European
Environmental Bureau (EEB) believed Article 8 to be unnecessarily
broad and restrictive (p 58). Professor Curtin thought that
Article 8 would forbid a newspaper from publishing information
for any economic purpose and thus the media could not take advantage
of the Regulation (Q 31). Mr Green, for the Bar European Group
(BEG) said: "One asks oneself what is the purpose of allowing
someone to have access to a document when you then take every
step possible under Article 8 to suppress the use of the document
… "any other economic purpose" presumably includes
things like journalism, academic publications for which one is
paid a miserly fee and preparing a legal case even" (Q 118).
Ms Preston, for the Commission, accepted that the phrase "commercial
purposes" might be clarified. What the Commission was concerned
about was resale of the documents without authorisation. It was
not intended to cover journalism (Q 278)
157. Article 8 as presently drafted is unclear
as to its essential purpose which, as we understand it, is to
prohibit reproduction and resale of documents for gain without
authorisation. It should be made clear that the Article is not
intended to fetter the media when drawing attention to and commenting
on EU government and business or the use of the material for academic
purposes.
ARTICLE 9
|
Article 9
Information and registers
Each institution shall take the requisite measures to inform the public of the rights they enjoy as a result of this Regulation. Furthermore, to make it easier for citizens to exercise their rights arising from this Regulation, each institution shall provide access to a register of documents.
|
MAINTENANCE OF REGISTERS
158. The Code of Conduct contains no obligation to
keep a public register or index of documents held by the institution.
The Council has, however, established one. The Commission's website
includes an item called the President's Mail but as explained
in paragraph 26 above it does not contain a list of documents.
159. Professor Birkinshaw thought that the reference
to a register was welcome, although the provision was very vague.
He noted that the UK legislation would not impose a duty to maintain
a register or index of documents and commented that the Government
had steadfastly denied the need for one in spite of the experience
of their value in overseas regimes. If they were to exist in domestic
arrangements, this would only be on a voluntary basis which, Professor
Birkinshaw commented, too often produced inertia (p 140). Mr Vaz,
however, said that the Government was strongly in favour of registers
to facilitate the exercise of the right of access. It also saw
a need to make people more aware of their rights (Q 181). The
Swedish Government welcomed the duty to set up registers. But
the numbers of registers should be limited. The Regulation should
make clear that each institution should have a central register
and that the register should contain information on all documents
falling within the scope of the access regime. The Regulation
should also prescribe what information should be included in the
register (p 105).
160. Mr Harden, for the European Ombudsman, identified
the absence of registers as one of the shortcomings of the current
regime.[50]
It presented a practical obstacle to the effective exercise of
the right of access since, without a register, it may not be possible
to know what documents to ask for. The proposal required each
institution to provide "access to a register of documents".
A large measure of discretion would be left to the institution
to determine what is a register for the purposes of the Regulation.
There was no definition of the term register, nor any indication
of what it should contain. In particular, there was no obligation
for each institution to maintain and publish a central register
that included all incoming and outgoing documents. Mr Harden suggested
that it should be made clear that the register must also include
confidential documents, in a form that did not disclose confidential
information (pp 77, 81, QQ 129, 132). Professor Curtin, referring
to earlier work on this subject by the Meijers Committee in the
Netherlands, emphasised the need for central responsibility within
institutions and detailed binding measures on the organisation
of registers (Q 27).
161. Other witnesses expressed similar concerns over
the content and accessibility of registers. Statewatch drew attention
to the importance of registers containing references to all
documents held by the institutions - the granting of access
was a separate issue governed by the use of the exceptions. This
was a fundamental safeguard against abuse, corruption and undemocratic
practices (p 18). The Newspaper Society took a similar line. Registers
should include classified documents, with an indication that they
were considered as confidential (p 152). Euro Citizen Action Service
(ECAS) contended that all institutions, agencies and committees
should have such a register on their websites. There should be
guidance for applicants through registers with an indication of
the origin of the document, its status (ie whether or not
it is confidential) and what is the next stage in the decision-making
process (p 150). The European Environmental Bureau (EEB) said
that Article 9 should also require that access to the registers
is free (p 59, Q 118).
162. Lord Williamson of Horton thought that in principle
it was a good idea to have a register but, speaking as a former
Secretary General, he foresaw substantial practical difficulties
for the Commission. He doubted, moreover, whether the register
would be used very much or would do an enormous amount of good
in practice. Apart perhaps from some initial interest in testing
the new system, he thought that the volume of requests for documents
would stay at the current level. The potential volume of documents
was huge, on top of which there was the language problem. "In
the last resort I think we could work it. It is going to be a
very heavy system. I think it is what the French call a bad good
idea, that is it is a very good idea but in reality it is going
to give rise to quite a lot of difficulties, operating responsibilities,
operating requirements for staff and so on and so forth"
(QQ 195-6). Ms Preston, for the Commission confirmed this.
There were "hundreds of registers" in the Commission.
Since March the Commission had been preparing a register of the
main categories of internal documents asked for. She envisaged
a decentralised system under the Regulation, spread through the
Commission (QQ 281-6)).
163. Registers are an important, if not essential,
feature of an access to documents regime. They provide a tangible
means of providing information on documents of which applicants
might otherwise not be aware. In our view, any register needs
to be (a) compulsory (b) readily accessible and (c) workable and
user-friendly. There must be clarity, both for applicants and
officials, as to the documents to be included in the registers
and the descriptive information to be applied to documents so
that they are readily identifiable. Therefore some detail of regulation
or independent supervision is required. These are matters on which
we expect the Commission to consult interested parties.
164. In principle all "documents" should
be listed on the register. Because of the application of legitimate
public interest exceptions under Article 4, not all documents
would be accessible. But we acknowledge that if, as we have recommended
above, the present limitations in the definition in Article 3
are removed then potentially a vast number of documents would
have to be included on the register. While there may be little
difficulty in listing incoming and outgoing documents (including
e-mail) we accept that there may be problems in determining exactly
when an "internal" document comes into existence (the
civil servant's preliminary scribbling or the first "official"
version). We envisage, therefore, that, if only for such practical
considerations, a separate definition of documents may have to
be included in Article 9. In preparing this Commission should
build upon the experience of those Member States, such as Sweden,
which have operated public registers of documents for many years.
OTHER MEASURES
165. The institutions are required to inform the
public of the "rights they enjoy" under the Regulation.
Amos and Baxter commented that it would be interesting to see
how positively they do this (p 139). In the view of the Swedish
Government, any access regime needed to be supported by a number
of measures in order to become effective. Public registers of
documents formed one of the most important parts of such a "support
system" and ought to be regulated in the context of Article
255 of the EC Treaty. Other relevant and important issues, which
needed to be discussed but not necessarily included in the Regulation,
included a duty to record information and the maintenance of a
document retention/archives regime (p 105).
166. Statewatch praised the Council for establishing
a central unit to handle applications for documents. The position
as regards the Commission was less satisfactory. The applicant
had to go to the particular Directorate General. There was no
central point to receive applications or to chase up delays. A
small unit of 8-10 persons would, in Mr Bunyan's view, suffice
and would be " a small cost for an informed democracy"
(Q 64).
167. Euro Citizen Action Service (ECAS) said that
there should be more publicity for access to documents schemes
(p 150). Lord Williamson of Horton said that there was a Citizen's
Guide, which explained the position under the Code of Conduct
and told the citizen where to write to and so on. But it needed
bringing right up to date and to be available in all the offices
of the Union (Q 195).
168. The new regime will need to be publicised.
A new edition of the Citizen's Guide should be prepared and widely
distributed.
ARTICLE 10
| Article 10
Effect
Each institution shall adopt in its rules of procedure the
provisions required to give effect to this Regulation. Those
provisions shall take effect on ... [three months after the adoption
of this Regulation].
|
RULES OF PROCEDURE
169. Article 255(3) EC requires each institution
to elaborate in its own Rules of Procedure specific provisions
regarding access to documents. The Bar European Group (BEG) referred
to recital 13 of the proposal which provides that the proposed
Regulation cannot be applicable without specific provisions being
laid down by the institutions and queried its compatibility with
Article 255(3) EC. In BEG's view, Article 255(3) did not restrict
the right of access provided for in Article 255(1) by stating
that implementing internal provisions must be taken first. The
proposed Regulation provided all the details required for the
Treaty right to be fully and properly described. Given that, the
so-called internal implementing measures might well simply reiterate
what was in the proposed Regulation. Not only did this appear
wasteful but it also gave control to the Community institutions
as to when the Treaty rights would become applicable (p 49).
170. But the practical details of the new regime
will have to be worked out in Rules of Procedure. The Commission
also suggested that the implementing rules might be used to clarify
a number of matters left uncertain in the text of the Regulation,
such as the "specific rules" mentioned in Article 2
(2), definition of internal documents (Article 3), application
of the exceptions in Article 4 (QQ 251, 253-4, 270). Amos and
Baxter proposed that Model Rules of Procedure for institutions
and associated guidance for officials be produced with the Regulation.
Further, "to ease suspicion" the arrangements for incorporating
the new regime into the Rules of Procedure of each of the institutions
should be open to public consultation and scrutiny (pp 134, 139).
Ms Preston, for the Commission, reacted: "In principle, why
not? However, we have to produce the rules of procedure within
three months of adoption of the Regulation. So the deadline would
be very tight for a consultation procedure" (Q 251).
171. The Commission's evidence reveals the potential
importance of the detailed implementation of the Regulation in
the respective Rules of Procedure of the three institutions. We
doubt, however whether the Rules are the proper place to resolve
any remaining uncertainties in the text relating to such matters
as the scope of any exclusion for "specific rules" or
the scope and application of the exceptions in Article 4. In any
event, the preparation of amendments to the Rules should itself
be an open exercise and interested parties (and especially the
Ombudsman) might be given the opportunity to comment. The timetable
may be tight. But some thought must already have been given to
the changes necessary. There may also be some matters, such as
fees structure and the detailed form and contents of registers,
on whose development the conclusion of the negotiations and final
adoption of the Regulation is not dependent. The errors of judgement
made in deciding not to conduct a proper public consultation prior
to the publication of the draft Regulation should not be repeated.
21 Professor Curtin accepted, however, that the European
Convention on Human Rights (in particular Article 10) itself probably
did not give a positive right of access (Q 3). Ms Durand, Commission
Legal Service, expressed similar doubts (Q 240). Back
22
Public Hearing on the draft Charter of Fundamental Right of the
European Union, 2 February 2000. The Ombudsman called for the
Charter to include the right to an open, accountable and service-minded
administration. Back
23
Speech to European Parliament. See fn 22 above. Back
24
Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters. Aarhus (Denmark),
25 June 1998. The Convention makes provision, first, for the public
to have access to environmental information. It requires Parties
to ensure that public authorities make environmental information
available on request to members of the public (subject to some
exceptions) and sets out basic requirements relating to the collection
and dissemination of such information. Second, it provides for
the public to participate in decisions on whether to permit particular
activities. Third, it provides for rights of access to justice
in environmental matters. It requires Parties to allow members
of the public who consider that they should have had access to
information or the opportunity to participate in decision-making,
to seek remedies before courts or other judicial bodies. Parties
must also ensure that members of the public have, within certain
parameters, access to administrative or judicial procedures to
challenge breaches of national environmental law. The Convention
is a UN/ECE Convention that has been signed by the Community and
all the EU Member States, as well as by other states. Back
25
Mr Bunyan described the complaints that Statewatch had and was
bringing before the Ombudsman. Statewatch had preferred to have
recourse to the Ombudsman rather than to Community Courts because
of the time allowed to make an application (two years as opposed
to two months) and the absence of risk as to costs (QQ 40-1, 54). Back
26
24 February 2000. Back
27
Wall Street Journal, 9 March 2000. Back
28
Discussion paper on public access to Commission documents
produced by the Secretariat-General of the European Commission,
23 April 1999, SH.C 2/VJ/CD D (99) 83. The document was published
on the Statewatch website at http://www.statewatch.org/news1.htm Back
29
The subject of our Report, Reforming EC Competition Procedures,
4th Report, 1999-2000. Back
30
Case T-106/99 Karl L.Meyer v. Commission. Order
of 27 October 1999, at para 39. Back
31
Case T-92/98 Interporc Im- und Export GmbH v. Commission.
Judgment of CFI of 7 December 1999. Back
32
Report on Openness in the European Union. Doc. A4-0476/98. Back
33
Case T-194/94: Carvel v. EC Council [1995] ECR II-2765,
at paragraphs 64 and 65. Back
34
Article 4(4) of the Aarhus Convention provides: "A request
for environmental information may be refused if the disclosure
would adversely affect:
(a) The confidentiality of the proceedings
of public authorities, where such confidentiality is provided
for under national law;
(b) International relations, national
defence or public security;
(c) The course of justice, the ability
of a person to receive a fair trial or the ability of a public
authority to conduct an enquiry of a criminal or disciplinary
nature;
(d) The confidentiality of commercial
and industrial information, where such confidentiality is protected
by law in order to protect a legitimate economic interest. Within
this framework, information on emissions which is relevant for
the protection of the environment shall be disclosed;
(e) Intellectual property rights;
(f) The confidentiality of personal
data and/or files relating to a natural person where that person
has not consented to the disclosure of the information to the
public, where such confidentiality is provided for in national
law;
(g) The interests of a third party which
has supplied the information requested without that party being
under or capable of being put under a legal obligation to do so
and where that party does not consent to the release of the material;
or
(h) The environment to which the information
relates, such as the breeding sites of rare species.
The aforementioned grounds for refusal
shall be interpreted in a restrictive way, taking into account
the public interest served by disclosure and taking into account
whether the information requested relates to emissions into the
environment." Back
35
Case T- 194/94 Carvel and Guardian Newspapers v. Council
[1995] ECR II-2765, at para 65. Back
36
Case T-14/98 Heidi Hautala v. Council Judgment of
19 July 1999, at para 85 (adopting the test laid down by
Court of Justice in Case 222/84 Johnston v Chief Constable
of the Royal Ulster Constabulary [1986] ECR 1651). Back
37
Wall Street Journal, 7 January 2000. Back
38
Article 10 (2) of the ECHR contains exceptions to the right to
the freedom of communication. It prescribes the aims and pressing
social needs which may legitimately be pursued and met by public
authorities in restricting the right to impart or receive information
and ideas. These legitimate aims and needs are the protection
of the interests of national security, territorial integrity or
public safety, the prevention of disorder or crime, the protection
of health or morals, or the reputation or rights of others, information
received in confidence, and the authority and independence of
the judiciary. Article 8 (2) also recognises as a further legitimate
aim the protection of the economic well-being of the country. Back
39
Case T-610/97 Carlsen and others v Council [1998]
ECR II-485, and Case T-83/96 Van der Val v. Commission
[1998] ECR II-545. Back
40
Declaration 35 provides: "The Conference agrees that the
principles and conditions referred to in Article [255 (1)] of
the Treaty establishing the European Community will allow a Member
States to request the Commission or the Council not to communicate
to third parties a document originating from that State without
its prior agreement". Back
41
They referred to the definition adopted by the USA courts: "commercial
or financial matter is confidential for purposes of the exemption
if disclosure of the information is likely to have either of the
following effects: (1) to impair the Government's ability to obtain
necessary information in the future; or (2) to cause substantial
harm to the competitive position of the person from whom the information
was obtained ". National Parks & Conservation Association
v Morton, 498 F.2nd 770 (DC. Cir 1974). The two tests,
which apply disjunctively, are known as the "impairment prong"
and the "competitive harm prong". To successfully invoke
the impairment prong, authorities usually argue that the information
was provided voluntarily and that third parties would not provide
such information in the future if it were subject to public disclosure.
Most other countries define confidential information in a way
that is consistent with the USA interpretation (para 29). Back
42
Case 145/83 Adams v Commission [1985] ECR 3539. Back
43
In its work on the implementation of environmental law, the Select
Committee has called for more information to be given to complainants
and for documents to be made available. See Community Environmental
Law: Making It Work. 2nd Report 1997-98, at paras 91-97. Back
44
Ie data about data. "Metadata is a description or
profile of a document or other information object. The description
may contain data about the context, form or content of the document.
In an electronic environment metadata is attached to, or form
an integral part of, each record. Such metadata may denote a classificatory
category to which the record belongs, or may identify or describe
the record according to other attributes". Records Management
- a guide to corporate record keeping: Kennedy and Schauder
(2nd ed., at p.297). Back
45
Case 1053/25.11.96/Statewatch/UK/IJH v. Council. Back
46
Article 4(2) of the Convention provides: "The environmental
information referred to in paragraph 1 above shall be made available
as soon as possible and at the latest within one month after the
request has been submitted, unless the volume and the complexity
of the information justify an extension of this period up to two
months after the request. The applicant shall be informed of any
extension and of the reasons justifying it". Back
47
The EEB referred to Article 4(7) of the Convention: "A refusal
of a request shall be in writing if the request was in writing
or the applicant so requests. A refusal shall state the reasons
for the refusal and give information on access to the review procedure
provided for in accordance with Article 9. The refusal shall be
made as soon as possible and at the latest within one month, unless
the complexity of the information justifies an extension of this
period up to two months after the request. The applicant shall
be informed of any extension and of the reasons justifying it". Back
48
Article 4(1): "Each Party shall ensure that, subject to the
following paragraphs of this Article, public authorities, in response
to a request for environmental information, make such information
available to the public, within the framework of national legislation,
including, where requested and subject to subparagraph (b) below,
copies of the actual documentation containing or comprising such
information:
(a) Without an interest having to be
stated;
(b) In the form requested unless:
(i) It is reasonable for the public
authority to make it available in another form, in which case
reasons shall be given for making it available in that form; or
(ii) The information is already publicly
available in another form." Back
49
See Decision of 27 February 1996, OJ C 74/3. The fees for obtain
copies of Commission documents are specified in Commission Decision
of 19 September amending Decision 94/90/EEC. Documents of 30 pages
or less are supplied free of charge. If more than 30 pages there
may be a charge of Euro 10 plus Euro 0.036 per page. Where the
information is stored in a computer, audio-tape etc, the fee is
fixed on an ad hoc basis, subject to the principle that the charge
must be a reasonable one. Back
50
Mr Peers, for Statewatch, reported the Ombudsman's finding (Case
633/97/PD) that there was a basic principle of good administration
that institutions should have a register of documents (Leg An,
Q 42). Back
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