Debate between Tony Bunyan, Statewatch editor, and Mary Preston, of the European Commission, organised by Die Zeit newspaper in April 1999. The moderator was Christiane Schulzki-Haddouti.

Autor Thema: Panel 3: Freedom of Information in a European Context

Redaktion

    

geschrieben am 12.04.2000 um 16:05 Uhr   


Der Amsterdamer Vertrag gewährt den Bürgern mehr Zugangsrechte, umgesetzt wurden diese Ansätze jedoch in einer Reihe eher restriktiver Regelungen.

Es diskutieren (in engl. Sprache):

Tony Bunyan
Statewatch, London

Mary E. Preston
Europäische Kommission
Referatsleiterin Koordination II: Transparenz und Zugang von Dokumenten, Zuschüsse, Beziehungen zu den Interessengruppen"

Moderation:

Christiane Schulzki-Haddouti
Freie Journalistin, Koblenz

Mary Preston

    

geschrieben am 13.04.2000 um 15:15 Uhr   


Opening statement

Freedom of information is a hot topic both in EU Member States and at European level. The EU's complexity makes it difficult for most people to understand how it works and so openness and accessibility to information is particularly important. The new Article 255 to the Treaty of European Union granting citizens of the European Union a right of access to European Parliament, Council and Commission documents is therefore a step in the right direction. So is the new general principle stating that Union decisions should be taken as openly as possible and as closely as possible to the citizen.

Thse innovations show the commitment of EU Member States to the concept of open government. Open government implies not only freedom of information but that information can be easily obtained at a reasonable cost. For there to be effective public debate, citizens must be informed about policy issues and the decisions taken on their behalf by their elected representatives and the administration. They also need to understand how the decision-making procedure works. Who is consulted? Who takes the final decision? Why was a specific decision taken? In a system of open, democratic government, public authorities are accountable to citizens but for that to mean something citizens must have sufficient information to follow what is going on and to participate.

How are the European institutions implementing the principles laid down in the Treaty? How do they channel information to EU citizens? The development of the Internet has had a big effect and since the setting-up of the EU website there has been a real information explosion. The website is used not only to disseminate vast quantities of information on EU policies but also for instance to publish the texts of proposals in the form of Green and White papers or as discussion papers such as the one on the strengthening of relations with non-governmental organisations. This latter page also provides an opportunity for feedback from the public on the proposal.

But what if the information the EU institutions make available is insufficient? What if citizens want different information? For several years now there has been a system whereby requests can be made to EU institutions for access to their unpublished documents. The European Commission has also prepared a proposal for a new Regulation implementing Article 255. The proposal still has some way to go before it is finalised since it has to be discussed both by the Council and the European Parliament. A description of the current system as well as the text of the proposal is on our server. On the same webpage you will find a description of Member States' laws on freedom of information as well as statistics showing the number of requests for documents to the Commission and the categories of people who have requested them.

Freedom of information is a very important subject and I think Die Zeit's initiative in setting up this online discussion is an excellent one. I am looking forward to reading the questions and comments of participants.
[Beitrag wurde von Mary Preston am 14.04.2000 um 12:23 Uhr bearbeitet.]

Tony Bunyan

    

geschrieben am 13.04.2000 um 15:27 Uhr   


Opening statement

Introduction

The first steps towards establishing the citizens right of access to EU documents came in 1993 when the European Commission and the Council of the European Union adopted "Decision(s)" setting out the procedure for applicants. In very simple terms citizens could apply for any document subject to specific, narrowly- defined, exceptions.

At first there was a great reluctance by the institutions to release documents and without external challenges from journalists and voluntary groups, backed by liberal judges and a diligent Ombudsman, the 1993 Decision on public access to Council documents would have been ineffectual and little used. These challenges, in turn, created the space for the EU member states siding with openness to back change.

The Amsterdam Treaty, agreed by the EU governments in June 1997, was intended to "enshrine" the right of access to documents for citizens (Article 255). To effect this decision the European Commission has put forward a draft regulation on access to documents which has to be agreed by the European Commission, the Council and the European Parliament.

So the first test of the Commission's proposal is: Does it enshrine the citizens right of access? Is it a distinct improvement on the practice since 1993 or is it a step backwards? No doubt this will be debated hotly over the next two weeks - but I should say now that in my view the Commission's proposal, as currently set out, would be a major step backwards. All the relevant documents and background are on our website: http://www.statewatch.org/secreteurope.html>

Information v access to documents

Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among citizens and closed minds among policy makers.

The provision of "information" by EU institutions, especially on the internet, is accessed by millions. These important sources are a combination of factual material (for example, the text of a Regulation or decision) and the presentation of the Commission's (or the Council's) point of view. Why it might be argued is access to EU documents by citizens so crucial?

Only if the right of access to documents is finally established is there any guarantee that the "information" made available will not be partial, limited, or tailored to the institutions' perspective. Much information is not on the internet but it is available through documents which tell the story of policy development and its implementation. Moreover, access to documents allows civil society to form its own, independent, perspective.

Note: this is a personal point of view. Statewatch does not have a corporate view and does not seek to create one.
[Beitrag wurde von Tony Bunyan am 14.04.2000 um 14:00 Uhr bearbeitet.]

C SchulzkiHaddouti

    

geschrieben am 13.04.2000 um 15:37 Uhr   


Thank you for your opening statements. They bring us right into the current discussion on the proposal of the European Commission for a new regulation on freedom of information:

First of all there seems to be a consensus that citizens should have access to EU-documents. But, Mary, it has been stated, that the proposal does not guarantee full access to EU-documents. For example there are several exceptions to the right of access: According to the proposal, institutions shall refuse access where diclosure could significantly undermine the protection of the public interest, privacy, commercial or industrial secrecy. Why do you think these restrictions are necessary?

Tony, you have repeatedly claimed that this proposal would be "a major step backwards". Why do you think so?

[Beitrag wurde von C SchulzkiHaddouti am 13.04.2000 um 16:32 Uhr bearbeitet.]

Tony Bunyan

    

geschrieben am 14.04.2000 um 13:58 Uhr   


The current Commission proposal would be a major step backwards (and fatally undermine the principle of the right of access) for several reasons, the most significant of which are:

1. Under the present “Decision(s)” of 1993 an applicant can apply for any document. The proposal would permanently exclude many documents which the citizen would not even be able to apply for (and which presumably would not be on the public register of documents).

2. The critical factor is that citizens should be able to apply for any documents subject only to specific and narrowly defined exceptions. This is the present system and one that works reasonably well as a result of challenges taken to the Court of First Instance and the European Ombudsman.

3. Not only does the Commission’s proposal seek to permanently exclude many documents from the right of access but it greatly extends the exceptions under which documents can be refused.

It is the combination of undermining the right of citizens to apply for any document and the extension of exceptions which alone is a major step backwrds.

There are several other aspects to the proposal which are also retrogressive: seeking to replace “Decision(s)” by a binding “Regulation” to limit national laws on freedom of information to the Brussels officials interpretation; saying the the Regulation will not apply to documents “already published or accessible to the public by other means” - presumably on the internet or in the Official Journal; seeking to replace institutions’ discretion on “repeat applications” to “repetitive applications” - would would overule a decision by the European Ombudsman in a Statewatch complaint.

Mary Preston

    

geschrieben am 14.04.2000 um 14:01 Uhr   


Yes Christiane there do have to be some exceptions to the general rule of access to documents. You find similar exceptions in all legislation on freedom of access. This is because the law has to protect certain legitimate interests.

Lets take a couple of examples. Privacy for instance. I think most people would feel that their medical files should be kept confidential. Or another example, commercial secrecy. Can we really expect firms to make their business secrets available to their competitors in the name of freedom of information? I don't really think so.

C SchulzkiHaddouti

    

geschrieben am 14.04.2000 um 16:08 Uhr   


I'd like to hear your bottom line on the proposal.

Mary, Tony says that the proposal is worse than the old regulation. Is this so?

How progressive is the European proposal compared to similar laws in Sweden? Would Swedish citizen have still the same rights under European jurisdiction?

And Tony, do you think that European citizens will have the same rights as U.S. citizens?

Mary Preston

    

geschrieben am 14.04.2000 um 18:25 Uhr   


I am delighted to hear Tony's enthusiasm for the current system. Having spent years testing it and criticising it - now he likes it! What is they say about never appreciating something until you are about to lose it?

So he thinks the current proposal is worse than the old Code of Conduct. (By the way it isn't a Regulation it's a voluntary Code.) Well of course I don't agree with him. In fact, the proposal contains two major improvements over the current system and the rest is much the same.

Firstly, the proposal includes all documents "held by" the European Parliament, the Council and the Commission. This means all documents drawn up by them or received from third parties and in their possession. Under the current system you can only ask for documents drawn up by the institutions. If you want a document from another source you have to apply to to that source which can be a bore. This new measure also brings the EU rules into line with legislation in the majority of the Member States.

Secondly, the proposal specifies that each institution shall provide access to a register of documents. A register of course makes it much easier to know what is available. At present the Council has a register of its documents on the Internet. Since 31 March the Commission has a register of the incoming and outgoing mail of the President Mr Prodi on its website http://europe.eu.int/comm/commissioners/prodi/mail_en.htm and we are preparing a register of Secretariat-General documents which we hope will be available for September.

The third improvement has rather misfired. The current system was criticised in the past for having exceptions which were much too broad. That was perhaps a bit inevitable since when the Code was drawn up no-one had a very clear idea about what documents would be asked for and which would cause problems. After over six years we have a much better idea and so we thought it would make the proposal clearer if we listed some examples of the areas which come under the four exceptions. Obviously we didn't do a very good job of explaining what we were trying to do as the text has been criticised for introducing a lot of new exemptions. This is not the case. The indents in Article 4 are merely examples based on our current practice.

The same applies to the documents referred to in Article 3. These are documents which are not usually released at present.

So in my personal opinion, the current proposal would not change the way in which the access to documents system is applied except by improving it in the ways I described above.

And that brings me to the next point. What counts in any access to documents system is the way it is applied. When we were preparing the proposal we sent a questionnaire to Member States asking them to clarify how they apply certain rules. They couldn't give us an answer in most cases because responsibilitiy is decentralised. So in Sweden they could tell us how they apply the rules in the Ministry of Justice but not how it is applied in every single public authority and that is what counts.

The Commmission has applied the rules very liberally in the last few years. Since 1996 80%-90% of documents requested have been released.There is no reason why that should change under the new proposal.

If we haven't bored everyone to death yet - I can try and answer your question about whether the EU proposal is progressive compared to Sweden. Well I think it would be a bit optimistic to think that the EU could catch up with Sweden quite so quickly. After all introducing rules on access to documents represents a considerable cultural change for any administration. And we all now how much civil servants adore change! The first Swedish Freedom of the Press Act was passed in 1766. Our Code of Conduct on access was adopted in 1994. So give us a chance! I bet the Swedish administration was still getting things ironed out six years after their first Act!

If compare the two systems, in some ways the EU rules are more progressive than the Swedish ones. We release early preparatory documents which the Swedes do not. To be accessible a document drawn up by a Swedish public authority has be an "official document" which is when it obtains its final form. Once it is "official" it is registered in the official register available to the public - but not on Internet. The Swedish Prime Minister's register of mail is open to the public but unlike Mr Prodi's not available on Internet. Hard luck if you live outside Stockholm!

I think that is more than enough for now. I wish everyone a good weekend!
[Beitrag wurde von Mary Preston am 14.04.2000 um 22:00 Uhr bearbeitet.]

Tony Bunyan

    

geschrieben am 17.04.2000 um 12:19 Uhr   


Of course there need to be exceptions to the citizens right of access to EU documents. There are exceptions now under the 1993 decision. The issues are:

a. why does the Commission's proposal greatly extend the exceptions?

b. why does the Commission's proposal break the now well-established principle that ANY document may be applied for subject only to specific and narrowly-defined exceptions by seeking to permanently excluded many documents?
[Beitrag wurde von Tony Bunyan am 17.04.2000 um 12:21 Uhr bearbeitet.]

Mary Preston

    

geschrieben am 18.04.2000 um 10:46 Uhr   


I shall try and resond to Tony's last comments.

I think I already dealt with the remark under a) in my last contribution. The proposal does not extend the exceptions, it attempts to specify more precisely what the exceptions actually cover.

As regards b), it is true that the current Code of Conduct is based on exceptions relating to the subject matter of the document. However, this is not the case in much access to documents legislation. In many such laws, there are exceptions based on categories, so really both are "well-established principles".

Both methods have their advantages and disadvantages. Our current system of examining each document individually and taking a decision to give access or not on the basis of the content, has the disadvantage of being very time-consuming and requiring considerable human resources. It is also difficult to explain. I am often asked "what documents can we have" and I have to say "well it depends". So it may be a thorough system but it's not necessarily always the best. Critics of this system think it gives too much too much power of appreciation to the administration.

Defining documents by category also poses problems. Firstly, it is not always easy to arrive at a good definition. Also there is the time element. It may not be justified to exclude documents for all time but perhaps only for a specific period for instance until a final decision has been taken. However, it is clearer for users and it means that decisions can be taken more quickly.

All these questions are being discussed currently with the Working Group on Information in the Council and discussions with the Parliament will start after Easter. There seems to be a fairly wide consensus about what we want, the problem is putting this down on paper. If anyone thinks drafting legislation is easy, let me assure you it certainly isn't.

Tony Bunyan

    

geschrieben am 19.04.2000 um 22:18 Uhr   



1. My simple point is that as currently drafted the Commission's proposal would be a major step backwards.

2. It seems that applicants who actually use the Code of Conduct and the Council Decision (December 1993) are accused of "testing" the system especially when they are rigorously pursuing their research interests!

3. Certainly over the years I have criticised the codes of access to documents, as have many others. The current system has only improved because citizens have challenged the Council and the Commission in the Court of First Instance and by taking complaints to the Ombudsman. Without these challenges the Amsterdam Treaty would not have covered access to documents.

4. The Commission's proposal does indeed say that it includes all documents held by the institutions (Article 2.1) but then a) it says that most documents will be permanently excluded (Article 3.a) and b) extends the range of exceptions Article 4).

One of the positive aspects of the proposal to include "incoming" documents is thus negated.

5. The issue of making available a register of documents is very important. Since January 1999 the Council has been making available such a register - but it does not contain all the documents. I am glad to hear that the Secretariat-General of the Commission is going to put up a register in September - but, will this contain all the documents? And, what about all the other directorates?

Article 9 of the Commission's proposal says that the three institutions - the Council, Commission and European Parliament - should have registers. But this is negated by Article 3a which permanently excludes most documents.

6. To suggest that the exceptions (the grounds on which grounds can be refused) are "merely examples based on our current practice" is surprising.

Does this mean that the Commission's proposal is not a hard, definite one but rather just indicative of what should be adopted?

If indeed the exceptions currently being used include for example, the new exceptions of "the stability of the Community legal order" and "the deliberations and effective functioning of the institutions" then it throws into question the institutions' current practices which are clearly outside the rules.

7. Mary says that as regards Article 3a: "These are documents which are not usually released at present". The whole point of new legislation, based on Article 255 of the Amsterdam Treaty, is that it meant to be a distinct improvement on the present practice "enshrining" the citizens' right of access to documents.

I have put to the Council the proposition that all documents should automatically be released and made available on the internet unless an exception can be applied (and this decision should be subject the appeal). This would represent a real move towards establishing openness.

8. The Commission says that it releases 80-90% of documents applied for. There is a real difficulty here. The Commission does not have a register of documents and applicants are meant to apply to the directorate/department concerned - but they often do not know where to apply. To be effective the Commission needs to have both a register of documents (including all the documents and covering all directorates/departments) and to have a single, central, contact point for applications.

9. I do not feel that the issue of, on the one hand, stating saying that the Commission's proposal covers all documents held (Article 2.1) and then permanently excluding most documents in Article 3.a has been answered.

The Explanatory Memorandum suggests that this is because officials need "the space to think". This position is in direct conflict with the needs/rights of civil society (as well as parliaments, national and European) to have access to all the relevant documents concerning a proposed measure well in advance of its adoption so that they can form an opinion and participate in the democratic decision-making process.

Mary Preston

    

geschrieben am 20.04.2000 um 13:26 Uhr   


I don't think there is much point in going over the same ground again and again so I shall merely comment on new points.

1) I disagree

2) OK so no-one and certainly not Tony has been testing the system, merely rigourously pursuing research interests. I'm glad to hear it.

3) I would agree that the rulings of the Court of First Instance have provided valuable interpretations of the current code. See also point 6 below.

4. Article 3b defines the institutions covered by the proposal so I presume we are talking only about 3a. Article 3a excludes discussion documents, opinions of departments and informal messages. These are most certainly not "most documents".

5. No, the Secretariat-General's register will contain documents registered by the Commission's Registry. Other registers of other departments will be set up over time.

6. In the Carlsen case the Court of First Instance stated that the list of interests covered in the current Code of Conduct under the "public interest" exception was not exhaustive. It suggested invoking the exception "stability of the Community legal order".

7. Article 255 of the Amsterdam Treaty was intended to provide an improvement and, in my opinion, does so. However, there has to be a balance between different interests. I do not think that a businessman who saw his commercial secrets published on the Internet in the name of greater access to documents would see Article 255 as an improvement.

The idea of automatically publishing all documents on the Internet unless they are covered by an exception sounds great. Of course it would cost quite a bit in human and financial resources and I'm not sure the European taxpayer would see it as a priority but it's a nice idea.

8. I can't go along with the argument that applicants do not know who to apply to. The Guide for Citizens on access to documents is available on the Internet and contains the relevant addresses. Questions sent to EU offices in Member States get to us. There is no requirement to send an application to a specific department.

9. As I said before Article 3a excludes discussion documents, opinions of departments and informal messages. These are most certainly not "most documents".

Civil servants do need "space to think". Not all first drafts are masterpieces. They usually need discussion and knocking into shape before they are fit to be presented to the public. And they need to be translated. Not all civil society speaks English or French! Nicht wahr?

In practice, the Commission consults civil society more and more. At what stage consultation on a proposal starts varies from one sector of EU activity to another. However, increasingly there are regular contacts between Commission departments and civil society organisations such as NGOs. This means that what will be put into a draft is often discussed beforehand. So the NGO networks and associations who represent national NGOs may well be directly involved in the drafting process and can keep their members informed.

Tony Bunyan

    

geschrieben am 21.04.2000 um 20:30 Uhr   



Some fundamental issues have to be addressed:

1. Article 255 of the Amsterdam Treaty was not just intended to be an "improvement" on the existing practice, it was intended to establish the citizen's right of access to EU documents once and for all. It is not for the institutions (Commission and Council) water down this commitment.

2. Nor is it just for the officials in the Brussels-based institutions to sort out the many shortcomings in the Commission's proposals: "There seems to be a fairly wide consensus about what we want". Article 255 was not intended to provide the institutions with the opportunity to come up with a measure that suits them - rather it is meant to meet the rights and needs of citizens.

And where does civil society come into this "consensus"?

3. Mary says that Article 3a only excludes discussion documents, opinions of departments and informal messages. In fact Article 3a simply uses these categories as examples of documents which can be excluded under the headings of so-called "internal use".

And let us take the category "informal messages". In the Explanatory Memorandum is says: "informal messages such as e-mail messages which can be considered the equivalent of telephone conversations". Anybody who uses e-mail knows it is not the same as a telephone chat (although it may be used to "chat"). I understand that much serious business is done within and between the institutions by e-mail and therefore cannot accept that these should, as a category, be permanently excluded from access - they certainly fall under the present code/decision definition of a "document".

I simply do not believe that the definition in Article 3a will not exclude "most documents" (as defined at present).

4. It is completely unclear what the effect of Article 3a would be. An unpublished Commission discussion paper (23.4.99) said:

"... the scope of future legislation would not extend to working documents produced in the form of a contribution to internal proceedings.. This would make it possible to protect proceedings while ensuring access to the final outcome.

... an embargo could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.."

As drafted Article 3a could be used not only to exclude most documents from public access but also to only give access to civil society after a measure has been adopted.

No doubt the Commission, as now, in exercising its discretion would publish many proposals once they have been adopted by the full Commission and a number of Green papers. But too many of the provisions in the proposal leave the institutions the "discretion" to refuse access to documents, instead of establishing the right of access subject only to narrowly drawn exceptions.

The European Ombudsman, Mr Jacob Soderman, said in his letter to the President of the European Parliament (14.3.00):

".. the exceptions to access are drafted in unnecessarily general terms. This means that application of the of the Regulation would involve the exercise of a large amount of discretion by the institutions. In practice, therefore, citizens would not so enjoy rights as be dependent on the goodwill of officials exercising discretion on behalf of the institution."

5. A classic case of the institutions trying to use Article 255 of the Amsterdam Treaty to sort out its "problems" is its attempt to try and replace "repeat" with "repetitive" in Article 5. The present code/decision says that the institutions have discretion when applicants make "repeat applications" to seek a "fair solution" (which nearly always means refusing access without consultation). The Council tried to interpret "repeat applications" to cover Statewatch's regular requests for documents on justice and home affairs issues. We took the issue to the European Ombudsman who rejected the Council's interpretation.

Now the Commission's proposal seeks to replace "repeat" with "repetitive" which could be used against any diligent researcher, at the institution's discretion of course.

6. The idea that a "consensus" is emerging on the changes needed to the Commission's proposal is just too cosy. When the European Ombudsman criticised the Commission's proposal in the press Mr Prodi's response (in a letter to the President of the European Parliament) was to attack Mr Soderman for airing his views in public. Mr Prodi said that he "welcomed" Mr Soderman's views but only "in the context of loyal cooperation between institutions" - which smacks of deals in the backroom, hidden from public view.

Let us hope that the European Parliament will act of behalf of those it represents, the citizens of the EU, when it considers the proposal on the table.

Mary Preston

    

geschrieben am 24.04.2000 um 10:06 Uhr   


1. I think we are in agreement that Article 255 was intended to establish the citizen's right of access to EU documents once and for all. However, it might have been clearer on the point of incoming documents which are not specifically mentioned.

2. Paragraph 2 of Article 255 states "General principles and limits (NB note the word "limits") on grounds of public or private interest governing the right of access to documents shall be determined by the Council .....". That is what is happening at the moment.

I don't see civil society mentioned in Article 255 either.

3. We obviously don't agree on what consitutes an internal document but once again there is no way that they constitute "most documents".

E-mails are a problem. Not the ones that are the equivalent of a document to which Tony refers. These are dealt with in the same way that other documents are dealt with. The problem is the e-mails that are the equivalent of a telephone call. The "Fancy a drink after work?" variety. Who you may ask would want access to these? Well, one of those people "rigorously pursuing their research interests" asked for the e-mails of a specific person over a two-week period. In fact since Commission staff are under pressure to keep as small a number of messages in their mailboxes as possible, the messages for the period in question had already been deleted. When we checked with the computer people it emerged that it might have been possible to recover some of these messages but it would have taken a computer person four days work.

So what do we do about these messages? If someone else applies for e-mails do we just say "hard luck they have been deleted. Do you want to pay a computer expert for four days to have a go at retrieving some of them?" or do we exclude them from the system and make it clear to everyone that these kinds of informal messages are not covered?

Since this is a new problem no existing legislation has dealt with it yet but we thought the question should be discussed.

4. The discussion has moved on in the last year.

It would make life easier if we could arrive at more narrowly drawn exceptions but this is difficult. Firstly, because the future Regulation has to apply to three institutions which have quite different types of documents and secondly, unlike in a national state, the tasks of the institutions are constantly changing. If we look at two areas where responsibility is passing increasingly to the EU, home and justice affairs and defense, these are areas where the confidentiality of documents is safeguarded in all national legislation. At present we do not know exactly what specific exceptions may be necessary.

However, as always it is a question of balance. The Swedish Secrecy Act lays down the specific exceptions to the Swedish Freedom of Press Law. I don't know how many pages it has but it's a pretty massive law. In recent years it has had to be amended every few months and now a new draft is being prepared. So making exceptions too specific is not necessarily very efficient.

In any case we tried to make the exceptions more specific in Article 4 and neither Tony nor Mr Södermann likes that.

5. I'm not getting involved with Tony's disagreement with the Council on repeat/repetitive requests. However, just to stir things a bit, I should add that one representative of civil society (an academic) has suggested that "vexatious requests" should also be refused.

6. A consensus is needed to get the Regulation passed by co-decision procedure. That is what the co-decision procedure is all about.

C SchulzkiHaddouti

    

geschrieben am 25.04.2000 um 13:52 Uhr   


Last week we were able to take a good look at the problems involved with the proposal for Freedom of Information in Europe. As the debate has clearly demonstrated, perfect solutions have not yet been found for every problem. My guess is that there will be many more discussions like the one about email before a truly satisfactory solution can be found.

As our time is running short, I would like to know who makes use of access to documents in the European Union. Mary, do you have any facts about this?

I would also like to know from both of you how you think that access to documents can be
optimized. Just imagine what existing technologies like knowledge management systems or search machines make possible.
When will it be possible for me to access (most of) the documents via internet - using just a special login? As I understand it, up to now the application process still involves some paperwork.

Tony Bunyan

    

geschrieben am 25.04.2000 um 14:23 Uhr   



1. So civil society has no role in the decision-making process over the new measure on public access to documents. All the talk of "bringing the citizen closer to the Union" is simply "spin", the passive citizen waits cap-in-hand for the Brussels "consensus" between the three institutions to emerge to find out what their rights are!

2. The mention of "limits" in Article 255 of the Amsterdam Treaty is simply a reference to "exceptions" (specific and narrowlydefined grounds on which access to documents can be refused). It is not a reference to a general invitation to completely undermine the existing practices by - as Mr Soderman says -giving the institutions so much discretion that the citizen is "dependent on the goodwill of officials".

For example, on 20 April Mary sought to justify the inclusion of a new exception, "stability of the Community legal order", on the Court of Justice judgement in the Carlsen case. The Court's finding however referred to establishing a legal basis for refusing access only to the opinion of the legal services of the institutions - not a very broad general exception which can be invoked.

3. It is right, we are not going to agree that the new measure will exclude most documents permanently from public access. Only time will tell who is right.

4. As to e-mails, we now have a new definition. The reference to "informal messages such as e-mails" in the Explanatory Memorandum and the subsequent reference in Article 3.a excluding "informal messages" from access does not include "ones that are the equivalent of a document". This is a welcome admission.

There are e-mails which are "documents" which can be applied for and e-mails which are simply of a personal nature ("chat") which cannot.

But why, when Steve Peers of Essex University applied for copies of Mr Santer's e-mails, did the Commission find that they had ALL been deleted? Presumably his e-mails of both a personal nature ("chat") and those concerning policy and practice ("documents") had been deleted.

I think the Commission will find that it has a legal obligation, under Community law, to keep copies of all "documents", including those in electronic form, and in due course place them in the archives of the Union. The destruction of such documents may well be unlawful.

There is clearly a lesson to be learnt here. I am not interested in Mr Prodi's messages of a "Fancy a drink after work" variety. Obviously officials of the institutions will exchange e-mails of a personal nature in worktime but these should not be on the same server as e-mails which are "documents" which should properly be in the public domain. I do not think EU citizens are going to be very impressed to learn that official resources are being used for "chat" which so clog up the system that no e-mails are preserved.

5. My question (21.4.00) about the effect of Article 3a (which defines a "document") remains unanswered.

When are documents to be released? Is release to be delayed to "prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interests of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision..."?

The discussion has not "moved on in the last year". The Commission's Explanatory Memorandum to the measure quotes the Committee of Independent Experts as follows: "the Commission needs "the space to think" to formulate policy before it enters the public domain, on the grounds that policy made in the glare of publicity and therefore "on the hoof" is often poor policy." This is just another way of saying what the Commission's unpublished discussion paper said in 1999.

When this is combined with Mr Soderman's criticism that the proposal places unacceptable discretion in the hands of officials it would exclude civil society from taking part in the policymaking process.

6. I do not understand the problem created by, for example for parts of justice and home affairs, coming to the Commission. Since 1993 these issues have been dealt with on an intergovernmental basis by the Council. Access to documents on justice and home affairs has been granted under the 1993 Decision, subject to the exceptions in Article 4. What's the problem for the Commission that is not a problem for the Council?

7. Excuse me, I have no disagreement with the Council on this issue: "I'm not getting involved with Tony's disagreement with the Council on repeat/repetitive requests". The Council accepted the ruling of the European Ombudsman nearly two years ago and this is no longer a problem for applicants from across the EU.

The problem is with the Commission's proposal. This seeks to replace the existing term "repeat" with "repetitive" which has an entirely different meaning.

8. There are some issues we have no touched on. The form in which the measure is presented, as a "Regulation", will have the effect restricting and limiting national laws on freedom of information when it comes to EU documents. The Scandinavian governments have come out very strongly against this idea and now they are being backed by the UK government. Perhaps this will the first of many changes to the proposal?

9. What is the purpose of the provision in Article 2.2: "This Regulation shall not apply where specific rules on access to documents exists"?

10. What will be the effect of: "This Regulation shall not apply to documents already published or accessible to the public by other means" (Article 2.2)? Does it mean that a document placed on the internet or published in the Official Journal will not be supplied to applicants?

Mary Preston

    

geschrieben am 25.04.2000 um 16:27 Uhr   


1. Article 255 does not give civil society a role in the decision-making procedure. This doesn't mean that the instituions cannot consult civil society. In April 1999 a hearing was held in the Parliament attended by 200 people including the Ombudsman, myself and Tony and the discussion paper to which Tony also refers was handed out and discussed. We had intended to hold a proper consultation procedure via Internet but that was not possible once the Santer Commission had resigned.

I imagine the Parliament will hold another hearing at some stage.

2. The suggestion that underlies most of Tony's comments is that the Commission's whole aim throughout this exercise is to limit access to documents as much as possible. Where does this idea come from? The Commission's record on access to documents over the past six years does not bear it out.

Under the new Regulation the institutions will have a margin of discretion on access to documents as they have now. Their decisions will continue to be subject to review by the Ombudsman and the Court of First Instance.

The exception "stability of the Community legal order" has indeed been included to provide a legal basis for refusing access to opinions of the legal services. Who suggested it was going to be used as a "broad general exception"?

3. Time will indeed tell.

4. I would have thought that is obvious that there is a difference between an informal e-mail and a document. Since the proposal is to limit access to "administrative documents"
personal chat will in any case be excluded. Steve Peers asked for e-mails sent out over a certain period and was told that they had been wiped out. If he had asked for specific documents which had been stored elsewhere, his request would have been dealt with in the usual way.

5. Since I don't have a crystal ball, I don't really know what the effect of Article 3a will be. I imagine to exclude documents currently excluded by the "confidentiality of the deliberations" exception.

6. Who says it won't be a problem for the Council as well? The whole defence area is something quite new.

7. How about "vexatious repeat requests" then?

8. We shall have to wait and see what the outcome to this one is.

9. The purpose of Article 2.2 is to discourage attempts to circumvent legal procedures with specific rules on who has access to what (competitition rules, rules on State aids etc) by invoking the access to documents rules. We intend to list these specific rules in the Commission's Rules of Procedure. The fact they are mentioned in the proposal does not change the legal situation but we think it would make the situation clearer for users of the system.

10. The Publications Office charges for access to printed documents so they are not too keen on the Commission handing out photocopies of printed documents free of charge.

Now to get to the questions Christiane asked me to answer about who uses the access to documents system. Well the statistics for the years up to 1998 can be seen on the Access to Commission internal documents website http://europa.eu.int/comm/secretariat_general/sgc/acc_doc/en/index.htm. As regards 1999 our main customers were academics, public authorities, lobby organisations and lawyers. This has been the case since the start of the system except that the number of requests from lawyers has risen sharply. I should perhaps add that the statistics only provide an indication. We are not allowed to inquire who people are so the information is based mainly on the letterheads of correspondance or the address (University of...).

The largest number of requests come from Belgium. The departments receiving the largest number of requests are Customs and Indirect Taxation, the Internal Market, External Affairs, Environment and Employment and Social Affairs.

Christiane also asked how access to documents could be optimized. Obviously a better registration and archiving system would make a difference. However, the Commission is always up against financial constraints so it depends on the priority given to improving access to documents over other priorities how quickly access to documents can become fully electronic.

It is already easy to have access to published documents and legislation via EUROPA. The various internal documents published on the Internet are admittedly not always easy to track down but this is gradually improving. The thematic index on EUROPA is being expanded and I understand the search system is being improved.

[Beitrag wurde von Mary Preston am 25.04.2000 um 23:24 Uhr bearbeitet.]

C SchulzkiHaddouti

    

geschrieben am 25.04.2000 um 23:51 Uhr   


Ab sofort ist die Experten-Diskussion offen für alle. Jeder kann die Debatte weiterführen: Antworten einfordern, Statements abgeben. Bis Mittwoch 18.00 Uhr. Dann werden sich unsere E-Demokrate-Experten aus dem ZEIT-Forum verabschieden.

From now until Wednesday 6 p.m. the debate of our experts is open for everyone: Please ask questions, give statements.

[Beitrag wurde von C SchulzkiHaddouti am 25.04.2000 um 23:52 Uhr bearbeitet.]

Steve Peers

    

geschrieben am 26.04.2000 um 19:24 Uhr   


I have read the discussion between Tony Bunyan and Mary Preston with great interest. Could I add the following points:

Ms. Preston is correct to state that the current EU rules are non-binding 'voluntary codes', but this is misleading. As Mr. Bunyan stated, the Code has been implemented by a Decision. It is clear from the case law of the Court of First Instance that the Decisions are binding on the EC institutions.

It also appears that Ms. Preston has not fully addressed Mr. Bunyan's point about Article 3(a) of the proposed new rules. This clause could be interpreted very broadly to exempt huge numbers of documents from the scope of the new rules. This would mean that they would not be listed in the new registers of documents to be established. There would be no way of knowing that such documents existed. Since the current system applies to such documents, Ms. Preston must show why it is necessary to change it. She has never explained why.

Although Ms. Preston has claimed that the new exceptions which the proposed regulations contains are simply more specific, I would point out that the exception for the 'stability of the community legal order' could be interpreted more broadly than an exception simply for the institution's legal service's documents. The 'confidentiality' exception has become mandatory, not discretionary. The list of exceptions is non-exhaustive, so
the institutions could make up and argue for yet more exceptions on top of those explicitly listed whenever they wish.

The new proposal is clearly more conservative than the existing rules, and Ms. Preston's refusal to admit this just leads to greater and greater suspicion of the Commission.

Steve Peers
Reader in Law, Human Rights Centre, University of Essex

[Beitrag wurde von Steve Peers am 26.04.2000 um 19:26 Uhr bearbeitet.]

Mary Preston

    

geschrieben am 26.04.2000 um 22:39 Uhr   


A few final remarks. What has perhaps been lost in the discussion is one very important fact. What Tony and I have been discussing is a proposal for a Regulation.It will only be finalised and become law once it has been fully discussed by the Council and the European parliament. So if the Commission's proposal is such a step backwards as Tony claims then the Council and the European Parliament will have ample opportunity to amend it.

Secondly, despite Tony's disbelief the Commission believes in transparency and has demonstrated this over the last six years. It will continue to make progress towards greater openness although this may not be as fast as some people would like. Moreover, the questions raised by participants in the discussion forum regarding resources are valid ones. The European institutions are constantly under pressure to limit expenditure on staff. The idea that vast numbers of new posts could be made available in order to insure that more documents are placed faster on the Internet is optimistic to say the least.

If we look at how far we have come in a short time, it's not so bad. But we have to go on trying to go further! Part of this process is raising awareness of the issue in the public and I think that online discussions of this kind are an effective way of doing so. Perhaps that is one thing that Tony and I could agree on?

Tony Bunyan

    

geschrieben am 27.04.2000 um 13:03 Uhr   



1. The Commission did not consult civil society on its proposed regulation. Article 255 of the Amsterdam Treaty, signed in June 1997, was a major step forward in establishing the citizen's right of access to documents. The fact that the Commission did not publish a consultation/discussion document and allow civil society to debate and discuss the broad issues before coming out with a proposed regulation - two and a half years after Amsterdam - does not bode well for openness.

The conference in April 1999 was not a "hearing" by the European Parliament - it was not the Commission consulting civil society. It was a conference organised by three groups in the European Parliament (Greens, PSE socialists, and the ELDR Liberal group) plus the European Federation of Journalists and Statewatch.

It is pretty clear to those who attended this conference that the draft unpublished Commission discussion paper was totally unacceptable as a basis for enacting Article 255. The incoming Finnish Presidency also made clear that it expected a positive paper to be put out. The excuse that the resignation of the Santer Commission stopped publication of a discussion paper does not really wash - there had been plenty of time to put out a paper and the Commission did not stop work.

2. "Who suggested it [the exception: "stability of the Community legal order"] was going to be used as a "broad general exception"?, Mary asks.

Simply, it is in Article 4a of the proposed Regulation as a general public interest exception.

3. I am glad to see that Mary accepts that the change from "repeat" to "repetitive" applications is a problem created by the Commission proposal.

As to hypothetical "vexatious repeat requests": these just fall under "repeat" applications where an applicant keep asking so the same document time and time again.

4. I must really take up the rationale used to justify Article 2.2. As I suspected its effect is that if a document has been published by the official EU Publications Office (eg: in the Official Journal) applicants will have to pay to buy the relevant issue. We have had several complaints about this practice which undermines the existing code/decision - applicant have a right to apply for "documents" from institutions (for which they may make a small photocopying charge) not be expected to pay £20-£30 for an OJ!

The Publications Office is just going to have to be put in its place - this provision has to go.

Finally, to comment on how could access to EU documents work better? First, we have to have a "Decision" (not a Regulation) that improves on the existing practice. Second, every institution has to have a central point for accepting/responding to requests. Third, every institution has to have a public register of all its documents (not some of them). That would be a start.

Tony Bunyan

    

geschrieben am 27.04.2000 um 20:58 Uhr   



Yes, I agree with Mary this has been a useful exercise.

I would make just two final comments. First, the issue of the cost of providing documents. One solution is to provide copies of all documents on the internet. The other is that yes, freedom of information contributing to a healthy democracy may cost some money and I believe this is worth paying. What are we talking about? A few extra staff as against closed, secret decisionmaking, abuse of power and potential fraud - yes, that is worth paying for. In practice a mix of the two would probably work well: with a public register listing all documents (regardless of classification), most documents going directly on to the internet and a decent-sized unit servicing requests and dealing with appeals.

Second, public access to EU documents is about the quality of democracy. An ill or partially-informed, civil society is excluded from taking in decision-making and this undermines democratic standards and accountability to the people. Civil society requires direct access to primary documents so that it can form its own perspective - and this is also a very necessary check of the abuse of power. For too long voluntary groups and NGOs have had to fight to get hold of documents, wasting days and weeks of valuable energy. The Amsterdam Treaty, if the commitment is honoured, provides the opportunity to move forward so that civil society spends more time reading, digesting and analysing documents than it does in trying to obtain them.

C SchulzkiHaddouti

    

geschrieben am 27.04.2000 um 21:43 Uhr   


Thank you very much for this very interesting debate. In my opinion it was clear from the beginning that we would not achieve a consenus at the end. As you both discussed topics like the list of exceptions to the right of access or the costs of preparing documents for access or "vexatious repeat requests" it became obvious that a future regulation must be very carefully planned. No doubt access to information is vital for a working democracy. In my opinion this open and public discussion was an important step towards a better proposal.

Thank you very much,
Christiane Schulzki-Haddouti