Evidence from Statewatch to the House of Lords Select Committee on the European Communities, sub-committee "E"", on the proposed Regulation on public access to EU documents

Introduction

The issue of openness is not just about access to documents, it is about basic democratic standards which allow citizens and civil society to participate and to call to account the executive and the legislature. Without access to the primary material the release of policy can, unacceptably, be controlled by press officers and "spin doctors".

The Commission is keen to emphasise the provision of "information", particularly on the internet which can be accessed by millions. Whereas only a few hundred people or groups across the EU ever apply for documents from the institutions. The "information" on the internet is both hard, factual information and the presentation of "opinion" - the official Commission or Council view of a proposal. There is, however, an indispensable link between the right of access to documents and the provision of information by the institutions. The right of access to documents ensures that the "information" made available will not be partial, limited, or tailored to the institutions' perspective.

Here we use the term "openness" in reference to access to documents and the term "transparency" to define the decision-making process (see footnote).

Our experience in applying for documents 1994-2000

Statewatch started applying for documents in 1994 but it took over a year to understand the process and to get the documents we applied for. At the time the General Secretariat of the Council operated as if they were doing us a favour, rather than responding to an applicant with the right of access.

The pre-Maastricht assumptions that "documents" belonged to governments/the Council persisted. How could the Council and Commission do their work if everything was handed out? The discussion, it was argued, would simply "move into the corridors" out of public view.

However, the "dinosaurs", as Mr Söderman the European Ombudsman has called them, were under attack on two fronts. First, a number of EU member states were in favour of openness - Sweden, Denmark and Finland, sometimes the Netherlands, and later the UK. Second, and more importantly, the practice of the Council in operating the 1993 Decision was challenged by cases taken to the Court of First Instance (John Carvel of the Guardian, the Swedish Journalists Union and later Heidi Hautala MEP and Aldo Kuijer) and the European Ombudsman (Statewatch and Steve Peers).

The details of the Statewatch complaints to the European Ombudsman are attached in an Appendix.

A number of standard phrases are used by the Council to refuse access. On one occasion Statewatch asked the Council (in a confirmatory application) if it could:

"supply definitions of the following and indicate on what authority these phrases are used:

1. "undermine" (4 documents)

2. "have negative effects" (12 documents)

3. to be "harmful" (1 document)

4. "detrimental" (3 documents)

5. "related subjects" (20 documents)

6. "in the future" (20 documents) can this be defined or is it indefinite?"

No answer was received to this point.

Assessment of the present practice

So what is the current situation?

a) The Council has had a public register of documents on the internet since 1 January 1999 (though despite its name many documents are not included, for example, "SN" and classified documents).

On 1 July 2000 the Council will include on its register that actual text of documents if they are released to an applicant. If no one applies for a document or access is refused it will not appear.

The same decision of the Council, taken under the Finnish Presidency in December 1999, said that the agendas of Council meetings (including working parties) should be on its site. However, there was apparently some difference of policy between the Finnish and Portuguese Presidencies on the interpretation of the decision and only those of the Article 36 Committee, COREPER and the Council of Ministers actually appear.

Most of our request for documents are to the Council. The Council's practice on access to documents have certainly improved over the past seven years and the improvements set out in "What is needed?" below would help greatly.

b) The European Ombudsman ruled in 1998 in a complaint brought by Steve Peers against the Commission that the EC institutions were committing maladministration if they did not maintain a register of documents. The Commission is promising to create a register of documents when the Article 255 measure is in place (by May 2001). It is quite unclear what documents this will include, it will certainly not include all the documents.

The Commission's practice on access to documents has only marginally improved. Citizens are meant to apply to the Directorate-General or Department concerned of which there are dozens (although they can apply to a central address). Our experience in applying to the Commission has not been good. Request are often not answered within the one month limit and on most occasions we have had to put in a confirmatory application to get any response. The Commission's responses would be greatly improved by the creation of i) a single, central, address for applications and ii) a single unit properly staffed (the Council has a unit of about 8-9 people) to deal with applications.

We have also had the experience of applying for documents only to be told by the Commission that these can be purchased from the official Publications Office at great cost.

Background to the proposed regulation

The Amsterdam Treaty was agreed in June 1997. The deadline for enacting the commitment under Article 255 was set as 1 May 2001 (two years after the Treaty came into effect). For such an important task it was to be expected that the Commission, which was charged with drawing up the measure, would produce a consultation discussion document so that civil society could make its views known.

The Commission's "draft" discussion paper was "leaked" and a later version present to a conference in the European Parliament where it was heavily criticised. In June 1999 the Commission decided not to produce a discussion paper but to proceed straight to the adoption of a proposed regulation.

This unpublished discussion paper (for the full text see: http://www.statewatch/secreteurope.html) contained the following conclusion:

"... 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.."

(Discussion paper on public access to Commission documents, 23 April 1999 and summarising the discussions held between "officials" from the European Parliament, Council and Commission)

This perspective illustrates the intent behind the proposed measure and its effect would be quite contrary to the standards of a democratic society. The idea that civil society "interfere" with the decision-making process is quite extraordinary.

What is wrong with the proposal?

The detailed analyses is the Appendices to our evidence (Appendix I and II in particular together with suggested amendments in Appendix III) deals point by point with our criticisms.

Here we would make a few points:

1. "Decision" not a "Regulation": the decision to present the measure resulting from Article 255 a "Regulation" was taken by the Commission. It is the norm for "Regulation" to bind Member States and is combined with Preambular point 12 (which speaks of the "loyalty" of Member States not to "undermine application of this Regulation").

Article 255 TEC only gives the Community the power to adopt access rules which bind the EC Council, Commission and European Parliament. It gives the Community no power to adopt access rules which bind Member States, even indirectly.

In our view the decision to put forward a "Regulation" was taken by the "dinosaurs" (officials in the Commission and Council). When the draft "Regulation" was leaked to Statewatch in December 1999 it was put on the internet and a number of governments made strong, sometimes public, representations to the Commission - yet nothing changed.

There is no reason why the Article 255 measure should not be a "Decision", replacing the 1993 Decision/Code, and made applicable to the three institutions named in the Amsterdam Treaty.

2. The definition of a document: the core of the objection to the proposed measure is the definition of a "document" in Article 3.a. At present, under the 1993 Decision/Code, an applicant can apply for, and receive, any document subject only to the exceptions. Article 3.a. seeks to permanently exclude the majority of documents from public access.

This is justified in the Explanatory Memorandum, and elsewhere, that officials need the so-called "space to think".

The effect, bearing in mind the intent set out in the unpublished discussion paper referred to above, could be as follows:

a) most documents will be permanently excluded from public access;

b) the remaining documents will be released to applicants after measures have been adopted. The exceptions being those documents which the institutions are required to publish prior to adoption.

c) Reports not concerned with new measures, those on the implementation of measures, would only be made available at the "discretion" of the institutions.

If this were to be the effect it would not only exclude civil society from any role in policymaking but would fatally undermine democratic standards in the EU.

3. "Repeat" not "repetitive": the clearest evidence of the hands of the "dinosaurs" at work is the attempt to replace "repeat" with "repetitive" in Article 5.1. Statewatch took a case on this issue to the European Ombudsman who decided in Statewatch's favour and in Steve Peers' favour in a subsequent case. The Council had tried to argue that an applicant who regularly applied for documents concerning the same issue - in our case "justice and home affairs" - could be treated as making "repeat" applications (and therefore the Council could exercise discretion is giving access which mean answering some requests and not others at random). The European Ombudsman ruled that the term "repeat applications" could only be applied where an application asked for the same document time and time again.

The proposal to introduce "repetitive" applications would negate the spirit of the Amsterdam Treaty and could be used, as it has in the past, to frustrate diligent and rigorous researchers.

4. Registers containing all documents: It is fundamental, in our view, that public registers of documents should contain all the documents (which, of course, does not mean they would necessarily be released to the public). This ties into the definition of a "document" above - if there is only a partial, selective register it will never be known what is being hidden from public view.

The UK government's explanatory memorandum

The Explanatory Memorandum from the government (Foreign Office) contains a very welcome commitment to transparency and openness in the EU and reflects the role the UK has placed in Brussels on this issue.

Welcome too is the commitment to ensure that the measure to be adopted expressly refers only to EU institutions and not to Member States (this backs the position taken by the Finnish, Sweden and Danish governments).

There is however some confusion between what appear to be two different perspectives (perhaps those of the Foreign Office and the Home Office). For example:

"its provisions should be compatible with UK legislation and reflect the spirit of openness called for in the Amsterdam Treaty."

It is arguable whether the proposed UK Freedom of Information Bill is compatible with the "spirit of openness of the Amsterdam Treaty".

What is needed?

What is required is not just the maintenance of the standards offered under the present Decision/Code but, in the spirit of the Amsterdam Treaty, marked improvements. Marked improvements were brought about in the Treaty itself: i) it is now established that applicants can make complaints to the European Ombudsman concerning justice and home affairs under Title VI of the TEU; ii) proposed measures are published in the Official Journal before adoption (this is only of limited effect as measures are often only published after months of discussion when there is already as de facto agreement and can change significantly between publication and adoption. It only covers documents concerning the Council's "legislative capacity" not the greater number of documents which concern ongoing practice).

a. The improvements in the draft measure should be recognised:

i) The extension to include third-party documents would increase access and overturn the current "authorship rule" (Article 2.1). However, this is potentially limited by Article 4.d.

ii) the provision to the public of a list of committees (Article 3) by the Council and the Commission is an improvement. Though in the case of the Commission a list of all working parties (including ad-hoc ones) would not be covered.

iii) Under Article 4 (Exceptions) the threshold for mandatory refusal is higher ("could significantly undermine").

iv) Under Article 5 and 6 the presumption that a refusal to respond within the time-limit is a positive response is an improvement.

v) Article 7.4. provides for partial access to be given to a document where other parts are covered by an exception (this confirms the current case-law).

b. Starting from the basis of the existing Decision/Code and the practice established (following decisions and judgements by the Court of First Instance and the European Ombudsman) and taking into account the improvements under a. above the following changes would also be required to "enshrine" the right of access:

Here we assume that the existing definition of a "document" is maintained:

i) the one month deadline for replying to applicants should be reduced to two weeks;

ii) extensions in replying to applicants should be limited to two weeks;

iii) the grounds for extensions should strictly cover public holidays (eg: at Easter and Christmas) and should not include "the vacational season" (eg: the whole month of August);

iv) Replies to confirmatory application should be in line with the Kuijer judgement: "The institution must set out in detail in its reply to the confirmatory application the reasons which led it to reject any arguments which the applicant made when lodging that confirmatory application."

v) all institutions should be required to maintain public registers of all their documents and make this available on the internet (including e-mails of an official nature) without exception;

vii) the contents of all documents should be made available on the internet (as they would be if an applicant applied for them) subject only to the strict and narrow use of the exceptions (such a decision to apply an exception should be appealable).

The principle of openness in a democracy

Openness and transparency are concerned with the right of civil society to i) participate in decision-making; ii) to be able to monitor the practices resulting from the adoption of measures or guidelines; iii) and thus to be able to assess the impact of EU activities, in all respects, on their specific interests and on the human rights and civil liberties of all (whether resident in the EU or outside).

Our fear was that the forces of reaction would try and use the Amsterdam commitment to try and put the clock back, unfortunately our fears were justified.

Statewatch

15 May 2000

Footnote: This evidence was prepared by Tony Bunyan, editor of Statewatch and author of "Secrecy and Transparency in the EU" (1999) and Steve Peers, Reader at Essex University. Both have been applying for EU justice and home affairs documents for a number of years and both have successfully taken complaints to the European Ombudsman.

Statewatch has proposed amendments to the draft regulation: amendments

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