EU annual reports on access to documents - still a very long way to go
- less than 50% of Council documents available to citizens
- European Commission's register of documents "a disgrace"
- speech by Tony Bunyan to the European Parliament
The first annual reports of the Council of the European Union (the 15 EU governments) and the European Commission on access to documents (under Regulation 1049/2001) have been produced: 1) Report from Commission (pdf) and 2) Report from the Council (pdf)
On 12 June Tony Bunyan, Statewatch editor, spoke at the public hearing held in the European Parliament on: EU transparency - access to documents: does it work? He spoke in the session on EU institutions in response to contributions from the Council of the European Union, the European Commission, the European Parliament and the European Parliament. He was asked to comment on their contributions and this is the text of the speech:
"It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly "enshrined" the citizens' right of access. Yet even now less than 50% of the contents of documents on the Council's public register have been released and the Commission's public register is absolutely useless. How much longer are we going to have to wait for freedom of information in the EU?"
"By way of introduction it is important to acknowledge the role of civil society in bringing about openness in the European Union. Without the challenges to secrecy by civil society made to the European Ombudsman and to the Court of Justice there would have been no Article 255 in the Amsterdam Treaty (the Article was intended to "enshrine" the citizens' right of access).
It was the coalition of civil society groups - the European Federation of Journalists, the European Environmental Bureau (EEB), the European Citizen Action Service (ECAS), the Standing Committee of experts in Utrecht and Statewatch - who were highly critical of Regulation 1049/2001 adopted by the EU institutions. Indeed when looking back at our list of criticisms many of the problems that citizens now face are the result of the institutions' failure to respond to them.
1. The European Commission's annual report
To start I want to look at the Report from the European Commission (COM (2003) 216, 29.4.03) particularly because by January 2004 the Commission has to publish a report on possible revision and changes to the Regulation.
The main complaint against the Commission is its public register (under Article 11 of 1049/2001). Article 11 of the Regulation says that each institution must provide:
"public access to a register of documents" and that:
"References to documents shall be recorded in the register without delay"
The clear implication of the second provision is that references to all documents should be put onto the register as they are produced.
Article 12 deals with "Direct access" to the documents themselves and says, in Art 12.2, that "in particular" direct access should be given to legislative documents and (Art 12.3) "where possible" to other documents.
The Commission has, as we warned, has interpreted the obligation to provide a public register by solely covering legislative documents (COM and SEC documents). It argues erroneously on page 6 para 5 of its report that the Regulation:
"gives priority to legislative documents"
The Regulation does not say this, it only says this in relation to "direct access" - it does not say this for references to documents on the register.
It is quite extraordinary that the Commission does not feel bound by Article 11 of the Regulation and states blandly that:
"The Commission intends to gradually increase the scope of the register" (page 7, emphasis added)
It is not for the Commission to decided this. The whole point of Article 11 is that as documents are produced references are automatically placed on the register (to which direct access may or may not be given under Article 12).
The Commission's failure to meet its obligation under Article 11 with thousands of documents unrecorded is a disgrace and, in my view, leaves it open to challenge.
As at 31 December 2002 the Commission register only contained references to 24,942 documents. A search of the register between 3 June 2002 - 6 June 2003 revealed the following: for example, for Justice and Home Affairs documents only 212 are listed for the whole year and only 33 of these are directly accessible - this is a farce, hundreds of documents are produced each month by DG JHA in the Commission.
The Secretary-General has only 2,128 documents listed on the register but this does not include the correspondence and decisions on confirmatory applications (appeals by citizens against refusal of access to documents) for which he is responsible - the Council register contains references and usually direct access to all confirmatory applications.
Other problems with the Commission report include:
1. It says that a list of "120 specific provisions contained in current Community legislation" (section 1.5) on access provisions had been reviewed, but this list is not public.
2. There is a reference, in context of inter-institutional committee, of discussions on: "how to deal with extensive or abusive requests" - there is no such thing as "abusive requests" in the Regulation.
4. We are told that 38%, yes 38% of applications for documents are refused for:
"Various exceptions and unspecified exceptions"
The Commission has no power under the Regulation to refuse requests for documents for "unspecified exceptions", the only exceptions allowed are specified in Article 4 of the Regulation.
5. The Commission says it does not hold any "sensitive" (classified) documents. To my personal knowledge this is sheer nonsense.
Overall it is hard to assess the Commission's performance because of its failure to maintain a proper public register of documents and as there is no information available on confirmatory applications.
2. The Council's annual report
The Council has had a public register of documents since 1999 and it has steadily improved. However, direct access to the contents of documents is only given to 45% of them (and this includes those released after appeals).
The point to be made here is that it is often the unreleased, and thus secret, documents which are of the most interest to citizens and the most contentious are far as the Council and EU governments are concerned.
For under half the documents produced by the Council to be released, and these are all unclassified "Limite" documents, show how far we still have to go in establishing freedom of information.
There are specific problems too:
1. There is a real problem with the right of third parties to veto access to documents. This is especially the case where documents concern the USA - with which there is greater and greater cooperation and influence especially in justice and home affairs. Most of the documents are not released - out of 174 documents only 74 released (some only partially) and 31 have no title at all (so the citizen has no idea what subject was being discussed).
2. Article 4.6 on "partial access" is a problem. In most cases of "partial access" this simply involves deleting the names of the Member States's in the footnotes. As at 31.12.02 there were 2,944 partially accessible documents which are not directly accessible on the register - thus anyone wanting a copy has to apply for each one.
3. Contrary to what the Council's annual report says the provisional agendas for preparatory bodies are not routinely put on the register of documents, nor are the "Outcomes".
4. The number of documents on the register at the end of 2002 was 375,154 of which 168,647 are directly accessible (45%). And we are told that over the year there were the following classified documents:
None TRES SECRET
12 SECRET UE
238 CONFIDENTIAL UE
but the number of "Restricted" documents is not given. As civil society groups predicted "Restricted" documents, which are more numerous that "Confidential EU", are neither listed as above under Article 9 as "sensitive" (classified) documents nor are they recorded on the register.
5. It is interesting to note that the grounds for refusing initial applications centred on Article 4.1 public security under which 22.9% were refused and the provision on the protection of the Council's decision-making procedure 27.9% of refusals.
6. Finally, it is disappointing to note that the Member States as whole are taking a less open attitude to confirmatory applications. On only three occasions did three member states ask for their opposition to be noted on justice and home affairs which constitutes a major area for appeals.
3. Issues for civil society
There are in addition a number of issues some of which are not covered by these reports but which are of concern to civil society and are directly relevant to freedom of information.
1. Restricted documents: this category is not covered in the Regulation as we asked for it to be. Neither institution provides the numbers of documents in this category - although the Council notes quite a lot interest by citizens. Restricted documents, which are not covered by Article 9, should expressly be treated the same as LIMITE documents - subject only to the exceptions in Article 4.
2. Partially accessible documents: Partially accessible documents should be publicly accessible on the register when they are given to the applicant.
3. EU Member States having third party vetoes on access: has been applied to us on contentious matters concerning expulsion and repatriation.
4. The register should include all agendas and all outcomes of all meetings held by all institutions (and bodies, ad hoc groups created by them) and unless an exception applies access should be given to all the documents circulated for these meetings (that is, including SN documents, Room documents, Meetings documents, Notes etc).
5. There is no access to documents produced by ad hoc groups set up by the Council, for example, the Police Chiefs Operational Task Force (PCOTF).
6. All bodies and processes related to the EU must be open and documents accessible including the European Council, the Court of Justice and the forthcoming IGC.
7. All Comitology documents, including agendas, minutes, proposals for decisions should be available in line with the 1999 comitology decision which still does not seem to be happening.
8. All Council documents should be released automatically where there has been a "general approach" or "political agreement" to all or part of the text. Without this citizens are left in the dark until the decision is made.
9. The Commission needs to make a whole range of documents available:
- all SEC doc fully accessible (mostly now just referenced),
- lists of all documents related to infringement proceedings,
- all documents after a successful application or appeal,
- the Commission's responses to legislative proposals made by Member States.
10. We have great concerns over the proposals in the Convention on the Future of Europe for the new Article 36 Committee on operational matters concerning internal security for which no accountability or access appears to apply.
In conclusion it is important to restate why access to documents is so important in a democracy:
a. Access to documents allows individuals and groups in civil society to check and monitor primary sources (rather than depend on sanitised press releases). A recent example was the claim of the Greek EU Presidency that the EU-US agreements contained "extensive data protection provisions" - which is a simple lie, they do not, there is no meaningful data protection.
b. In a wider sense it is essential that civil society, which represents thousands of diverse interests and groups, has direct access to policies and planned practices which may effect those they represent or work with. Only then can they understand how decisions may affect them. Moreover, civil society has to have access to documents before decisions are made, not after.
It is ten years since the Code on access to Council and Commission documents was introduced in 1993 and it is six years since Article 255 in the Amsterdam Treaty allegedly "enshrined" the citizens' right of access. Yet even now less than 50% of the contents of documents on the Council's public register have been released and the Commission's public register is absolutely useless.How much longer are we going to have to wait for freedom of information in the EU?" Access to documents is a prerequisite of a democratic society and we are a very long way from this objective."
12 June 2003
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