EU-US: US demands 10 year ban on access to PNR documents

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The US government has written to the Council of the European Union asking it to agree that all the documents regarding the negotiations leading to the controversial new EU-US PNR (passenger name record, signed on 23 July 2007) agreement be kept secret:

"for at least ten years after the entry into force of the agreements"

This was just seven days after the agreement was signed.

Under the agreement personal details of every passenger going to the USA are accessed by US agencies to check against "watchlists". The 34 categories of data in the old agreement (in 2004) have been collapsed into 19 categories including "open fields", a plethora of US agencies are able to get the data and further process it (add new information) and this can then be passed on to third countries. The European Parliament and the EU's data protection authorities are highly critical of the agreement and the negotiations the subject of controversy (see below).

The letter (dated 30 July 2007): EU doc no: 12307/07 from Mr Paul Rosenzweig, Acting Assistant Secretary for Policy at the US Department for Homeland Security, to the EU Council Presidency lays down the terms - after the event - concerning the handling of all documents (including e-mails) in the negotiations and requests:

"confirmation of the following procedures"

Point 1 says that:

"The negotiations and the negotiating documents are to be held in confidence"

"Negotiating documents" are to include any documents "passed between" the EU and the USA and any "internal" documents (ie: in the Council or Commission) on the negotiations: "such as notes of meetings or strategies".

Point 2:

Everyone handling the documents is to be "alerted" that they cannot "share" them with anyone "not authorised to see them" and:

"These documents will be held in confidence for at least ten years after the entry into force of the agreements"

Under Point 4 the US side intends to enforce its demands by marking all the documents with:

"Foreign Government Information - Modified Handling Authorized"

The letter ends with:

"We look forward to your confirmation of our mutual understanding"

A Note from the Council Presidency (dated 31 August 2007): EU doc no: 12305/07 sets out the procedure for handling the response to the US letter. It asks COREPER (the committee of high-level representatives of each government based in Brussels) to invite the Council to agree the text of a reply.

The draft reply is set out in EU doc no: 12309/07 This says that:

"The European Union shares your understanding regarding the confidentiality of the negotiation process"

In direct response to the US demand the letter says:

"Article 4, paragraph 1(a), third indent of the Regulation [1049/2001] obliges the institutions to refuse public access to a document where disclosure would undermine the protection of the public interest as regards international relations."

While any request for access to a document:

"must be examined and replied to on a case-by-case basis.. Obviously, such a request will always be evaluated in good faith, keeping in mind the US expectations regarding confidentiality of negotiation documents, as expressed in your letter of 30 July 2007, and with due regard for the applicable EU legislation."

In other words, people can apply for these documents and the request will be examined "with due regard for the applicable EU legislation" in the context of "US expectations".

Article 4.4 of the Regulation deals expressly with access to documents from third parties (ie: non-EU states like the USA). This says that the institution (ie: the Council) shall:

"consult the third party

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