Access to documents: New draft shows how far the EU is from real freedom of information

The latest text of the new code of access to EU documents prepared by the Swedish Presidency shows up the different positions of the Council, Commission and European Parliament. The new text, dated 29 January, makes a few symbolic concessions to the European Parliament's report:
New draft (full-text)

Only two outstanding differences within EU member states (indicated by brackets in the text) apparently remain from the discussions on the Council's draft common position. First, the proposal that would override national freedom of information laws by requiring that any request for an EU document which has not been released by the originating EU institution has to be referred by the member state to that institution (Recital 14, Article 5.5). Second, a new proposal (Article 1.5) which says the the new code "shall be without prejudice to rules governing the transmission of documents between the institutions" - in other words, access to documents would be determine not just by the new measure but also by any provisions in as yet in unseen and undrafted interinstitutional agreements.

Critique of the new draft - 18 issues that undermine freedom of information

There are 18 fundamental issues in the draft which either remove existing rights under the 1993 Decision and/or undermine any claim that the new measure will introduce freedom of information for the EU. If adopted in this form the new measure would, in effect, be a rejection of the principle of "enshrining" the right of citizens to have access to EU documents agreed in Amsterdam in June 1997. The intention was to build on the 1993 Decision on access to documents and the improvements made through challenges in the Court of First Instance and to the European Ombudsman. See:  Code of access for civil society

These issues are:

The principle set out in Article 1.2. that the Regulation would apply to:

"all documents held by an institution, that is to say, documents drawn up by it or received from third parties and in its possession, in all areas of activity of the European Union."

is then repeatedly negated by the extensions in the exceptions (Article 4: grounds on which documents can be refused) and by the permanent, or virtual, exclusion of whole categories of documents from public access.

1. Article 1.2: says that "sensitive documents shall receive "special treatment" (see point 5 below). DELETE

2. Article 1.5: says the the new code "shall be without prejudice to rules governing the transmission of documents between the institutions" - in other words, access to documents would be determine not just by the new measure but also by any provisions in as yet in unseen and undrafted interinstitutional agreements. DELETE

3. Article 2.3: says that when the three institutions drawn up (or amend) their "Rules of Procedure" (no drafts are available) they shall decide "which categories of documents will be directly accessible to the public". The idea of making documents "directly accessible" by making the text available without a citizen having to go through the procedure of applying for access is a positive one. But by implication this would mean that other "categories" would not be directly accessible and that the practice may vary between the institutions. AMEND

4. Article 3.a: would permanently exclude from access all documents that fall under the so-called "space to think" (policymaking), the "space to act" (implementation, practice) and nearly all memos, letters and e-mails. From the word "excluding" onwards DELETE

5. Article 3.b: defines "sensitive", classified, documents as determined by the "rules adopted by the institution concerned" - where are these rules, what will they say? All refusal of access should be based solely on the exceptions in Article 4. DELETE

6. Article 3.c: defines the meaning of a "third party" and includes as "third parties" the "Member States" of the EU! Member States of the EU, the 15 governments, comprise the Council of the European Union so how can they be "third parties"? The implications of giving them the status of "third parties" is that they would have the right to veto access to documents they submit to EU policy-making. The inclusion of "Member States": DELETE

7. Article 3.A.3: this would substitute for the current definition of "repeat applications" (where the Council lost in a case Statewatch took to the European Ombudsman) the following: "general and repetitive or applications concerning very large documents or a very large number of documents" (another change in the face of a case lost by the Council). Such a clause which would be used against diligent and scientific researchers who work in a specific field (eg: justice and home affairs) - the Council argues that "repetitive" would cover regular requests for documents on the same subject. DELETE

8. Article 4: the "exceptions" (grounds on which access may be refused). Article 4.1: should provide a much stronger test for refusal. Where it reads "The institutions shall refuse access to documents where disclosure would undermine the protection of", it should read: "The institutions may refuse access to documents where disclosure would significantly under the protection of": AMEND

9. Article 4.1.a: "military matters" is far to wide. It should be defined i) to exclude "non-military crisis management" which are civil issues and ii) to exclude policy-making (as distinct from operational planning and details). AMEND

10. Article 4.3: Allows EU member states to veto public access to documents they have submitted to EU policy-making. It would also allow a de facto veto over access to non-EU states (eg: US) and non-EU organisations and agencies (eg: NATO and ILETS) : DELETE

11. Article 4.4: would allow the originators of "sensitive" documents to have a veto over access, these should be subject to the exceptions in Article 4. DELETE

14. Article 5.4: allows an institution to fail "to reply", this is writing into the Regulation bad administrative practice, institutions should be obliged to reply to a request for information within one month. DELETE

13. Article 5.5: this is the provision which would undermine national freedom of information laws. Any request for an EU document which has not been released would have to be sent to the EU institution. The same would apply to an application for a document made to an EU institution, the request would have to be sent to the originating institution. DELETE

14. Article 6.3: on the same grounds as Article 5.4: DELETE

15. Article 7.2: This allows an institution a complete let-out on the need to supply copies of documents. At present the worst offender exploiting this notion is the European Commission which tells applicants to buy (very expensive) copies of the Official Journal rather than supplying the original document (these documents are on the internet for 40 days which is useful but no good after this period). DELETE

16. Article 8: the Commission draft proposal and the first draft Council proposal said:

"An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purpose without the prior authorisation of the rightholder."

The final draft of the French Presidency changed this to:

"This Regulation shall be without prejudge to any existing rules on copyright which may limit the applicant's right to reproduce or exploit the released documents."

Of course it was the same French draft which introduced the idea that EU member states are "authors" with the right to veto access to "their" documents. This should be amend to distinguish between rights for novelists, playwrights and songwriters etc which should be protected and public documents which rightly belong in the public domain without restriction. AMEND

17. Article 9A.1: concerns the creation (in the case of the Commission and the European Parliament) of public registers of documents. This should be amended so that every document held is on the register (these would still be covered, and refused, by the exceptions in Article 4). AMEND

18. Article 9A.2 & 3: this would exclude any references to i) "sensitive documents", permanently; ii) any reference to a document falling under the "exceptions" (Article 4). DELETE

Statewatch News online
For full background documentation on the new code see: "Secret Europe"