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The new Regulation was formally adopted on 30 May 2001 and came into effect on 3 December 2001. A deadline was set for 3 June 2002 when the European Commission and the European Parliament had to provide a public register of documents on the internet. Regulation 1049/2001
The new Regulation (1)
The "Purpose" set out in Article 1 is to: "ensure the widest access possible to documents" as provided for in Article 255 of the Amsterdam Treaty.
Article 2 defines the "scope" of the Regulation as applying to:
"all documents held by an institution, that is to say, drawn up or received by it and in its possession, in all areas of activity of the European Union" (Art 2.3)
However Article 2.5 says that "Sensitive documents" are to be subject to "special treatment" (see below).
Article 3 covers "Definitions". A "document" means "any content whatever its medium" relating to the "policies, activities and decisions falling within the institution's sphere of responsibility" (Art 3.a).
A "third party" is any person or "entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries" (Art 3.b). Here the Regulation starts to get problematic by the inclusion of EU Member States (ie: EU governments) who collectively comprise the Council of the European Union - as we shall see this allows them (and others) to veto access to documents they have submitted into the decision-making process.
Article 4 deals with the "Exceptions" (grounds on which access to documents can be refused) which has four categories. First, there are the core issues: public security (including policing and immigration), defence and military matters, international relations and monetary and economic policy (Art 4.1.a). Here documents "shall" be refused if their disclosure: "would undermine the protection of the public interest". There is no overriding public interest test for giving access. Thus documents which most concern peoples' rights and liberties both within and outside the EU are the most protected from public view.
The second category covering commercial interests, court proceedings and legal advice, inspections, investigations and audits documents also "shall" be refused where disclosure "would undermine the protection of" but here there is a test: "unless there is an overriding public interest in disclosure" (Art 4.2).
The third category effectively covers the "space to think" issue. Documents drawn up for "internal use" or received by an institution where a decision has not been taken "shall be refused" if disclosure "would seriously undermine the institution's decision-making process" - "unless there is an overriding public interest in disclosure" (Art 4.3). The problem for applicants is that until they see the document the test of "seriously" undermining the decision-making process and any public interest is entirely reliant on the view of the institution. Refusal of access on these grounds is largely used to exclude from public view, and debate, issues which might be contentious until after they are adopted.
And this latter possibility is also covered by Art 4.3. This says that documents "containing opinions for internal use as part of deliberations and preliminary consultations.. shall be refused even after the decision has been taken" if it would "seriously undermine the institution's decision-making process" - "unless there is an overriding public interest in disclosure". Again the institution are allowed the discretion to place documents into this category with the effect that we may know the final decision but not the steps that led to it and, again, showing that there is an "overriding public interest in disclosure" is often hard to prove.
The fourth category takes us back to "third party" documents. Articles 4.4 and 4.5 say that an institution "shall" consult the third party before releasing a document (unless it is "clear", to the institution, that it should or should not be disclosed). An EU Member State can also "request" that one of its documents is not disclosed "without its prior agreement".
Article 4.6. allows for "partial access" to a document for the parts not covered by one of the exceptions. This came about following a ruling by the Court of First Instance in the Heidi Hautala case (see below).
Article 5 places limits on national freedom of information laws. Effectively Member States cannot give out an EU document (unless it is "clear" that it should or should not be disclosed) without consulting the institution concerned or they can simply refer the request to it.
Article 6 deals with applications for documents. The infamous exclusion of "repeat" or "repetitive" applications is dropped but "very large documents" is kept from the 1993 Decision and extended by the addition of "a very large number of documents" where the institution "may confer" with the applicant to find a "fair solution" (this previously led to a number of successful complaints to the Ombudsman).
The time for responding to requests has been shortened from four weeks to three weeks (15 working days) (Art 7.1). But there is another "catch-all" in Article 7.3 which allows in "exceptional cases" for this time limit to be extended by another three weeks. In practice "exceptional" can mean regular to consult within an institution or with a "third party".
Article 9 deals with "sensitive documents" and covers those "originating from the institution or agencies established by them, from Member States, third countries or International Organisations" which are classified as "TOP SECRET, SECRET or CONFIDENTIAL" covered in Article 4.1.a. What is interesting is that the classification "RESTRICTED" is not mentioned and is a category most likely to be used to hide potentially embarrassing issues - as far as can be ascertained there are no classified documents or "RESTRICTED" documents on the public register (which only contains unclassified LIMITE documents). This renders Article 9.3 which says "Sensitive documents shall be recorded in the register or released only with the consent of the originator" pretty meaningless.
Article 9.7 underlies the agreement between the Council and the European Parliament on its access to "sensitive documents". (2)
Article 11 deals with the critical issue of what documents will appear on the public registers of the institutions. Article 11.1 says:
"References to documents shall be recorded in the register without delay"
It is certainly questionable whether at least the Commission is anywhere near meeting this obligation.
Article 11.2 says every reference to a document should contain a reference number and "the subject matter and/or a short description of the content of the document", a standard which quite a large number of documents on the Council register do not meet. This article also says that references to documents must not "undermine protection of the interests in Article 4". This is the only limiting factor set out in Article 11 as to which references to documents should or should not appear on the register and, at present, it can only be observed that all three institutions are taking a highly restricted interpretation which may be contrary to the terms of the Regulation. (3)
This Article is certainly open to the interpretation that references to all documents have to be placed on the public registers "without delay" unless such references would "undermine protection of the interests in Article 4" - but even this is a limited discretion as it has to be applied in a narrow and specific way and cannot be applied to whole categories of documents. (4)
Article 12 covers the release of the text of documents (references alone are of limited value if applicants cannot get access to the text itself) and has three references to "as far as possible" thus allowing the institutions wide discretion. So, documents should be directly accessible "as far as possible". And, "where possible" non-legislative documents covering the "development of policy or strategy" (this covers the important issue of implementation) should be accessible. And if direct access is not given then "as far as possible" an the institution should "indicate where the documents is located".
Article 12.2 deals with direct access to: "documents drawn up or received in the course of the procedures for the adoption of acts which are legally binding" on Member States subject to the exceptions in Article 4 and 9. For the Commission this should mean that all documents concerned with a Regulation or a Framework Decision (on justice and home affairs issues) should be on the register - the initial consultations with member states and "expert groups", inter-departmental consultations, the different versions of the final adopted measure and the minutes of any meeting discussing the issue.
Article 15 says the institutions should "facilitate" the right of access to documents as a matter of "good administrative practice". For the citizen this means they need information on the decision-making structures, committees and working parties and their powers - as yet these are not available.
Article 17 says that each institution has to publish an annual report for the preceding year on the number of requests for access which are refused and the reasons and "the number of sensitive documents not recorded on the register" (Art 17.1). This means that the three institutions have to publish annual reports by 3 December 2002. In addition, the Commission has to publish a report on the implementation of the Regulation, at the latest by 31 January 2004 (art 17.2).
Article 18 says that "within six months of the entry into force" (that is, by 3 June 2002) the Commission shall examine the "conformity" of the Regulation on EC historical archives with this Regulation (art 18.2) to "ensure the preservation and archiving of documents to the fullest extent possible" - the existing Regulation allows for no such discretion it lays down clear obligations. Nor does this examination appear to have been carried out.
Steve Peers sums up his overall reaction as:
"the new Regulation ultimately contains several steps forward, counterbalanced by several steps backward and a number of disappointments" (5)
The institutions interpretation of the Regulation
The Regulation, in turn, required each institution to amend its Rules of Procedure and, in the case of the Commission and the European Parliament the creation of a public registers of documents on the internet.
The position and practice of the Council of the European Union was pretty clear. (6)
Its internal rules of procedure follow almost exactly the terms of the new Regulation. The Council also has had a public register of documents on the internet since January 1999. The positions of the European Commission and the European Parliament are less clear.
What will be on the European Commission and European Parliament public registers? Article 11 of the new Regulation states that each institution shall provide a public register, that "references to documents shall be recorded without delay". Quite extraordinarily the Commission Rules of Procedure say:
"The coverage of the register provided for by Article 11 of Regulation (EC) No 1049/2001 shall be extended gradually" (emphasis added)
For the European Parliament its formally adopted "Register of references" make no such limitations. However, its internal discussions indicate that there are at least four categories of documents which will never be made accessible to the public. By June 2002 it was planned that the parliament's public register will only cover legislative documents under what is called a "minimal" plan. Stages two and three will follow at some undefined point in time.
On 3 June 2002 the Commission and European Parliament's registers went online (see: Useful addresses and websites). The Commission's can only be viewed as minimalist mostly covering documents due to go into the Official Journal and some others - there is obviously a long battle ahead to get the most secretive of the three institutions to open up. (7) The European Parliament's register does give access to reports, amendments in plenaries, resolutions and questions, but again has a long way to go to match the Council's register.
While the Council's implementing rules follow the structure of the new Regulation those of the other two institutions do not. For example, both the Commission and the European Parliament have introduced a new, and unfounded, power to exercise discretion where an application for documents is: "complex" (Commission Article 2/EP Article 3) - there is no such concept in the Regulation.
Surprisingly the European Parliament rules seek to establish a further discretionary power under Article 23 of its rules covering "repeated or successive applications concerning very long documents or a large number of documents". The issue of "repeated" applications was the subject of a successful complaint against the Council by Statewatch through the European Ombudsman and the substantive idea was deleted in the negotiations on the new Regulation. Diligent researchers will often make "repeated" and "successive" applications for a large number of documents and it should not be the prerogative of an institution to decide how many documents should be made available.
The European Commission is clearly reluctant to admit that it lost its demand that institutions and officials should have an automatic "space to think". The Regulation says, in Article 4.3 para 1, that a document can be refused before a decision is taken "if disclosure would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure" (emphasis added) and Article 4.3 para 2 says that documents "containing opinions for internal use as part of deliberations and preliminary consultations shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure" (emphasis added). In short two tests are laid down, first that the release a document must "seriously undermine" the decision making process and second, that a view must be taken as to whether there is anyway an "overriding public interest" in disclosure.
Under Article 9 ("Documents directly accessible to the public") of its rules the Commission states that documents can be made available after adoption by the Commission (or Council) where it is clear that none of the exceptions in Article 4 of the Regulation apply and: "provided they do not reflect opinions or individual positions".
This is clearly an abuse of the new Regulation. The only basis on which documents for so-called "internal use" ("opinion or individual positions") can be refused is under Article 4.3 of the Regulation as set out above. There is no power whatsoever which suggests that "opinions or individual positions" are additional grounds for refusing access over and above Article 4.3.
This confused Commission position is also reflected in its: "Access to European Commission documents - A Citizens Guide" on its Access to documents webpage (see below). Under the heading: "In practice, what kind of document can the Commission refuse to release?" it says access might be refused where a document: "expresses the personal opinions of Commission officials or advice from a Commission department". Taken literally this could mean that all preparatory documents prior to the adopted version could be refused. The Citizens Guide defines an "internal document" as one which "has not been finalised or is not intended for publication" and gives examples including: preliminary drafts, interim reports, draft legislative proposals or decisions, memorandum or studies which form the background to Commission decisions and policy measures and correspondence.
The challenges continue (8)
European Parliament takes Council to court over "Solana Two". In October 2001 the European Parliament took the Council of the European Union to the Court of Justice over its failure to consult the parliament over the adoption of a new classification code for access to documents it adopted in March 2001. The parliament argued that this was quite inappropriate as the institutions (the parliament, Council and the European Commission) were in the process of discussing a new Regulation on public access to documents. (9) See: EP takes Council to Court plus full-text of the Security Regulations
The Secretary-General of the Council, Mr Solana, drew up the new classification code, which was simply nodded through by the General Affairs Council of the Council of the European Union on 19 March 2001 (it was an "A" point, adopted without debate) - the European Parliament was not consulted. This followed the infamous "Solana Decision" in July 2000.
The Decision completely changed the Council's classification codes to meet NATO demands. Although it was presented as only covering "Top Secret", "Secret" and "Confidential" documents it also covers the lowest level of classified documents, "Restricted", and completely redefines this too. It also extends classifications to all areas of EU activity.
As noted in the Explanatory Memorandum of 18 January 2001 from the UK Foreign Office:
"the Regulation will also mean that sensitive documents in other fields - justice and home affairs, for example, are kept sufficiently secure."
This is a clear extension of classification rules and security procedures from the "Solana Decision" adopted in August 2000 which only covered defence and foreign policy (ESDP) issues.
There is a major change to the definition of "Restricted", the lowest level of classification, which in the previous code was defined as:
"RESTREINT: information the unauthorised disclosure of which would be inappropriate or premature"
In the Annex, page 19, to the Decision this is redefined as:
"EU RESTRICTED: This classification shall be applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or one or more of its Member States."
Here "Restricted" is defined as applying to:
"The compromise of assets marked EU RESTRICTED would be likely to: adversely affect diplomatic relations; cause substantial distress to individuals; make it more difficult to maintain operational effectiveness or security of Member States or other contributors forces; cause financial loss or facilitate improper gain or advantage for individuals or companies; breach proper undertakings to maintain the confidence of information provided by third parties; breach statutory restrictions on disclosure of information; prejudice the investigation or facilitate the commission of crime; disadvantage EU or Member States in commercial or policy negotiations with others; impede the effective development or operation of EU policies; undermine the proper management of the EU and its operations." (page 78)
This lengthy definition is clearly much, much wider than that of "inappropriate or premature" release of documents in the 27 July 2000 Decision. Furthermore, categories like "prejudice the investigation or facilitate the commission of crime" or "impede the effective development or operation of EU policies" or "undermine the proper management of the EU and its operations" are so wide as to be open to abuse. (10)
Two more Statewatch cases come to a head
In December 2001 the Council of the European Union refused Statewatch copies of the agendas of the EU-US Senior Level Group and the EU-US Task Force because the US vetoed access to them. Statewatch appealed against the initial decision of the General Secretariat of the Council and, finally, on 6 March this year 35 agendas were released (ten of the meetings were conducted by "video-conferencing"). However, the released agendas contained no less that 458 sections of information blocked out with the phrase:
"Not accessible to the public"
In July 2001 - after a four year fight and two successful complaints to the European Ombudsman - Statewatch finally obtained the agendas of ten EU-US high-level planning meetings between September 1996 and February 1998. The agendas concern meetings of the "Senior Level Group" and the "EU-US Task Force" set up under the New Transatlantic Agenda agreed in 1995, see: Ombudsman Decision
On 23 July 2001 Statewatch applied to the Council for the agendas of these two groups after 25 February 1998. On 22 August the Council extended the deadline for replying by one month and on 20 September the Council asked for more time to carry out "consultations". As no reply was received Statewatch wrote again to the Council on 15 December. On 18 December the Council finally replied - after the new Regulation on access to documents had come into force on 3 December 2001.
Their letter said that the agendas of the "Senior Level Group" and the "EU-US Task Force" were "drawn up jointly by the EU and US side" and are "at least partly- third party documents". The Council had therefore "consulted the US authorities" and:
"the US authorities said they were opposed to releasing the documents in question, as in their view they are to be considered as "government-to-government documents" not intended for - even partial - publication"
In these circumstances, the General Secretariat [of the Council] cannot but conclude that the release of these agendas would significantly disturb the good functioning of the cooperation between the European Union and the United States"
On 6 January 2002 Statewatch lodged an appeal against the refusal of access to the agendas:
The Council again asked for more time to "consult" before releasing the agendas (or parts of them) in March. Its answer to the appeal said that:
"the Council decided to refuse access to specific parts of the documents which contain annotations intended to guide the discussion and were meant for internal consideration only. The release of those parts could significantly disturb the good functioning of the cooperation between the EU and the United States and potentially have an impact on the European Union's relations with third countries"
The US authorities, having first opposed any release of the agendas (even partial access), did a U-turn and reluctantly agreed provided 458 deletions were made.
What the documents tell us
All that can gleaned from the agenda alone is the scope of these high-level meetings between the EU and the US. The World Trade Organisations (WTO), the Transatlantic Business Dialogue (TABD) and the Transatlantic Labour Dialogue (TALD) figure regularly as topics, as do discussions on China (Human Rights), Russia, Ukraine, Turkey, data protection (safe harbour), UN reform and finances, Kyoto, Plan Colombia, climate change.
The agendas show that justice and home affairs issues are consistently on the agendas. Drugs and the trafficking in women together with "Law enforcement: organised crime, computer [Not accessible to the public], stolen vehicles proposal, Europol exchange follow-up" and more recently "asylum/migration and police cooperation".
European Ombudsman calls on the European Parliament to take action on Statewatch case
The European Ombudsman, Mr Jacob Soderman, has sent a Special Report to the European Parliament calling on it to intervene in order to get the Council of the European Union (the 15 EU governments) to obey the Ombudsman's findings that documents should be given to Statewatch, see: Special Report to the European Parliament
Statewatch lodged a complaint with the Ombudsman concerning the Council failure to respond to requests for documents and information in July 2000. The first was a request to the Council for access to all the documents considered at a meeting of the Police Cooperation Working Party (Experts' meeting - Interception of Telecommunications) on 3-4 September 1998 - this concerned the discussion over a document, ENFOPOL 98, to extend telecommunications surveillance to cover e-mails and mobile phones. The Council tried to deny the existence of six documents listed in the "Outcome of proceedings" (the minutes) of the meeting.
The second aspect of the complaint concerns Statewatch's request for a list of the documents considered at a series of meetings in January 1999 including any documents not listed on the agenda or in the "Outcome of proceedings" such as "Room documents, non-papers, meetings documents, SN documents". Statewatch argued that, under the Code of Good Administrative Behaviour, citizens were entitled to have a list of all the documents considered so that they could see which views/positions were accepted and which were rejected. The Council failed to supply the lists. Moreover, Statewatch's complaint noted that the Council issued the following instruction when its public register of documents went online on 1 January 1999:
"Confidential, Restreint, SN and non-paper documents will not be included in the public register. For this reason, from now on these documents will not be mentioned in official Council documents (in particular: on provisional agendas and in outcomes of proceedings)."
The Ombudsman found that "the Council's failure to maintain a list or register of all documents put before the Council constituted maladministration and made a Recommendation to the Council. The Council responded by saying it accepted this Recommendation but the Ombudsman's Special Report concludes that its response:
"raise doubts as to whether the draft recommendations will indeed be implemented"
The Ombudsman's view is that the "Council should establish such a list and make it available to citizens. This is vital so that citizens can use their right of access to documents properly". The report concludes that under the new Regulation on access to documents, which came into operation on 3 December the Council is obliged to place all documents on the public register. (11)
This is only the sixth Special Reports that the European Ombudsman has made to the European Parliament and is the strongest power available to him - it usually follows the failure of one of the institutions to respond positively to his Recommendations to change their practices.
As this publication goes online the Special Report is being considered by the Petitions Committee in the European Parliament.
Heidi Hautala MEP wins again in Court of Justice
On 6 December 2001 the Court of Justice upheld the decision of the Court of First Instance in the case brought by Heidi Hautala MEP against the Council of the European Union for refusing to give access to its code on arms exports. The Court found that the Council had refused to consider, or grant, partial access to those sections of the document which were not covered by the exception allowing refusal. The Court said that:
"The Council must promote the widest possible access of the public to the documents it holds. If a document contains confidential information, the Council must consider whether partial access is possible"
The Court of First Instance had annulled the Council's decision on 19 July 1999 but the Council then, most unusually, it had appealed, see: 1st case: T-14/98 [1999] ECR II-2489, Judgment: Court of First Instance 2nd case C-353/99 P, Judgment of 6 Dec, 2001, Judgment: European Court of Justice Opinion: Advocate General
The Kuijer cases
On 3 July 1998 Arno Kuijer, university lecturer and researcher from Utrecht in the Netherlands, applied to the Council for copies of: a) reports from 1994-1997 and for 1998, on the situations in 28 third countries in relation to asylum-seekers; b) "joint missions or reports" carried out by EU member states and sent to the Council's CIREA (Centre for Information, Discussion and Exchange on Asylum), "reports drawn up for CIREA"; c) a list of "contact persons" used by CIREA in asylum cases.
He was refused access to these documents and told that the CIREA reports (b. above) did not exist. Arno Kuijer made a confirmatory application appealing against the decision and saying that he believe the documents (b. above) did exist. The Council turned down the appeal on general grounds under Article 4.1 of the 1993 Decision saying that disclosure could undermine international relations. Perversely, the Council tried to argue that the 1993 Decision on public access was "to allow the public to have access to the Council's documents, not to the information contained in them".
The decision of the Court , on 6 April 2000, in finding against the Council broke new ground. The Court said the applicant should be granted access to the documents with the exception of those parts properly covered by the exception under Article 4.1. The Council should supply the list of contact names (without the fax and phone numbers as the applicant had suggested). An examination of 10 reports supplied showed that the Council had failed to show how Article 4.1. applied to the documents refused and had, in the applicant's words, used "short, identical and ritualistic" responses. The Court said that the content of the documents "varies considerably, not only in nature.. but also in the degree of sensitivity". The critical finding of the Court was where the applicant has put forward:
"factors capable of casting doubt on whether the first refusal was well founded... the institution is obliged.. to state why those factors are not such as might warrant a change in its position."
This means that the Council has to answer the arguments put forward by an applicant making an appeal - and cannot just ignore them as it often does at present. (12)
However, on 5 June, the Council still refused access claiming new grounds for refusal and the case went back to the Court of Justice. In its judgment on 7 February 2002 the court found against the Council new arguments.
The Council's basic argument was that the content of the documents could be construed as criticism of the third countries in question and that their disclosure could therefore be prejudicial to the EU's relations with those countries. The court, having order the production of the documents so that they could be examined, dismissed this view on several grounds: i) the fact that the documents contained "information or negative comments" did not of itself mean there was a risk of the public interest being undermined. Refusal must, the court said, "must be founded on an analysis of factors specific to the contents or context of each report"; ii) the documents contained analyses of the political situation and many of the facts "have already been made public" and the EU may "itself, through its institutions, in particular the Council and the Presidency, [have] already officially criticised the internal situation of the countries concerned" and its relations "may be such that they cannot be damage by disclosure of any criticism"; iii) the court also said the Council "erred in law" when it refused access to the names of contact persons which had been made public in certain Member States.
Conclusion
We have come a long way since the first challenge by John Carvel of the Guardian to the Council operation of the 1993 Decision on access to documents. Countless requests and appeals, cases in the Court of First Instance (of the European Court of Justice) and complaints to the European Ombudsman have resulted major improvements.
"Democracy" and "democratic standards" are not static, they are ever-changing. Governments and Ministers may or may not be open and transparent and often seek to control what is released and when it is released. Democracy cannot, and should not, rely on them to maintain a democratic culture, rather it is sustained by lively parliaments and an ever vigilant and critical civil society.
The fight for freedom of information in the EU and against secrecy is a small, but indispensable, contribution to this process.
Footnotes:
For the Rules of Procedure adopted by the three institutions please see: FOI in the EU
The new Regulation allows for "partial access" to documents. ie: the contents of a document not covered by one of the exceptions. The Council register notes the partial release of a document but, instead of giving direct access online, a person has to apply for it even though it has already been "released".
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