Statewatch's response to the Council's answer to the two complaints
Statewatch sent the following response to the European Ombudsman on 28 January 2001 in response to the Council's two letters concerning: i) access to the agendas of the meetings of the "Senior Level Group" and the "EU-US Task Force" set up under the Transatlantic Agenda (916/2000/GG); ii) the failure of the Council to supply a list of documents which are deliberately being excluded from agendas, outcomes of proceedings and the public register of documents and the failure to supply specific documents from a meeting of the Police Cooperation Working Party (917/2000/GG).
I would make the following comments on the Council's response to this complaint:
1. The Council's response simply reiterates its response of 28 September 1998.
2. The Ombudsman's critical remark in the first complaint stated:
"the Council should reconsider the complainants confirmatory application dated 28 July 1997 and give access to the documents requested unless one or more of the exceptions contained in Article 4 of Decision 93/731/EC applies."
The Council claims to have re-considered its position in response to this first complaint albeit, as they admit, on entirely different grounds.
In response to this complaint about their response to the first complaint they say "there are no grounds to fault this decision" and say that I can complain to the Ombudsman under the relevant Treaty (point 5). This circular process could go on for ever and potentially undermines the role of the Ombudsman (see point 5 below).
3. In point 5 the Council argues that: "it left open its position as to the problem of documents of which the Council is one of several co-authors". It would be useful if the Ombudsman could consider giving guidance on this issue.
4. In my complaint I cited evidence to show that the General Secretariat of the Council is part of the Council of the European Union (an institution). Whether the pending case (T-205/00), which was filed long after my first complaint, is substantially concerned with the status of the General Secretariat I do not know - perhaps it is part of the case simply because the Council is making exactly the same argument there as it has made in this context (point 7). It is inconceivable that the Court will decide that the General Secretariat is not part of the Council and in these circumstances the Council argument can only be viewed as an attempt to delay a decision.
It is however interesting to note that on the very next page it refers to the "Council" and "its officials" (point 9).
5. The Council alludes (in point 11) to the "legality of that decision, the review of which does not fall within the remit of the Ombudsman's competence". The issue is one of maladministration for which the Ombudsman is the statutory authority. However, whether in a case of maladministration, or of legality, it is necessary for an institution to provide sufficient reasoning to allow for judicial review. In this instance the Council, on an ongoing basis dating back to 1996, has failed to provide proper reasoning - indeed what reasoning it has offered has changed at almost every stage. As the Council appreciates the "useful guidance" provided by the Ombudsman (point 4) it would be useful if the Ombudsman could clarify the position on the practice of systematic ill-reasoning as an instance of maladministration.
I ask the Ombudsman to consider these remarks in conjunction with those made in the initial complaint.
My complaint concerned the Council's failure to provide information concerning documents considered at meetings concerning justice and home affairs.
1. The Council appears to claim, in open contradiction to the 1993 Decision, that there are two categories of "documents". There are those which it considers are "documents" and those which it considers are not "documents". The latter are excluded from public access, from the archives and from the public register of documents as a class/category.
They claim there are documents which:
a) "represent the preliminary reflections of a single person" or
b) of "a very small group of persons"
One might observe that the "reflections" of a "single person" may be of greater or lesser significance. For example, if that "single person" is Mr Solana, the Secretary-General of the Council (for example, SN 3328/1/00, 30.6.00, on the security plan for the Council which included recommendations for major changes in the 1993 Decision on access to documents). Similarly a "very small group of persons" could be a room document expressing the views of one or more governments or nearly final drafts of measures/Treaties usually labelled "SN documents".
To argue that documents should not be recorded, archived, registered or accessible to citizens when produced by a "a single person" or by a "very small group of persons" is an extremely dangerous idea in a democracy - indeed it is an argument that is traditionally used in closed totalitarian societies.
2. The Council argues that documents circulated at meetings by the Presidency or a member state delegation or the General Secretariat are of a "purely transitory, preliminary nature" (point 8). They argue that if these ideas are taken up they will be "reflected" in the final document. In reality some of these documents may indeed be circulated at an early, so-called "brainstorming" stage but other "non-papers" can be on the table at all stages of the decision-making process.
The point is not that they may or may not be "reflected" in the final document but rather that the citizen has a right to know what arguments were on the table and which were accepted and which rejected. Citizens have a right to know what influences were brought to bear in determining public policy.
3. The Council argues that: "The crucial problem in this context is of course to determine the point at which a draft or informal paper is to be considered as a document which should be registered and archived."
Decision 93/731/EC makes no such distinction. A "document" is a "document" held by the Council. The Council is governed by the definition of a "document" set out in Decision 93/731/EC. This definition makes no distinction between different kinds of documents.
4. The Council's response indicates that it does not abide by the definition of a "document" set out in the Decision. Instead the Council operates on the basis that there are two categories of documents. It argues, there are "official documents" (point 7) and documents it claims are "of a purely transitory, preliminary nature" (for example, non-papers, SN documents or room/meetings documents). Both of these categories it says concern documents concerning the policy-making process of the Council. Certainly in the case of SN documents they are allocated a reference number and the documents falling into this category number several thousand each year.
5. There is, of course, a third category of documents to which it does not refer. This is illustrated by the opinion of the Council's Legal Service (7594/00, dated 5.4.00) which reads:
"the Council's Legal Service continues to think that the inclusion of the Council General Secretariat within the scope of the present Regulation is contrary to the Council's current interpretation and practice, according to which a "Council document" is taken to mean only documents held by all members of the Council or their representatives and delegates in one of its preparatory bodies. The extension of the scope of the present Regulation to cover documents of the General Secretariat would lead to the situation whereby the public could obtain access to documents which were not even known to the members of the institution and/or their delegates and representatives."
This statement indicates that the Council's "current interpretation and practice" excludes from access under Decision 93/731/EC any document which has not been sent to member states (or their representatives).
This third category can be taken to cover ongoing practice as distinct from policy-making. For example, all documents (in whatever form) between the different DG's of the General Secretariat, documents circulated within a DG, documents sent to other institutions (eg: the Commission), reports on meetings attended by staff of the General Secretariat, correspondence with third countries (including the applicant countries), reports on applicant countries, reports from missions and so on.
To suggest, as the Council does, that to keep a "complete, centralised record and register each paper which is circulated to its members or representatives" would "impose a heavy administrative burden on the General Secretariat" is quite frankly not in accord with good administrative practice let alone basic democratic standards.
I would invite the Ombudsman to comment on the Council's interpretation of a "document" within the meaning of Decision 93/731/EC and to consider making a Recommendation on the proper administration and recording of documents held by the institution.
6. Regarding my initial complaint concerning a request for a list of documents considered at the meeting of the Police Cooperation Working Party on 3-4 September 1998 the Council replied on 8 June 1999 that they had examined the outcome of proceedings and "identified" two more documents (in addition to the one document initially supplied, 10102/98). These were 10850/98 and 10951/98.
7. However, I now have a copy of the "Outcome of Proceedings" of the meeting of 3-4 September 1998 (copy enclosed). The "Outcome" lists further documents which the Council did not supply, namely:
i) Footnote 1, page 1: "French delegation note of 2 September 1998, subject: Police Cooperation Working Party: Draft joint action to combat child pornography" and
ii) On page 2 Agenda item 4 refers to "meeting documents 1-6" and footnote 1 refers to "Meeting documents 1 to 5..."
I would suggest that the Council examination of these "Outcomes" was to say the least partial and request that they now supply copies of the documents.
The Council has failed to respond to the point that they failed to supply the information requested - lists of documents considered by the meetings in question which could facilitate the citizen's right of access to documents.
I also ask the Council to supply the documents mentioned in points 6-7 above.
I would ask the Ombudsman to consider making a Recommendation on the proper administration and recording of documents held by the Council.
These remarks should be taken in conjunction with those in the complaint.
28 January 2001
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