16 May 2000
Evidence from Statewatch to the House of Lords Select Committee on the European Communities, sub-committee "E", on the proposed Regulation on public access to EU documents
The issue of openness is not just about access to documents, it is about basic democratic standards which allow citizens and civil society to participate and to call to account the executive and the legislature. Without access to the primary material the release of policy can, unacceptably, be controlled by press officers and "spin doctors".
The Commission is keen to emphasise the provision of "information", particularly on the internet which can be accessed by millions. Whereas only a few hundred people or groups across the EU ever apply for documents from the institutions. The "information" on the internet is both hard, factual information and the presentation of "opinion" - the official Commission or Council view of a proposal. There is, however, an indispensable link between the right of access to documents and the provision of information by the institutions. The right of access to documents ensures that the "information" made available will not be partial, limited, or tailored to the institutions' perspective.
Here we use the term "openness" in reference to access to documents and the term "transparency" to define the decision-making process (see footnote).
Our experience in applying for documents 1994-2000
Statewatch started applying for documents in 1994 but it took over a year to understand the process and to get the documents we applied for. At the time the General Secretariat of the Council operated as if they were doing us a favour, rather than responding to an applicant with the right of access.
The pre-Maastricht assumptions that "documents" belonged to governments/the Council persisted. How could the Council and Commission do their work if everything was handed out? The discussion, it was argued, would simply "move into the corridors" out of public view.
However, the "dinosaurs", as Mr Söderman the European Ombudsman has called them, were under attack on two fronts. First, a number of EU member states were in favour of openness - Sweden, Denmark and Finland, sometimes the Netherlands, and later the UK. Second, and more importantly, the practice of the Council in operating the 1993 Decision was challenged by cases taken to the Court of First Instance (John Carvel of the Guardian, the Swedish Journalists Union and later Heidi Hautala MEP and Aldo Kuijer) and the European Ombudsman (Statewatch and Steve Peers).
The details of the Statewatch complaints to the European Ombudsman are attached in an Appendix.
A number of standard phrases are used by the Council to refuse access. On one occasion Statewatch asked the Council (in a confirmatory application) if it could:
"supply definitions of the following and indicate on what authority these phrases are used:
1. "undermine" (4 documents)
2. "have negative effects" (12 documents)
3. to be "harmful" (1 document)
4. "detrimental" (3 documents)
5. "related subjects" (20 documents)
6. "in the future" (20 documents) can this be defined or is it indefinite?"
No answer was received to this point.
Assessment of the present practice
So what is the current situation?
a) The Council has had a public register of documents on the internet since 1 January 1999 (though despite its name many documents are not included, for example, "SN" and classified documents).
On 1 July 2000 the Council will include on its register that actual text of documents if they are released to an applicant. If no one applies for a document or access is refused it will not appear.
The same decision of the Council, taken under the Finnish Presidency in December 1999, said that the agendas of Council meetings (including working parties) should be on its site. However, there was apparently some difference of policy between the Finnish and Portuguese Presidencies on the interpretation of the decision and only those of the Article 36 Committee, COREPER and the Council of Ministers actually appear.
Most of our request for documents are to the Council. The Council's practice on access to documents have certainly improved over the past seven years and the improvements set out in "What is needed?" below would help greatly.
b) The European Ombudsman ruled in 1998 in a complaint brought by Steve Peers against the Commission that the EC institutions were committing maladministration if they did not maintain a register of documents. The Commission is promising to create a register of documents when the Article 255 measure is in place (by May 2001). It is quite unclear what documents this will include, it will certainly not include all the documents.
The Commission's practice on access to documents has only marginally improved. Citizens are meant to apply to the Directorate-General or Department concerned of which there are dozens (although they can apply to a central address). Our experience in applying to the Commission has not been good. Request are often not answered within the one month limit and on most occasions we have had to put in a confirmatory application to get any response. The Commission's responses would be greatly improved by the creation of i) a single, central, address for applications and ii) a single unit properly staffed (the Council has a unit of about 8-9 people) to deal with applications.
We have also had the experience of applying for documents only to be told by the Commission that these can be purchased from the official Publications Office at great cost.
Background to the proposed regulation
The Amsterdam Treaty was agreed in June 1997. The deadline for enacting the commitment under Article 255 was set as 1 May 2001 (two years after the Treaty came into effect). For such an important task it was to be expected that the Commission, which was charged with drawing up the measure, would produce a consultation discussion document so that civil society could make its views known.
The Commission's "draft" discussion paper was "leaked" and a later version present to a conference in the European Parliament where it was heavily criticised. In June 1999 the Commission decided not to produce a discussion paper but to proceed straight to the adoption of a proposed regulation.
This unpublished discussion paper (for the full text see: http://www.statewatch/secreteurope.html) contained the following conclusion:
"... an embargo could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.."
(Discussion paper on public access to Commission documents, 23 April 1999 and summarising the discussions held between "officials" from the European Parliament, Council and Commission)
This perspective illustrates the intent behind the proposed measure and its effect would be quite contrary to the standards of a democratic society. The idea that civil society "interfere" with the decision-making process is quite extraordinary.
What is wrong with the proposal?
The detailed analyses is the Appendices to our evidence (Appendix I and II in particular together with suggested amendments in Appendix III) deals point by point with our criticisms.
Here we would make a few points:
1. "Decision" not a "Regulation": the decision to present the measure resulting from Article 255 a "Regulation" was taken by the Commission. It is the norm for "Regulation" to bind Member States and is combined with Preambular point 12 (which speaks of the "loyalty" of Member States not to "undermine application of this Regulation").
Article 255 TEC only gives the Community the power to adopt access rules which bind the EC Council, Commission and European Parliament. It gives the Community no power to adopt access rules which bind Member States, even indirectly.
In our view the decision to put forward a "Regulation" was taken by the "dinosaurs" (officials in the Commission and Council). When the draft "Regulation" was leaked to Statewatch in December 1999 it was put on the internet and a number of governments made strong, sometimes public, representations to the Commission - yet nothing changed.
There is no reason why the Article 255 measure should not be a "Decision", replacing the 1993 Decision/Code, and made applicable to the three institutions named in the Amsterdam Treaty.
2. The definition of a document: the core of the objection to the proposed measure is the definition of a "document" in Article 3.a. At present, under the 1993 Decision/Code, an applicant can apply for, and receive, any document subject only to the exceptions. Article 3.a. seeks to permanently exclude the majority of documents from public access.
This is justified in the Explanatory Memorandum, and elsewhere, that officials need the so-called "space to think".
The effect, bearing in mind the intent set out in the unpublished discussion paper referred to above, could be as follows:
a) most documents will be permanently excluded from public access;
b) the remaining documents will be released to applicants after measures have been adopted. The exceptions being those documents which the institutions are required to publish prior to adoption.
c) Reports not concerned with new measures, those on the implementation of measures, would only be made available at the "discretion" of the institutions.
If this were to be the effect it would not only exclude civil society from any role in policymaking but would fatally undermine democratic standards in the EU.
3. "Repeat" not "repetitive": the clearest evidence of the hands of the "dinosaurs" at work is the attempt to replace "repeat" with "repetitive" in Article 5.1. Statewatch took a case on this issue to the European Ombudsman who decided in Statewatch's favour and in Steve Peers' favour in a subsequent case. The Council had tried to argue that an applicant who regularly applied for documents concerning the same issue - in our case "justice and home affairs" - could be treated as making "repeat" applications (and therefore the Council could exercise discretion is giving access which mean answering some requests and not others at random). The European Ombudsman ruled that the term "repeat applications" could only be applied where an application asked for the same document time and time again.
The proposal to introduce "repetitive" applications would negate the spirit of the Amsterdam Treaty and could be used, as it has in the past, to frustrate diligent and rigorous researchers.
4. Registers containing all documents: It is fundamental, in our view, that public registers of documents should contain all the documents (which, of course, does not mean they would necessarily be released to the public). This ties into the definition of a "document" above - if there is only a partial, selective register it will never be known what is being hidden from public view.
The UK government's explanatory memorandum
The Explanatory Memorandum from the government (Foreign Office) contains a very welcome commitment to transparency and openness in the EU and reflects the role the UK has placed in Brussels on this issue.
Welcome too is the commitment to ensure that the measure to be adopted expressly refers only to EU institutions and not to Member States (this backs the position taken by the Finnish, Sweden and Danish governments).
There is however some confusion between what appear to be two different perspectives (perhaps those of the Foreign Office and the Home Office). For example:
"its provisions should be compatible with UK legislation and reflect the spirit of openness called for in the Amsterdam Treaty."
It is arguable whether the proposed UK Freedom of Information Bill is compatible with the "spirit of openness of the Amsterdam Treaty".
What is needed?
What is required is not just the maintenance of the standards offered under the present Decision/Code but, in the spirit of the Amsterdam Treaty, marked improvements. Marked improvements were brought about in the Treaty itself: i) it is now established that applicants can make complaints to the European Ombudsman concerning justice and home affairs under Title VI of the TEU; ii) proposed measures are published in the Official Journal before adoption (this is only of limited effect as measures are often only published after months of discussion when there is already as de facto agreement and can change significantly between publication and adoption. It only covers documents concerning the Council's "legislative capacity" not the greater number of documents which concern ongoing practice).
a. The improvements in the draft measure should be recognised:
i) The extension to include third-party documents would increase access and overturn the current "authorship rule" (Article 2.1). However, this is potentially limited by Article 4.d.
ii) the provision to the public of a list of committees (Article 3) by the Council and the Commission is an improvement. Though in the case of the Commission a list of all working parties (including ad-hoc ones) would not be covered.
iii) Under Article 4 (Exceptions) the threshold for mandatory refusal is higher ("could significantly undermine").
iv) Under Article 5 and 6 the presumption that a refusal to respond within the time-limit is a positive response is an improvement.
v) Article 7.4. provides for partial access to be given to a document where other parts are covered by an exception (this confirms the current case-law).
b. Starting from the basis of the existing Decision/Code and the practice established (following decisions and judgements by the Court of First Instance and the European Ombudsman) and taking into account the improvements under a. above the following changes would also be required to "enshrine" the right of access:
Here we assume that the existing definition of a "document" is maintained:
i) the one month deadline for replying to applicants should be reduced to two weeks;
ii) extensions in replying to applicants should be limited to two weeks;
iii) the grounds for extensions should strictly cover public holidays (eg: at Easter and Christmas) and should not include "the vacational season" (eg: the whole month of August);
iv) Replies to confirmatory application should be in line with the Kuijer judgement: "The institution must set out in detail in its reply to the confirmatory application the reasons which led it to reject any arguments which the applicant made when lodging that confirmatory application."
v) all institutions should be required to maintain public registers of all their documents and make this available on the internet (including e-mails of an official nature) without exception;
vii) the contents of all documents should be made available on the internet (as they would be if an applicant applied for them) subject only to the strict and narrow use of the exceptions (such a decision to apply an exception should be appealable).
The principle of openness in a democracy
Openness and transparency are concerned with the right of civil society to i) participate in decision-making; ii) to be able to monitor the practices resulting from the adoption of measures or guidelines; iii) and thus to be able to assess the impact of EU activities, in all respects, on their specific interests and on the human rights and civil liberties of all (whether resident in the EU or outside).
Our fear was that the forces of reaction would try and use the Amsterdam commitment to try and put the clock back, unfortunately our fears were justified.
Footnote: This evidence was prepared by Tony Bunyan, editor of Statewatch and author of "Secrecy and Transparency in the EU" (1999) and Steve Peers, Reader at Essex University. Both have been applying for EU justice and home affairs documents for a number of years and both have successfully taken complaints to the European Ombudsman.
Statewatch has proposed amendments to the draft regulation:
Suggested amendments to the European Commission's proposed Regulation regarding public access to documents of the European Parliament, the Council and the Commission prepared by Statewatch
Change title from: "Regulation.." to "Decision.."
Comment: The purpose of the proposed measure is to effect Article 255 of the Amsterdam Treaty on public access to EU documents. It would replace the Council Decision of 20.12.93 and the Code of conduct (6.12.93) concerning public access to Council and Commission documents.
The effect of adopting a "Regulation" rather than a "Decision" is that it would bind and override Member States' national policies and practices to freedom of information in regard to EU documents (see second sentence of Article 11). There is no need for the measure to be a "Regulation", nor was there any power under Article 255 of the EC Treaty, inserted by the Amsterdam Treaty for the Community to adopt legislation governing the access rules of Member States, or of any other institution besides the three named EU institutions (the Council, the Commission and the European Parliament).
i) add at the beginning of the 2nd sentence:
"The exceptions must be listed exhaustively and examples.."
ii) delete: 3rd sentence.
Comment: This sentence refers to the definition of a "document" in Article 3.a. which seeks to permanently exclude from access "discussion documents, opinions of departments and informal messages". This is argued to be necessary to protect "free and frank" discussion and the need for officials to have the "space to think" (Explanatory memorandum).
Since 1993 citizens have been entitled to apply for any document subject only to specific and narrowly drawn exceptions. No documents are permanently excluded. The deletion of this sentence and the deletion of the second part of Article 3.a (see below) would restore the status quo. The principle of being able to apply for any documents should safeguarded by the provision on exceptions.
i) delete: ALL
"National legislation on access to documents is unaffected by this Decision or by any other provision in the Treaty."
add point (13) as follows:
"all other Community institutions, agencies and bodies established by the Treaty, and all bodies established pursuant to the Treaty on European Union should adopt rules similar to those in this Decision by 1 May 2001."
Comment: The other EC and EU institutions, agencies and bodies have powers to organize their own affairs, pursuant to which most of them have already adopted rules on access to documents. In some cases (for example, the European Investment Bank), these rules are inadequate, and some institutions (Europol, the two EC courts) have yet to adopt such rules. In order to ensure consistency between the EU institutions, all such bodies should adopt effective access rules based on the principles in this Decision by the deadline date for adopting access rules for the Commission, Council and EP.
2.2: Delete all
No evidence is given in the explanatory memorandum for these provisions.
"This Regulation shall not apply to documents already published or accessible to the public by other means"
Comment: This looks innocuous BUT: it refers to the present practice whereby once a measure has been published by the Publications Office of the EC (eg: in the Official Journal) then documents are not at present provided by the Commission to applicants (who have to purchase complete and often expensive copies of the OJ).
Moreover, documents published in the Official Journal are not the same as the actual documents which contain specific document references which enable a document to be located in the decision-making process.
Nor would it be acceptable for this provision to be applied to documents "published" on the internet - this would assume that all citizens have access.
"This Regulation shall not apply where specific rules on access to documents exist."
Comment: This is not referred to in the Explanatory memorandum. It could refer to "rules" relating to the Schengen acquis. In addition, it overturns the Court of First Instance ruling in Case C-92/98, Interporc II, and as a result would make the new access rules more restrictive than the present system.
i) delete everything after ".... audiovisual recording)"
ii) insert after ".. recording)" the words: "sent or received by the officials of the institutions in their official capacity."
Comment: This would exclude, from the rules only, documents and/or communications of a purely personal nature.
As drafted it is completely unclear which documents would be released and when. As Mr Soderman has observed:
"the Regulation would involve the exercise of a large amount of discretion by the institutions. In practice, therefore, citizens would not so much enjoy rights as be dependent on the goodwill of officials exercising discretion on behalf of the institution."
i) change opening to read:
"the public interest, solely on the following grounds"
Comment: This makes the list exhaustive/limited.
ii) delete: relations between and/or with the Member States or Community and non-Community institutions
Comment: No reasoning for adding this exception is given in the explanatory memorandum. Its meaning is very unclear, and documents potentially falling within this exception would be covered by other exceptions such as confidentiality
iii) change: "the stability of the Community legal order"
to: "confidentiality of the opinions of the legal services of the institutions"
Comment: Again no reasoning for this addition is given. This change would confirm existing case law in the Carlsen case, narrowly limiting the exception to a particular type of document rather than allowing for use of a very vaguely worded exception.
iv) change: "infringement proceedings, including the preparatory states thereof"
to: "infringement proceedings, until the reasoned opinion has been released or the file has been closed."
Comment: This preserves the distinction between reasoned opinions and other infringement documents which the Court of First Instance drew in Case C-309/97, Bavarian Lager, and allows complainants and the general public some supervision over the Commission's exercise of its infringement powers.
v) move: "the deliberations and effective functioning of the institutions"
to a: new 4.2 (renumber 4.1) to read:
"The institutions may refuse access to documents which could significantly undermine the confidentiality of the proceedings of the institutions"
Comment: This would preserve the status quo, which makes this a discretionary exception and which is concerned with the specific issue of "confidentiality", rather than the broad notion of "deliberations and effective functioning". It would improve upon the status quo by inserting a test for "significantly undermining" confidentiality, in line with the new test applying to the mandatory exceptions.
vi) Amend 4(d) to read:
confidentiality as required by the legislation of Member States and as requested by the third party that supplied the document, where the grounds set out in sub-paragraphs a) to c) apply".
Comment: Otherwise it would gives carte blanche to businesses, third states, etc. to refuse documents and makes nonsense of the third-party disclosure expansion. Documents from businesses and third states could still be refused if they contain commercial secrets, threaten international relations, etc.
5.1: replace "repetitive" with "repeat"
Comment: No reasoning is given for this change - from "repeat" to "repetitive" - and is a thinly disguised attempt to by-pass the European Ombudsman's ruling in the Statewatch complaint.
The term "repetitive" would give the institutions the power to refuse access to diligent researchers, journalists and academics specialising in a subject area and to companies and non-governmental organizations with ongoing interests in that area.
The option of a "amicable and fair solution" is not borne out by the practice since 1993. Applicants are rarely if ever consulted.
5.4 and 6.2:
replace "one month" by "two weeks"
Comment: The period of "one month" is frequently extended during the "vacational seasons" (Xmas and the whole of August) or if the request concerns an undefined large number of documents to two months (if a document is refused the appeal process can take up to another two months).
i) change: commercial purposes to the current "commercial gain"
ii) delete: "or exploit it for any other economic purposes"
Comment: No explanation for this change to the existing practice is given in explanatory memorandum. Institutional documents, once released, should be in the public domain except where they are clearly used for "commercial gain".
The formulation "exploit it for any other economic purposes" is not explained and would give unacceptable discretion to the institutions. Would a newspaper which substantially quoted a document be "exploiting it"?
change the last line to read:
"a register of all documents."
Comment: When taken in conjunction with the current proposed definition of a "document" (Article 3.a.) most documents would be permanently excluded from the scope of both the access rules and the register of "documents".
The register should contain references to all documents held by the institutions - the granting of access is a separate issue governed by the use of the exceptions. This is a fundamental safeguard against abuse, corruption and undemocratic practices.
i) delete 2nd para: "This Regulation.."
ii) insert: "This Decision is binding in its entirety upon the Council, the Commission and the European Parliament."
See Comment above on effect of adopting a "regulation".
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