28 March 2012
Notes on the Cashman/Maij-Weggen "amendments to their
amendments" dated 19 April
1. In Article 4.3: internal documents to be refused if disclosure "would" rather than "could" seriously undermine and in 2nd para. "shall be refused" replaces "may be refused"
2. A significant change in Article 4.7: this now limits the application to paras 1-3, thus excluding documents from third parties from the time-limit for documents to be disclosed - "third party" documents would appear, once determined to be inaccessible, denied indefinitely. The effect of the "amendment to the amendment" is that "third party" documents (including those of EU member states) will not be subject to the provision that: "The exceptions... shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years."
3. Article 4a(new) application for documents in a member state: major concession to "dinosaurs", there is a new paragraph added saying: "A Member State may instead refer the request to the originating institution", thus completely removing a person's rights under national laws on access.
4. Recital 12 is changed too making explicit that although Member States will decide according to their national rules, they should take account of the security regulations of the institutions. In other words, a move from a situation where the governments of the Member States sovereignly decided on the release or not of EU-classified information according to national freedom of information laws to a situation where the originator of a decision of classification has the sole authority for its release.
Thus authority rests, according to the Council's newly-adopted security regulations, upon "Officials and other servants of the GSC [who] shall classify, downgrade or declassify information on instruction from or with the agreement of their Director-General." (Annex, Section III, article 2.2).
In other words, the decision-making power which was vested in democratically elected governments will now rest on Council officials.
Postscript: All commentators are quite mystified by
Article 10, paragraph 3 (new) in the Cashman/MaijWeggen amendments
dated 11.4.01: This says that: "Within six months of the
entry into force of this Regulation the Commission shall examine
the conformity of the existing rules on access to documents with
this Regulation." As the draft Council text says that that
the Regulation will enter into "force on the third day following
that of its publication in the Official Journal of the European
Communities. It shall be applicable six months from the date
of adoption of this Regulation" (Article 19) It would appear
on the day it comes into force the Commission will report on
its "conformity" with "the existing rules".
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