28 March 2012
A new draft of the Council (the 15 EU governments) common position on the new code of access to EU documents is being discussed at COREPER today (4 April). COREPER is comprised of the permanent Brussels-based representatives of EU member states. The previous draft of 15 February is amended in a number of ways which partly reflect the discussions with the European Parliament and partly presents some of the more controversial issues in a more subtle, disguised, form. Full-text: Text
In particular: 1) the inclusion of an entirely new provision on "sensitive documents" emanating from the infamous "Solana Decision" and subsequent changes to meet NATO demands; 2) elevating the significance of Declaration no 35 in the Amsterdam Treaty to allow EU member states to have a "veto" over access to their documents. This Declaration was introduced at the last minute during the Amsterdam negotiations to pacify the "dinosaur" member states, now it would contaminate the citizens' right of access.
This draft Council position would also significantly undermine rights available under the current code of access to EU documents. The European Parliament's representatives have consistently said they would not support any proposal which undermine current rights. Analysis: Council draft position undermines existing rights
Tony Bunyan, Statewatch editor, commented:
"That the Swedish Presidency of the EU has improved the draft it inherited from the French Presidency should come as no surprise. But it would still leaves us with a code of access that undermines existing rights and is quite unacceptable.
There is no way the European Parliament can agree to this text if it wants to maintain existing rights of access under the 1993 Decision and, in the spirit of the Amsterdam Treaty, improve and "enshrine" the citizens' right of access."
ANALYSIS of the Council draft common position
Article 1: sets out the purpose.
Article 2: covers "Beneficiaries and scope".
This provision has changed from the 15 February draft. While it still includes the overall commitment in 2.3 that the measure would apply to "all documents held by an institution a new 2.5. provision has been added covering "sensitive" documents (see below).
Article 3: covers the "Definition" of a document. This has changed and is an improvement on the earlier versions as it retains the definition in the existing code (3.a). But this is then undermined by 3.b. which defines "third parties" and includes EU member states (governments) as "third parties" (member states form the Council of the European Union and cannot be "third parties").
DELETE "Member states"
Article 4: covers the "exceptions" (ground on which access can be refused)
Article 4.1. says the institutions "shall" refuse access "where disclosure would undermine the protection of".
AMEND: i) change "shall" to "may"; ii) insert "significantly" ("significantly undermine") and iii) insert add the end of 4.1: "unless there is an overriding public interest in the disclosure"
Article 4.3. access to documents which contain "individual opinions for internal use as part of deliberations and preliminary consultations" may be refused "even after the decision has been taken if disclosure would seriously undermine its ability to carry out its duties unless there is an overriding public interest in disclosure". This leaves unacceptable discretion in the hands of the institutions as the standard, "ability to carry out its duties", is far too, wide.
DELETE second sentence of 4.3.
This gives EU member states a "veto" over access to documents which they have submitted to the decision-making process and the ongoing practice of the EU. It gives an absolute right of "veto" with no test (eg: the receiving institution, on consideration, judges it falls under one of the exceptions in 4.1. or 4.2).
Says that an institution should "consult" other "third parties" (eg: NATO or USA) before assessing whether a document falls under the exceptions in 4.1 & 4.2. But then it says "unless it is clear that the document shall or shall not be handed out" - what standard would apply in the case that it is "clear" that a document should not be handed out?
This a new formulation affecting national laws on freedom of information. A member state will be expected to "consult" the institution from which a document originated and not give access if it would "jeopardise the attainment of the objectives of this Regulation".
There is an improvement in this draft with the institutions' having to respond to request for documents with 15 working days, in other words, three weeks (previously a month).
Cover confirmatory applications (appeals against refusal of access). Article 8.3. says that the failure of an institution to reply shall be considered as a "negative" response.
AMEND to read "positive" response
This is an entirely new section on "sensitive documents". All refusals of access to documents should be based on the exceptions in Article 4.
There is no test of public interest attached to this provision. It is outwith and in addition to the exceptions in Article 4.
Whereas the original "Solana Decision" concerned defence and foreign policy this provision extends to all areas of EU acitivity including justice and home affairs, trade and aid.
9.1. Defines "sensitive documents" as those documents classified as "Top Secret", "Secret" and "Confidential" yet from the Council's own documents it is clear that:
i) "Restricted" will be treated exactly the same;
ii) that any non-classified documents, or group of documents on the same subject, which refer to a classified document (including "Restricted") will automatically be treated as if they are classified.
9.1. Also extends extend this special protection to the "essential interests" of "one or more of its Member States in the areas covered by Article 4.1(a)", yet this Article does not cover Member States.
9.2. Will also "vetted" personnel (eg: police and military) sitting on Council working parties to decide not only on applications for access but also "which references should be made in the public register". Such officials are not noted for their openness.
9.4. Says the originator has a "veto" over not just access but also any reference on the public register.
DELETE this Article in its entirety.
Article 10.2. says that where a document has already been released "and is easily accessible to the applicant, the institution may fulfil its obligation of granting access informing the applicant how to obtain the requested document."
How is the institution to know it is "easily accessible"? Does this mean that an applicant might have to buy an expensive copy of the Official Journal? What distance is reasonable for an applicant to travel to get access?
As important is the fact that the reproduction of original documents in other forms (eg: in the Official Journal or on the internet) does not include all the information in a document (eg: its reference number, originating source, previous documents) - they are incomplete documents.
This deals with registers of documents online.
11.1. Last sentence
AMEND to read: "References to ALL documents shall be introduced onto the register without delay
11.2. The second sentence says: "References shall be made in a manner which does not undermine the protection of interests in Article 4." This is quite imprecise and allows the institutions' full discretion.
AMEND with specific proposal
The proposal distinguishes between "registers" (Article 11) and "direct access" (Article 12), they should be combined.
12.2. & 12.3. Distinguishes between access to "legislative documents" and "other documents" (everything else) and gives institutions total discretion - to be included "where possible".
DELETE 12.2. & 12.3
This would introduce an interinstitutional committee and has no place in a code of access for citizens.
Reproduction of documents: which says:
"This Regulation shall be without prejudice to any existing rules on copyright which may limit a third party's right to reproduce or exploit the released documents."
There should be not restriction at all on the reproduction of public policy documents. The rights of individuals, like playwrights, songwriters etc, should of course be protected by law.
DELETE and REPLACE with:
"1. An applicant who has obtained a document initially produced by a public body may reproduce it in any form if due credit is given to the source of the document.
2. An applicant who has obtained a document initially produced by a private entity may reproduce it subject to the applicable intellectual and industrial property laws, applied with due regard for publication of information in the public interest.
This Article should recognise expressly that documents produced by public entities with taxpayers' money are in the public domain, and so can be reproduced provided that the source is duly credited. However, documents produced by private entities might be protected by intellectual property law, but in such cases there might be a public interest justification for publication. (Source: "Our code: a code of access to EU documents for civil society")
These provisions should be included in the Regulation.
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