28 March 2012
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Viewpoint by Tony Bunyan
More openness or just a drop in the ocean? The need for Freedom of Information in the EU
Tentative moves have been made to improve openness (access to documents) and transparency (of the decision-making process) in the EU. The European Ombudsman issued a Special Report in October on the Council of the European Union's (the 25 governments) refusal to meet in public "whenever it is acting in its legislative capacity". Meanwhile Mr Kallas, Vice-President of the Commission, is to launch a "Transparency Initiative" which will list recipients of EU funding and "improve the coverage of the existing commission register of documents".
The real question for the Commission however is not to "improve" its register of documents but to actually implement Article 11 of the Regulation on access to documents which came into effect in December 2001. This says that "References to documents shall be recorded in the register without delay" (Art 11.1). In practice the Commission has utterly failed to implement this obligation, instead it has partially implemented Article 12 on legislative measures, meaning that only a fraction of the documents it produces are included in its register. The Commission has an internal central document database covering every aspect of policy-making and evaluation - why is this not the basis of its public register?
For both the Council and the Commission the problem is which documents they give access to and which they does not. For example, the largest category of refusal of access to documents by both institutions is where disclosure would "seriously undermine the institution's decision-making process unless there is an overriding public interest in disclosure". This is the so-called "space to think" for officials and not in a single instance has a "public interest" argument by an applicant been upheld.
In effect this means for example that although final Council and Commission positions are made public few, if any, of the internal discussions leading to the position are available before the measure is adopted. In a democratic EU all documents related to a proposed new measure should be made public at the same time as the proposal. Citizens can then see what options and influences were rejected or adopted.
One area in which there is the greatest secrecy are the numerous EU meetings involving the USA on JHA issues. Between 2001-November 2005 a total of 409 documents on the Council register concern "USA" of which only 48.8% are publicly accessible (compared to over 62% in the register as a whole). Sixteen documents are "partially accessible" meaning that the US position is blanked-out.
Most USA documents which are accessible were the subject of parliamentary scrutiny in national and European parliaments. However, of 118 documents that were not, only 20 are accessible (17%) - mainly concerning high-level EU-US meetings and "Informal" meetings covering a range of issues.
Since the Amsterdam Treaty came into force in 1999 the number of documents in the field of justice and home affairs (JHA) has mushroomed and there are now over forty working groups that have to be tracked. Dozens of documents are produced every day by the Council and Commission making the job of monitoring what is being discussed almost impossible even for the most dedicated of researchers (let alone parliaments whose agendas are cram-packed with new measures).
The time has surely come for an EU Freedom of Information Regulation governing all its institutions. As distinct from "access to documents" which require each issue to be tracked down in the plethora of committees and working groups, FOI in the EU would mean that a person could simply request all the documents concerning a specific measure or initiative and it would be the job of the institution to provide them. This should be subject to a new very limited set of exceptions - excluding the "space to think" and the right of third countries to veto disclosure.
It should also have a meaningful "public interest" test. To argue, as the Council and Commission do, that for momentous decisions such as the finger-printing of everyone in the EU (biometric passports and ID cards) and the surveillance of all telecommunications, the "public interest" of disclosure never overrides their "space to think" has no place in a democratic Europe.
A Regulation on FOI for the EU institutions should be accompanied by a Directive covering the member states, the majority of whom do not have national rules that come close to the standards advocated internationally by experts.
See also: The right to know or the right to try and find out? The need for an EU freedom of information law, by Ben Hayes (pdf)
This article first appeared in Statewatch bulletin, vol 15 no 5.
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