28 March 2012
The US government has written to the Council of the European Union asking it to agree that all the documents regarding the negotiations leading to the controversial new EU-US PNR (passenger name record, signed on 23 July 2007) agreement be kept secret:
"for at least ten years after the entry into force of the agreements"
This was just seven days after the agreement was signed.
Under the agreement personal details of every passenger going to the USA are accessed by US agencies to check against "watchlists". The 34 categories of data in the old agreement (in 2004) have been collapsed into 19 categories including "open fields", a plethora of US agencies are able to get the data and further process it (add new information) and this can then be passed on to third countries. The European Parliament and the EU's data protection authorities are highly critical of the agreement and the negotiations the subject of controversy (see below).
The letter (dated 30 July 2007): EU doc no: 12307/07 from Mr Paul Rosenzweig, Acting Assistant Secretary for Policy at the US Department for Homeland Security, to the EU Council Presidency lays down the terms - after the event - concerning the handling of all documents (including e-mails) in the negotiations and requests:
"confirmation of the following procedures"
Point 1 says that:
"The negotiations and the negotiating documents are to be held in confidence"
"Negotiating documents" are to include any documents "passed between" the EU and the USA and any "internal" documents (ie: in the Council or Commission) on the negotiations: "such as notes of meetings or strategies".
Everyone handling the documents is to be "alerted" that they cannot "share" them with anyone "not authorised to see them" and:
"These documents will be held in confidence for at least ten years after the entry into force of the agreements"
Under Point 4 the US side intends to enforce its demands by marking all the documents with:
"Foreign Government Information - Modified Handling Authorized"
The letter ends with:
"We look forward to your confirmation of our mutual understanding"
A Note from the Council Presidency (dated 31 August 2007): EU doc no: 12305/07 sets out the procedure for handling the response to the US letter. It asks COREPER (the committee of high-level representatives of each government based in Brussels) to invite the Council to agree the text of a reply.
The draft reply is set out in EU doc no: 12309/07 This says that:
"The European Union shares your understanding regarding the confidentiality of the negotiation process"
In direct response to the US demand the letter says:
"Article 4, paragraph 1(a), third indent of the Regulation [1049/2001] obliges the institutions to refuse public access to a document where disclosure would undermine the protection of the public interest as regards international relations."
While any request for access to a document:
"must be examined and replied to on a case-by-case basis.. Obviously, such a request will always be evaluated in good faith, keeping in mind the US expectations regarding confidentiality of negotiation documents, as expressed in your letter of 30 July 2007, and with due regard for the applicable EU legislation."
In other words, people can apply for these documents and the request will be examined "with due regard for the applicable EU legislation" in the context of "US expectations".
Article 4.4 of the Regulation deals expressly with access to documents from third parties (ie: non-EU states like the USA). This says that the institution (ie: the Council) shall:
"consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed"
The draft Council response makes no reference to Article 4.4 as it has already decided that Article 4.1.a applies granting a general exception for negotiating documents with the USA.
How the EU intends to effect this commitment to refuse access on the grounds of "the public interest as regard international relations" is not clear. Already the Council's own public register of documents gives access many full-text of documents falling under this so-called confidentiality rule, see for example: EU doc no: 13738/06: A letter from the US Department of Homeland Security regarding the negotiations of a new agreement in October 2006 - is this going to be removed?
US access to PNR
The EU-US PNR agreement has been the subject of huge controversy and concern and still is. The European Parliament: Resolution on the new EU-USA PNR agreement: "substantially flawed"; European Data Protection Supervisor: Hustinx letter, 27 June 2007: full-text; UK: House of Lords EU Committee report: The EU/US Passenger Name Record (PNR) Agreement For full background and documentation see: Statewatch's Observatory on EU-US PNR
The latest critical report is from the EU's Article 29 Data Protection Working Party report: Opinion 5/2007 on the follow-up agreement (17 August 2007) which concludes that:
"1. In general, the safeguards provided for under the previous agreement have been markedly weakened. 2. The new agreement leaves open serious questions and shortcomings, and contains too many emergency exceptions."
Tony Bunyan, Statewatch editor, comments:
"Yet again we see the USA telling the EU what to do. In this case how it should operate the EU Regulation on access to documents. How can any request for PNR documents be fairly considered under EU law when it has already agreed to exercise a US veto? Are we going to see documents for all future EU-US agreements kept secret too?
US access to PNR data and its further processing is an issue of substantial public interest which directly effects the rights and privacy of EU citizens and therefore all the documentation should be in the public domain for parliaments and people to see and discuss.
It is a quite outrageous request and it is even more outrageous that the EU is going to agree to it."
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