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• Access to documents "could fuel public discussion" by Tony Bunyan

Access to documents "could fuel public discussion" by Tony Bunyan

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07 February 2001

When Statewatch applied for a document setting out far-reaching changes to the 1993 code of public access to EU documents in July (the "Solana Decision") the Council said its release "could fuel public discussion on the subject". It is hard to think of a more undemocratic argument. Access documents is fundamental to a healthy, critical and thriving democracy, it enables civil society to understand, analyse and participate in discussion. Access to documents does indeed "fuel public discussion" and so it should.

Civil society should be able to get access to all documents, including those from non-EU governments and international organisations (including ad-hoc, and often secret, intergovernmental meetings of officials and officers), subject only to narrow and specific exceptions. People have a right to know all the views considered and rejected, all the influences brought to bear, on policymaking. They have a right to see these documents as they are produced or received - not after a new policy is adopted, but before.

Similarly there has to be access to all documents concerning the implementation of the policies adopted - reports, mission reports, surveys and their results, and studies - which flow from decision-making (again as they are produced).

This kind of access would allow EU citizens and those outside the EU who are affected by its policies and practices - refugees, asylum-seekers and third world countries - to take part in decision-making and to monitor ongoing practices.

Without documents and debate democracy is devalued and diminished and finally it withers away leaving democracy without content, without meaning.

"space to think" also means space to act

The EU Council (governments), the European Commission and the European Parliament are currently discussing a new code of public access to EU documents. This is meant to "enshrine" the commitment in the Amsterdam Treaty (Article 255) to ensure openness is truly put into practice, but will it?

In its proposed new code of access to EU documents the Commission wants to create the so-called "space to think" for officials (public servants) and permanently deny access to innumerable documents. The "space to think" for officials is apparently more important than the peoples' right to know.

But there is another problem with the "space to think" for officials, it would also give them the "space to act". Many of the documents hidden by this rule would concern the implementation of measures - the practice that flows from the policies. Officials would be unaccountable for their actions. Democracy is not just about information and participation in policymaking, it is crucially about the ways policies are put into practice. For example, police powers over the citizen are judged not just by formal laws but by how they treat people on the streets and in detention. In policing terminology the "space to act" is called "self-regulation" where officers are given so much discretion that they are "free" from direct lines of accountability for their actions, often with disastrous results.

We are seeing an increasing number of "gaps" in EU accountability even at the formal level. Since 1994 there have been annual reports on the work of the Europol Drugs Unit but now that Europol is a fully-fledged operational agency there is a "public" glossy version heavy on "spin" and low on content. Since 1995 there have been annual reports on the implementation of the Schengen Convention (up to 1998). Now we are being told that because the Amsterdam Treaty split Schengen between the "first" (TEC) and "third" (TEU) pillars there are to be no annual reports in future. Who made this decision, officials or governments?

Thus we will no longer know how many checks have been carried out on the Schengen Information System (SIS) database to exclude people from entering the EU or how many cross-border surveillance operations have been requested. And all this happens when the Council is discussing major extensions in the data to be held on the SIS.

The huge gap in knowledge which would result from the "space to think/act" is compounded by the proposal that non-EU states, agencies and international organisations, like the USA or NATO, would have the right to veto access to documents for EU citizens. At a time when ad-hoc, secret, international working parties abound in the field of "law enforcement" and globalisation marches on unfettered the idea that whole areas of policymaking and practice should be removed from public view should be abhorrent to any democrat.

The demand for the "space to think" and the "space to act" must not be allowed to contaminate the code of access to documents. It is only legislatures which have the right to ask for the space to think, not the executive and its officials. The people have "freedoms" and "rights", government and officials have "responsibilities" and "duties".

It is simple, democracy needs a culture of accountability.

Undermining the principle of access to all documents

The principle of freedom of information (access to documents) is in the first Article of the current code of access. Citizens have the right to request any document subject only to very specific and narrow exceptions.

At the end of July when Brussels was empty for the holiday season the Council adopted (by 12 votes to 3) the "Solana Decision" to satisfy NATO. The Decision permanently excludes from public access whole categories of documents covering foreign policy, military and "non-military crisis management" - and any other document whether classified or not which refers to these issues (the Commission is in negotiations with NATO to reach a similar agreement). Nor does it make any distinction between policy-making (which should be in the public domain) and operational details. It is not possible to equate this Decision by the Council to change the 1993 Decision taken without consulting anyone, certainly not parliaments or people-with any conceivable understanding of democratic decision-making. It was arrogant and contemptuous of democratic standards.

When Statewatch was told that access to a document "could fuel public discussion" we were also told that access could offend "the Council's partners". We cannot have a situation where non-EU states (eg: USA) or international organisations (eg: NATO) have a veto over the EU citizen's right of access to documents. What is the meaning of a defence and security policy, what is it defending and securing if it requires the denial of citizens' rights and is adopted in a way that a totalitarian state would be proud of?

There is a public register but none of the documents excluded under the "solana Decision" will be included, nor will the thousands of documents produced every year which are called "SN" (sans numero) documents (even though they are numbered).

On top of all this the Council and Commission want to have wide powers of discretion over what can be released. If a diligent researcher asks for too many documents they can be refused or sent only some of them. If they ask for documents on their special interest/expertise (environment, policing, immigration, trade and aid) on a regular basis they can also be refused access.

Will the new code be better that the existing code and practice? Will the new code, as intended by the Amsterdam Treaty commitment, "enshrine" the citizens' right of access to documents? The answer from the Commission and Council is a clear no. Public knowledge is to be sanitised and controlled.

EU governments do not seemed to have learnt the lessons of just a short time ago, that freedom of information is the best defence against corruption, fraud and the abuse of power. While the Netherlands, Sweden, Denmark and Finland are trying to ensure the commitment in the Amsterdam Treaty is met, France and Germany are pushing strongly for changes which will mean even less access to documents than at present.

Is there a future for democracy in the EU?

As long as I can remember there has been a "democratic deficit" in the EU and there still is even as the EU prepares for enlargement.

The "democratic deficit" is not just about the powers of parliaments - national or European - it is much deeper than that. It is about changing the democratic culture into a culture of openness, of an informed public and responsible and accountable institutions.

When the Commission put out the draft for the new code of access many suspected the "dinosaurs" would come out of hiding, that officials and entrenched interests would try and use the commitment in Article 255 of the Amsterdam Treaty not to "enshrine" the right of public access but to limit and shackle it - to end up not with a code of access for citizens but "A Regulation for the Protection of the Efficient Workings of the Institutions".

The resolution of this issue will be a defining moment for democracy in the EU. The argument is really very simple:

In a democratic system, it should be quite easy to understand - citizens have a right to know how and why decisions are made and implemented. Without freedom of information, access to documents, there is no accountability and without accountability there is no democracy.