09 February 2001
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The secretive negotiations among EU Institutions on the draft regulation on access to documents have reached a point where the question must be asked: Are citizens better off with the current voluntary codes or should there be a right of access enshrined in legislation on the basis of article 255 of the Amsterdam Treaty?
Tony Venables, ECAS director said today (9 February): "So far the European Parliament and the Swedish Presidency have made no impact on the hardline compromise proposed by the previous Presidency in December 2000. The combination of mandatory and optional exceptions will lead to a massive reduction of successful applications and appeals. The dinosaurs responsible for the downfall of the last Commission are back with a vengeance. Until there is a real change in administrative culture and a majority in favour of transparency, it might be a mistake to press for a legislative solution. The situation is so bad that NGOs have to consider a campaign against the legislation and for a blocking minority in the Council".
The Council's rhetoric is one thing "openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system." A majority in the Institution does not however believe in this "win-win" situation, and has sought the maximum protection against access.
Access to any preparatory documentation can be refused.
The current codes cover all documents, but in the Presidency draft "documents" means "excluding those for internal use as part of preliminary consultations and deliberations within the Institutions such as discussion documents, unfinished documents or draft documents and documents whose content reflects personal opinions". All three Institutions want to protect what is called "the space to think", and have failed to limit this notion in a way which does not conflict directly with the right of citizens to participate more closely in the decision-making process. If this was not protection enough, the Presidency compromise wishes to keep the general option in the current codes against disclosure where a decision has not yet been taken, if this "could seriously undermine the Institutions' decision-making process". It has taken ECAS since June 2000 and two appeals to obtain any preparatory Council text on the draft regulation on access to documents, despite the Council's claim that it wants to be particularly open in the legislative area. This is illustrative of what the draft for the regulation could mean in practice.
Practically any documents can be refused on grounds of content
Again a double system of protection proposed. In its compromise, the Council Presidency triples the number of exemptions in the codes, and makes them mandatory "the Institutions shall refuse". It had been expected that the exemptions would be more narrowly defined, but this is not so. They include such catch-all terms as "international relations", "infringement proceedings including the preparatory stage thereof". Only in the cases of protection of privacy and commercial interests does the drafting appear acceptable. ECAS believes that not only should "shall" be replaced by "may" over a shorter, more precise list, but there should be a presumption in favour of disclosure where the public interest in health, safety and environmental protection are involved.
If these exemptions were not protection enough, the Council wants apparently to introduce a category of "sensitive documents" to enjoy a class exception not only for "top secret" but also "secret" and even "confidential" documents and the appeals to be handled only by people authorised to see such documents, thus undermining any guarantee of impartiality or external control for the applicant. It is unfortunate that the European Parliament has fallen into this the trap by demanding a classification system.
It will be argued that the legislation is an improvement because it covers unlike the codes, documents from third parties. But, this claim is partially undermined by the fact that member states could veto the release of documents, and access to sensitive documents could be refused if the author has not given consent. The draft would even make it impossible for citizens to make use of more advanced freedom of information rules to demand documents in their own country: such requests would now have to be submitted to the EU Institutions.
The choice should be clear - either a major rethink of the whole legislative approach or keep the existing codes until the administrative culture has changed.
Note to the editors: All documents are on the following website: http://www.statewatch.org. See ECAS website: www.ecas.org for details of a major event on 21 March on "European governance".
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