EU: Secrecy report "secret"then released (feature)
01 September 1996
A report prepared by the Secretary General of the European Council on the working of the Code of access to document was suppressed for three months because some governments did thought it should be kept secret. Under the Code of access, adopted in December 1993, Council officials were asked to prepare a report on the operation of the Code in 1994 and 1995. This was completed in July but the document was not released until the end of October.
The Report, prepared by the Council's General Secretariat, broadly considers the Council's policy of openness is working well - except for the challenges in the European Court of Justice by John Carvel (the Guardian), the Netherlands government, and the Swedish Journalists Union and:
"a single applicant [who] submitted 14 requests involving more than 150 documents, i.e: more than one third of all the documents requested by all applicants." (emphasis in original)
The General Secretariat's report proposes strong counter-measures to combat this unnamed applicant - who is in fact Tony Bunyan, Statewatch's Editor. The Council's report says:
"applicants are not required to give reasons for the interest they take in the Council's proceedings. Yet the very nature of certain applications sometimes elicits the thought that steps are being taken to test the system rather than exercise a legitimate option.
It might therefore be worth considering whether a provision should be made for access to documents which are manifestly excessive or involve disproportionate costs to be refused, where appropriate, after examination of the reasons for the applicant's interest."
When the European Voice published the Council's views on Statewatch's applications for documents Steve Peers, Director of the Centre for European Commercial Law at Essex University wrote to the paper as follows:
"All of the information Mr Bunyan has obtained from the Council has been excerpted and discussed in Statewatch bulletin and in other publications, providing an in-depth account of Council plans to curtail Union citizens' rights and liberties under the third pillar of the Union. Statewatch is virtually the only source of detailed information on these discussions. Why should citizens only hear about these decisions after they have been taken? Your article appears to imply that the Council considers Mr Bunyan an illegitimate applicant, but it is hard to imagine a more legitimate one."
It appears that the European Commission also disagrees with the Council General Secretariat on this issue. The Commission, which also introduced a policy of providing documents at the same time as the Council was also obliged to produce a review of its operation in 1994 and 1995. The Commission is unequivocal on the question of access:
"Any person, regardless of status and without having to prove a particular interest, can make a request to have access to a Commission document."(italics added)
The Council's report
Over the two year period covered by the report a total of 142 applicants applied for access to a total of 443 documents. The report, in patronising terms, says the Code of access is "little used or unused in some Member States, nor is it widely used in sectors other than journalism, the law and higher education".
Access was granted to 222 (58.7%) of the 378 which related to the Council's work (65 were excluded because they did not). 185 documents were sent in response to the first request by an applicant and a further 37 on appeal. There were 16 "confirmatory applications" (appeals) and in 6 cases access was granted to more or all documents. The main grounds for refusing access to 156 documents was "protection of the confidentiality of the Council's proceedings" (44%) - a euphemism for refusing to reveal any report which contains the dissenting view of any member government. The "protection of public interest (public security, international relations).." accounted for 18%.
The report - setting t