European Ombudsman
European Network of Ombudsmen
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Brussels, Belgium, 29 September 2010
President, Honourable Members, thank you for inviting me to speak today on the subject of the Reform of Regulation 1049/2001 on public access to documents.
This Committee, the LIBE Committee, and indeed Parliament as a whole, have all invested a great deal of time and effort in this subject. That work is, in my view fully justified, given that the adoption of Regulation 1049 in 2001 was an important milestone not only for transparency, but also for European citizenship.
It is therefore essential that any revision of Regulation 1049/2001 should be a step forwards for transparency and for European citizenship, not a step backwards.
In my view, therefore, any reform of the Regulation should be guided by what I believe was its original objective; that is to say, facilitating the widest possible access to documents held by the Institutions, so as to enable citizens to scrutinise and participate in processes of governance at the Union level.
Honourable Members, the Commission presented its proposal to revise Regulation 1049/2001 in 2008. Since then, there have been two important developments.
The first, of course, is the entry into force of the Treaty of Lisbon. The Treaty requires all the Union institutions “to conduct their work as openly as possible, in order to promote good governance and ensure the participation of civil society”. The Treaty also extends the scope of the right of public access to include documents held by the European Council.
The second development is the recent judgment of the Court of Justice in the Bavarian Lager case, which concerned access to the minutes of a meeting held between the Commission and industry representatives.
The judgment deals with the relationship between the existing Regulation 1049/2001 and Regulation 45/2001 on data protection. It makes clear that, under the law as it stands, public access to personal data cannot be given without consent, unless the applicant demonstrates the necessity of transferring the personal data.
The European Data Protection Supervisor, Mr Hustinx, has said that: “the judgment of the Court confirms the importance of the review [by which he means the legislative review] of how to reconcile two fundamental rights: access to documents and data protection in the light of the Lisbon Treaty.” I agree fully with that assessment.
Given that improving transparency is a fundamental aim of the Lisbon Treaty reforms, it is important to emphasise that the judgment in Bavarian Lager is not a licence for institutions to hold secret meetings. The fundamental right to data protection can, and should, be taken into account in the organisation of meetings, so that the transparency needed to ensure public confidence in the institutions can be maintained.
It would be appropriate in many cases, for example, for the invitation to a meeting to be made conditional upon prior consent to the record of the meeting containing participants’ names.
This is but one example of how being proactive can help ensure the good administration of transparency.
Honourable members, let me develop this theme, which I believe should play an important part in the revision of Regulation 1049/2001.
It is tempting to think that institutions should administer the right of access to documents by awaiting applications for access and reacting to them. In my view, that is only half the story.
I believe that good administration of the right of public access not only requires the institutions to react correctly to applications, but also to be proactive. Indeed, relying exclusively on reacting to requests when they are made can lead to maladministration.
Good administration is, of course, a fundamental right and following the entry into force of the Treaty of Lisbon, it is now legally binding.
Article 41 of the Charter of Fundamental Rights says that: “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.”
I regret that my experience as Ombudsman is that the Commission, in particular, too often fails to deal with public access requests within a reasonable time, because it does not respect the deadlines established by Regulation 1049/2001.
Even worse is the Commission’s performance when citizens complain to the Ombudsman in access to documents cases.
At the request of your Rapporteur on the Ombudsman’s Annual Report, Ms Nedelcheva, we carried out an analysis earlier this year of the extent to which the Commission has respected the Ombudsman’s deadlines in access to documents cases.
Out of 22 cases dealt with by my office in 2009, the Commission respected the original deadline for reply in only 4. In the majority of cases (14 out of the 22) there was a delay of more than 30 days. In 6 cases, the delay was 80 days or more.
Furthermore, as you know, I had to submit to you a Special Report earlier this year on a particularly egregious case of delays in an access to documents case. I am grateful for the work of your Rapporteur, Ms Paliadeli, and for the support of this Committee in adopting her Report earlier today.
To sum up, the Commission, in incurring delays when responding to access to documents requests or when providing its responses in cases of complaints to the Ombudsman about access to documents, is creating a systemic problem. The Commission is depriving citizens of their fundamental right to have their affairs handled within a reasonable time.
A systemic problem requires a systemic solution, and it is for this reason that I consider that one effective way of tacking it would be the appointment of information officers, by analogy with data protection officers.
Their role should be to secure citizens’ right of access to EU documents by encouraging the institutions to adopt a proactive approach, as well as by ensuring that they react correctly to requests for access.
In practice, that would mean providing advice and training so as to ensure that the right of public access is taken into account at the stage when documents are being drafted.
At the moment, when dealing with complaints about refusal to disclose a document, I often have the impression that no-one thought about public access when the document in question was drafted. Or if they did think about it, they did so defensively, with a view to obstructing, not facilitating, public access.
In fact, it often seems that, in the Commission, the first time that the question of public access is considered by anyone who knows about the subject ís at the stage of the confirmatory application, when the matter goes to the Secretary General.
In my view, it would be good administration for all documents to be drafted with a view to ensuring that citizens, organisations and businesses can have the widest possible access to them. If the document must contain confidential information, then the document should, as far as possible, be drafted so as to facilitate partial disclosure. That can be done by putting the confidential material in a separate section of the document, preceded by a non-confidential explanation of why the material is exempt from disclosure and, wherever possible, a non-confidential summary.
If documents were drafted in this way, less time would be needed to deal with applications, fewer confirmatory applications would be needed and the Commission would be better able to respect the deadlines in the Regulation.
Before concluding, let me mention one additional aspect of a proactive approach to the good administration of transparency.
What is the most effective and efficient system for dealing with applications for access? The answer is to make it unnecessary even to make an application, by providing a useful, online register of documents and ensuring that the registered document is readily available through a link. Like that, the citizen can obtain the document directly, without having to make an application for access.
The EU institutions already make a vast number of documents accessible on-line. But mere quantity is not enough. The good administration of access to documents involves making available the documents that people actually want and organising their availability in such a way that they can be found easily.
A user-friendly register of documents would be searchable and structured in such a way that it helps the user to understand the functioning of the institution.
That means that the register should be based upon an analysis of the workflow in the institution and should be adapted quickly to take account of new and changing activities. Documents should be added to it promptly.
The creation and maintenance of such a register is an essential aspect of engagement with citizens. Such engagement should be seen as part of the core business of every institution in order to fulfil the Union’s promises of transparency, participation and good administration. The aim should be to ensure that, unless there are valid reasons to restrict access, people can immediately obtain the documents they need through the register without having had to submit an application.
In conclusion, Madam Chairman, I hope that this Committee will encourage Parliament to seize the opportunity of the Revision of Regulation 1049/2001 to hep the institutions, and above all the Commission, to put the right to good administration into practice as regards access to documents.
Thank you for your attention.
