1 Democracy and information

According to Article 6 of the Treaty on European Union, democracy is one of the founding principles of the European Union. A precondition of effective democracy is that citizens should have sufficient information available to them about what the public authorities have done, what they are doing and what they are planning to do. Without adequate information, citizens cannot evaluate the performance of those for whom they have voted and for whom they may be asked to vote again. Nor can citizens participate effectively in the on-going public debate between elections, which is part of a healthy democracy.

How can citizens obtain the information that they need and want? There are three main ways:

First, public authorities publish certain information, either because of a legal duty to do so, or because they choose to do so. Governments of many Member States of the European Union understand the importance of effective communication in promoting public confidence. So do the Union’s institutions. They publish large amounts of information, making increasing use of the internet to do so.

Second, citizens may take the initiative to ask for information, in particular documents, which have not been published. The possibility for any citizen to have access on request to official documents that have not already been published is an essential right of citizenship. It enables citizens to scrutinise the activities of public authorities and to make an independent evaluation of them. The Community’s Court of First Instance put this point as follows in relation to the Community institutions:

…the transparency called for by European Councils, in order to allow the public ‘the widest possible access to documents’ … is essential in order to enable citizens to carry out genuine and efficient monitoring of the exercise of the powers vested in the Community institutions...

Here in Sweden the same idea has been embodied in law since the 18th Century: free access to official documents promotes the free interchange of opinion and the enlightenment of the public.

Third, the press should also play a vital role in informing public opinion. This role is recognised by the case-law of the European Court of Human Rights under Article 10 of the Convention, which guarantees the freedom of expression. The protection afforded to the press under Article 10 is especially strong, because of its role in imparting information and ideas to the public and the right of the public to receive them. There are also Council of Europe recommendations concerning public access to documents and a working group of specialists on access to official information is currently drafting a further instrument.

It should be pointed out that, if democracy is to flourish, the press cannot rely just on official publications and press releases. Nor is it healthy for the press to rely too much on leaks. For the journalist involved, leaking sometimes provides an incentive to treat his or her source in a good way, to write something positive. Otherwise next time there may be no leak. Although less glamorous, it is better for journalists to find and check information through using the citizen’s right of access to official documents.

The subject of this present conference is official documents and archives. In states without experience of an open public administration, a rigid distinction is often drawn between documents that are in current use and those which have been archived as of purely historical interest. In some states, and also in the European Union, a legal framework for archives was established before the right of public access to documents was acknowledged. To me, there seems to be no fundamental distinction between access to documents in use and access to historical archives. In both cases, it is essential that there should be registers, so that the administration can itself operate efficiently and to facilitate public access. Furthermore, the basic principle of openness applies in both cases. However, the proportion of documents which should be kept secret is likely to diminish as they become older.

2 The right of access to documents held by the institutions of the European Union

The Maastricht Treaty and Declaration 17

The Maastricht Treaty on European Union was signed in 1992 and came into force in November 1993. The inter-governmental conference adopted the following declaration, attached to the EC Treaty as Declaration 17:

"The conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions."

The Council and Commission rules on access to documents

The Commission carried out a survey of national laws and practices and in 1993, the Council and the Commission jointly adopted a Code of Conduct on public access to documents. The Code was implemented through decisions made separately by the two institutions: Council Decision 93/731 and Commission Decision 94/90.

The Code of Conduct provides for a two-stage procedure of initial application followed by a confirmatory application in case of a refusal to grant access. If a confirmatory application is rejected, the applicant must be informed of the possibility of redress through judicial proceedings under Article 230 EC and through complaint to the European Ombudsman under Article 195 EC.

The control which the Community Courts have exercised over the interpretation and application of the Council and Commission rules has been of immense importance in clarifying and sustaining the citizens' right of access to documents. The case law of the courts establishes that the Council and Commission Decisions contain enforceable rights for individuals. Furthermore, exceptions to the general rule of public access should be construed and applied strictly, in a manner which does not defeat the application of the general rule. Most of the exceptions are mandatory, which means that the institution must refuse access to a document which comes within one of the exceptions, if the relevant circumstances are shown to exist. However, the exception which allows an institution to refuse access in order to protect the confidentiality of its proceedings is discretionary.

As regards the scope of the exceptions, the Court has held that the Commission decision also covers documents of so-called "comitology" committees. Furthermore, in dealing with an application for access to a document which contains information covered by one or more exceptions, the institutions must examine whether partial access should be granted to information which is not so covered. The Court has also rejected the idea that documents linked to infringement procedures are automatically covered by the exception relating to protection of the public interest and has held that the exception for court proceedings applies only to documents specifically drawn up for the purposes of the proceedings.

As regards reasoning for the application of the mandatory exceptions, the institution must consider in respect of each requested document whether, in the light of the information available to it, disclosure is in fact likely to undermine one of the protected facets of public interest. As regards the discretionary exception, the institution must strike a genuine balance between the interest of the citizen in obtaining access to the documents and any interest of its own in maintaining the confidentiality of its deliberations.

The Ombudsman’s decisions on complaints against refusals of access to documents show a similar pattern. For example, the Council contested the Ombudsman’s competence to deal with a series of complaints from the British journalist Tony Bunyan, on behalf of Statewatch, concerning documents relating to co-operation in justice and home affairs (the "third pillar"). The Ombudsman considered that the correct interpretation and application of Decision 93/731 is a matter of Community law and not a third pillar matter, even if the documents in question concern actions under the third pillar.

The Ombudsman also concluded that the term "repeat applications" in the Code of Conduct and Decision 93/731 does not include applications for different documents; and that the discretion to seek a fair solution in the case of applications for very large documents does not apply to applications for a large number of documents. Furthermore, the Ombudsman did not consider a mere reference to "the fight against organised crime" to be an adequate reason for applying a mandatory exception. Nor was it sufficient merely to state that a document contains "detailed national positions" when applying the exception for maintaining the confidentiality of the institution’s deliberations.

The Ombudsman’s decisions are published on the website, in English and in the language of the complaint if different (http://www.ombudsman.europa.eu Click on decisions index - search by field of law - public access).

Other institutions and bodies

The Council and Commission Decisions adopting the joint Code of Conduct apply only to requests for documents addressed to those two institutions. They do not apply to other institution and bodies.

In 1996, the European Ombudsman began an own-initiative inquiry into the possible adoption by other Community institutions and bodies of rules on public access to documents. The inquiry was mainly based on what the Court of Justice said in a case brought by the Netherlands against the Council Decision:

So long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organization, which authorizes them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.

The Ombudsman’s own-initiative inquiry led to a draft recommendation that the Community institutions and bodies should follow the example of the Council and Commission by adopting and publishing rules on access to documents. A follow-up inquiry was launched in 1999, addressed to bodies which had been established, or become operational, after the closure of the original inquiry.

The outcome of these own-initiative inquiries is that almost all the Community institutions and bodies, including the European Parliament, the Court of Auditors, the European Investment Bank and the European Central Bank have adopted and published their own rules on public access to documents, as a matter of good administration. Europol accepted a draft recommendation from the Ombudsman by agreeing to apply the Council’s rules.

The Council and Commission Decisions, as well as the rules adopted by other Community institutions and bodies, have two main limitations. First, they provide for access only to documents which the institution or body has itself drawn up. Incoming documents are excluded, a restriction which is usually referred to as the "authorship rule". The second limitation is that there is no obligation to maintain a register of documents. The Council, however, established a public register of its documents following a draft recommendation from the European Ombudsman. The Commission has agreed to examine the possibility of a public register of Commission documents as part of its implementation of Article 255 EC, added by the Treaty of Amsterdam.

The Treaty of Amsterdam and subsequent developments

The Treaty of Amsterdam added to the Union Treaty the principle that decisions should be taken as "openly as possible. " The Amsterdam Treaty also added a new Article 255 to the EC Treaty on the right of access to documents of the European Parliament, Council and Commission:

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents

In January 2000, the Commission proposed a Regulation under Article 255 (2). On the positive side, the proposal would abolish the authorship rule, although third parties could insist on confidentiality for documents which they send to an institution. There is also a rather weak provision requiring registers to be maintained. However, the proposal was significantly more restrictive than the 1993 Code of Conduct, since it contains new exceptions and a general exclusion of "texts for internal use".

Whilst the Council and Parliament were examining the Commission’s proposal, the Council unilaterally amended its Decision 93/731. It claimed this step was necessary in the context of moves to strengthen European security and defence policy. The change which attracted most attention was the addition of two new categories of mandatory public interest exception: "the security and defence of the Union or one of its Member States" and "military or non-military crisis management". However, the revised Council Decision also excludes from the scope of public access any document which has been classified in one of the top three categories of an amended classification system. This deprives the citizen of the right to receive a reasoned decision, since no reasons are given when a document is classified. Furthermore, the citizen is also effectively deprived of the possibility of redress against a refusal of access to such a document. The legality of the Council’s action is being contested by both the Netherlands and the European Parliament.

In November 2000, the European Parliament adopted amendments to the draft Regulation, with the support of the main political groups and following a public hearing. Parliament’s text is effectively a new start, more systematic and comprehensive than the Commission proposal. Parliament referred the issue back to Committee to enable further discussions to take place with the Commission and Council, with a view to securing a compromise on the amendments. The so-called "trilogue" negotiations between Parliament, Council and Commission have yet to produce any concrete results. It seems possible that no compromise will be reached, mainly because of disagreements over the scope of exceptions to the right of access.

3 Limits on the right of access to documents

There is a common misconception that the Nordic view of transparency is that every document is public. This is not so. In every democratic society, some information must remain secret. Obvious examples are certain information relating to security and defence matters and commercially confidential information. However, the list of exceptions should be as short, precise and easy to administer as possible.

Furthermore, in order to function effectively, every administration needs the possibility to carry out internal preparatory work before putting its policy proposals into the public domain, together with the information and reasoning on which they are based. One of the issues which has been much debated is the so-called "space to think". Openness does not mean that administrative work should be carried out entirely in public. In order to function effectively, every administration needs to carry out internal preparatory work before putting a matter into the public domain. It is important that those carrying out this preparatory work should have the possibility of an informal exchange of ideas and criticism.

However, once the organisation has had time to think, the document which contains the results of its thinking should be included in a public register. The key moment is when the document is either formally adopted in some way, or when it is transmitted outside the boundaries of the organisational space in which it has been drafted.

Therefore, it is necessary to decide what counts as a separate space. In the case of the Commission, it seems natural to regard at least the different Directorates General as separate for this purpose, because they are similar to the different ministries in a national system of government. Messages, drafts and discussion papers which are kept inside should not all have to be registered. However, when a document is sent outside, it should always be registered. Moreover, the documents on which a published decision or proposal is based should be made public, at the same time as the decision or proposal itself. For example, if a legislative proposal or a decision relies on an opinion given by a particular service, the opinion should be made publicly available when the proposal or decision is published. Otherwise, the proposal or decision cannot be properly evaluated.

Privacy and data protection

One of the exceptions which exists in all systems of public access to documents is for the protection of individual privacy. I would like to issue a word of warning, however, about a new danger to openness in this respect. This danger comes from an over-zealous interpretation of the rules on data protection. The purpose of these rules is to protect individual privacy as a fundamental right. The idea is not to keep all personal data secret, nor to provide a handy source of complex legal arguments for those seeking new weapons with which to defend a culture of administrative secrecy.

The European Community adopted a Directive on data protection in 1995. The Directive also applies to the Community institutions and bodies by virtue of Article 286 EC. The question of the purposes and scope of the Directive arose in the European Ombudsman’s handling of a complaint about access to information. Briefly, the complainant had previously complained to the Commission in its role as guardian of the Treaty about a British law which prevented him from importing German beer into the UK. The Commission investigated and closed the case after the UK authorities amended their law. The complainant then wanted to know who had made submissions to the Commission about the matter and who had attended a meeting organised by the Commission to discuss the case, a meeting which he had not been allowed to attend. The Commission claims that the Data Protection Directive requires it to keep the names secret unless the persons concerned agree to their identities being revealed. The Ombudsman rejects this argument for two main reasons: firstly, the Directive should be interpreted so as to support the openness of EU decision-making. Secondly, the Directive is designed to protect fundamental rights. Providing information to an administrative body in secret is not a fundamental right. Since the Commission maintained its refusal, the Ombudsman has submitted a special report on the matter to the European Parliament.

The danger of an over-zealous approach to data protection is also illustrated by two national cases, one from the United Kingdom and another from Sweden. In the British case, the Ministry of Agriculture fined a farmer for cultivating fields which had been set aside. The farmer did not know that the fields had been set aside. He did not know, because when he asked the Ministry for this information from its database, they refused because the information had been supplied by the previous owner. It is beyond my comprehension how anyone could think that information about which fields have been set aside could be "personal data". Fortunately, the Court of Justice was able to put the matter right. The Court pointed out that there was nothing to indicate that the disclosure of the data requested was liable to affect adversely any interest whatsoever of the provider of the data, or his fundamental rights and freedoms.

The Swedish case involved a lady who set up a website for her parish. On this website she made short presentations of the parish’s personnel. One presentation included the information that the person concerned had fallen form a roof and broken her foot. For putting this information on the website the lady was prosecuted. Not only that, she was convicted and fined 4000 SEK. The court found that had acted in breach of Personuppgiftslagen "PuL", through which Sweden implemented Directive 95/46/EC on data protection. It found first that she had processed data relating to a broken foot which is sensitive information without the consent of that person. She had therefore breached § 13 PuL. Second, it found that she had not notified the Data Inspection Authority which the court found necessary and thereby breached § 36 PuL. Third, the court found that she had breached § 33 PuL since the information had been transferred to a third country.

I do not believe that this can be the law, in Sweden or in any other democratic country. The case is now before the Court of Justice for a preliminary ruling on the meaning of Directive 95/46/EC and its relationship to the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. It is interesting to note that in the Court’s public register of its cases, which is available on the internet, the name of the lady who was convicted and fined in Sweden is given in full.

4 Conclusion

There will always be disputes about the limits of the citizen’s right of access to documents. In a democracy governed by the rule of law, the citizen is entitled to expect such disputes to be decided by an independent authority.

I have already mentioned the important case-law of the Community courts under the existing Council and Commission decisions on access to documents, as well as the contribution which the European Ombudsman has made in this respect. My experience as Ombudsman since 1995 is that there has been a steady improvement in the way that the Council and the Commission have administered their rules. They have learnt how to deal with applications more effectively and more promptly and the proportion of successful applications has increased. However, I have found it necessary so far this year to address two draft recommendations each to the Council and Commission in access to documents cases.

According to the Treaty, the deadline for adopting new rules under Article 255 (2) is 1 May 2001. I believe that it is still possible for a good outcome to be achieved by that date. By a good outcome I mean one that, from the standpoint of the citizen, is a step forward and not a step backward from the existing rules.

Whether we stay with the existing rules or have new ones, those responsible for the organisation of registers, archives and other records perform a task which is vital for the efficiency as well as the openness of administration. I wish you every success with your important work in the future.

 

Jacob Söderman