Dear Mr P.,
On 4 July 1997 you made a complaint to the European Ombudsman concerning the Council of Ministers. You alleged several instances of maladministration in the way that the Council had applied its Decision 93/731 on public access to documents.
On 30 July 1997 I forwarded the complaint to the Secretariat of the Council of Ministers. The Council sent its opinion on 25 November 1997 and I forwarded it to you with an invitation to make observations, if you so wished. On 24 February 1998, I received your observations on the Council's opinion.
I am now writing to you to let you know the results of the inquiries that have been made.
I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

By letter of 19 February 1997 to the Council, the complainant requested copies of various agendas of Council committees and other documents. The Council rejected parts of the complainant's application, relying on the rules of its Decision 93/731 on public access to Council documents (1).
As concerns the agendas, the Council informed the complainant that it had decided to provide him with copies of agendas covering a period of six months instead of two and a half years as requested by the complainant. This decision was reached on the basis of Article 3 (2) of Decision 93/731 which provides that the Council shall find a "fair solution" to deal with repeat applications and/or those which relate to very large documents. The complainant contested the legality of that decision, arguing that Article 3 (2) could not apply to a large number of documents, but could only be applicable in respect of separate documents which were 'large'; according to the complainant, none of the separate agendas would be longer than about three pages.
As concerns the other documents, the Council refused access to the following ones:
- "Schoolchildren/5143", a document compiling Member States' replies to a questionnaire on the application of a Joint Action of 1994 on "travel facilities within the EU for schoolchildren who are third-country nationals";
- "CIREA/1452", a draft report with detailed information on CIREA's activities 1994-1996(2);
- "Asylum/8418", consisting of two documents containing detailed answers from Member States to a questionnaire on asylum principles and practices;
- "Racist/7141", a note on racist crimes from a Council working group on terrorism.
The Council gave the following reasoning for refusing access:
As concerns 'Schoolchildren/5143',

"Document 5143/1/97 is a note from the General Secretariat containing a compilation of replies of the Member States to a questionnaire on the implementation of the aforementioned Joint Action. This compilation has not yet been examined by the relevant Working Party, and the report mentioned in the Joint Action has not yet been drawn up.

Having balanced your interest in gaining access to the document against the interest of the Council in maintaining confidentiality of its deliberations, the Council has concluded that the latter interest outweighed the former in this particular case, in accordance with Article 4(2) of the Decision.

Indeed, disclosure of this document at this stage could hamper the scheduled discussions of the matter and could have negative effects on the functioning of the exchange of such information in the future."

As concerns 'CIREA/1452',

"Having balanced your interest in gaining access to this particular document against the interest of the Council in maintaining the confidentiality of its proceedings, the Council has concluded that the latter interest outweighed the former, in accordance with Article 4(2) of the Decision [93/731].

This document, which contains detailed information about the functioning of CIREA, has not yet been examined nor approved by the Council. The Council considers that disclosure of this document at this stage could hamper the planned discussions on this matter."

As concerns 'Asylum/8418' and 'Racism/7141', the Council stated that disclosure of the two documents would undermine the protection of public interest under Article 4 (1) of Decision 93/731.
The complainant considered the reasoning given by the Council to be inadequate.
Furthermore, as a separate allegation it was put forward that in reply to the initial application for documents, the Council failed to balance the interests of citizens in openness against the Council's interest in imposing confidentiality. The complainant submitted that under Decision 93/731 this balancing, which is required by the case law of the Community Courts, must take place in the reply to the initial application for access to documents as well as in the reply to the confirmatory application which may be submitted following an initial rejection.
Finally, the complainant put forward that the Council's failure to set up a document register amounted to maladministration. Although Decision 93/731 does not impose an obligation in this respect, the lack of a document register made it, in the complainant's opinion, exceptionally difficult for applicants to gain knowledge of which internal documents exist.

THE INQUIRY

The Council's opinion
Concerning Article 3(2) of Decision 93/731, the Council made the following remarks.
Article 3 (2) of Decision 93/731 is aimed at safeguarding efficiency in the Institution's administration in exceptional cases. In accordance with the general rules of legal interpretation, the Article must be interpreted in its context and in a way which gives it practical effect.
In this light, application of a fair solution within Article 3 (2) to deal with repeat applications cannot be confined to referring only to identical documents. The concept of 'repeat application' refers to, inter alia, cases in which a person regularly and systematically requests over a long period of time access to a large number - or even all - of the documents of the same type, not necessarily identical. In this context, the number of documents requested is one of the criteria to be taken into account.
In the context of the present case, it was thus relevant to note that the complainant had used a technique which consisted of initially requesting agendas for all the Council bodies dealing with certain matters and subsequently requesting all the documents included in those agendas. This technique had been applied by the complainant to obtain access to entire categories of documents concerning action taken by the Council, particularly under Title VI of the TEU, in respect of which categories he had not limited himself to a particular period or to certain subjects. Taking into consideration these previous requests, the Council had informed the complainant, when adopting the 'fair solution' here in question, that his application was formulated in a repetitive manner since it systematically referred to all agendas of several Working Parties over a long period of time.
As concerns the documents to which access was refused, the Council contested that the statements of reason quoted above were inadequate. However, as concerns the use made of Article 4(1), the Council stated that it had taken note of the arguments put forward by the complainant, and considered that it would have been more correct to apply the exception in Article 4(2) when refusing access to 'Asylum/8418' and 'Racism/7141'.
Concerning the alleged failure to balance the interests in its reply to the complainant's initial application, the Council stated that this requirement had in fact been observed. Furthermore, it considered that its replies to the complainant in this respect did make it clear that the relevant exceptions would be relied upon, and on what grounds. The Council conceded, though, that it had not explicitly stated that the balancing had been carried out. It would therefore in future cases make sure that the initial statements of grounds would state that the balancing of interests had in fact taken place.
Concerning the lack of a central document register of Council documents, the Council informed the Ombudsman that the setting up of such a register is currently under examination. The difficulties to be overcome concern the need to ensure that such a register is reliable and exhaustive.
The complainant's observations
The complainant maintained his complaint in substance. He emphasised that the Council's approach to repeated requests for larger amounts of information would prevents journalists, academics and commercial entities from doing their jobs properly and would severely restrict intense scrutiny of the Council. He also considered that applications for large amounts of information, like the agendas in the present case, were unavoidable when the Council did not maintain a clear register of its documents.

THE DECISION

1. The objective of Council Decision 93/731 is to give effect to the largest possible access for citizens to information, with a view to strengthening the democratic character of the institutions and the trust of the public in the administration (3).
As concerns Article 3(2)
2. According to Article 3 (2) of Decision 93/731:

"The relevant departments of the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents."

3. The Ombudsman has in a previous decision concluded that the Council's interpretation of Article 3 (2) was incorrect(4). In that decision, which was decided after the circumstances which gave rise to the present case, the Ombudsman concluded the following:
The term 'repeat application' appears naturally to refer to applications for the same document. On this interpretation, the practical effects of Article 3 (2) include the possibility of a fair solution to allow the Council services to deal efficiently with cases in which the same person makes repeated applications for the same document, hoping or claiming that the circumstances which motivated previous refusals may have changed.
To extend the meaning of 'repeat applications' so as to include applications by the same person for different documents could defeat the application of the general rule: Decision 93/731 does not impose any limit on the number of documents for which a citizen may apply as of right. In the absence of such a limit, moreover, the Council could infringe the principle of legal certainty, because it would not be possible to know in advance how many different documents could be requested before the Council would consider the application to be a 'repeat application'.
To interpret Article 3 (2) so as to bring all applications for a very large number of documents within its scope leads to the same practical result as interpreting 'repeat application' to include applications by the same person for different documents. Similar arguments against such an interpretation therefore apply.
4. The Ombudsman's conclusions in that decision are applicable to the present case. The Ombudsman therefore considers that the Council has wrongly interpreted Article 3 (2) of Decision 93/731 and that it was not entitled to rely on that Article as a reason to reject part of the complainant's application for documents in this case. The term 'repeat applications' in Article 3 (2) does not include applications by the same person for different documents, nor is the Article to be interpreted so as to bring all applications for a very large number of documents within its scope. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice.
5. However, it shall also be mentioned that the Council's opinion expresses a legitimate concern to safeguard the efficiency of its administration. As the Ombudsman observed in the decision referred to, Member States which have a long experience of administering a right of public access to documents often rely on a system of charging fees for documents supplied as a safeguard in dealing with requests which impose a heavy administrative burden.
As concerns the statement of reasons
6. According to established case-law, the statement of reason for a decision refusing access to a document must contain the reasons for which the Council considers that disclosure of the requested documents comes within the scope of one of the exceptions provided for in Decision 93/731.
7. As concerns the documents 'Schoolchildren/5143' and 'CIREA/1452', access was refused on basis of Article 4 (2) which provides that the Council may refuse access in order to protect its interest in the confidentiality of its proceedings. The Council's statements of reason were based on the consideration that the documents related to subject matters which were still being discussed in the Council and that the future information exchange between the Council and the Member States could be harmed by disclosure.
8. The Ombudsman shall observe that in public access regimes, it is commonly a consideration which carries considerable weight that the disclosure of documents which relate to on-going discussions could hamper such discussions. However, if the Council's public access regime shall attain its objective of strengthening the democratic character and the public trust in the institutions, such a consideration should be applied with prudence. In its statement the Council referred to this broad consideration, without specifying why it was relevant in relation to the documents in question. Thus the Council's statement of reasons does not enable the Ombudsman to ascertain whether it has correctly applied Article 4 (2). The Ombudsman therefore finds that the complainant rightly alleged that the Council's reasoning was inadequate.
9. As concerns the documents 'Asylum/8418' and 'Racism/7141', the Council stated in its opinion that its reliance on Article 4 (1) was incorrect, and that Article 4 (2) should have been applied instead. The Council will therefore have to reconsider its refusal of access under Article 4 (2) in the light of the Ombudsman's findings above.
As concerns the obligation to balance interests under Article 4 (2) in reply to the initial application for documents
10. The Ombudsman noted that the Council had acknowledged that it should also balance the relevant interests at the initial stage of a public access application when relying on Article 4 (2). The Council had also recognised a duty to make it clear in its initial statement of reason that such balancing had in fact been carried out. The Ombudsman did therefore not consider it justified to inquire further into this grievance.
As concerns a Council register of documents
11. As it appears that the Council is setting up a register of documents, the Ombudsman did not consider it justified to inquire further into this grievance.

CONCLUSION

12. On basis of the Ombudsman's inquiries into this complaint, it appeared necessary to make the following critical remarks:

A) The Ombudsman considers that the Council has wrongly interpreted Article 3 (2) of Decision 93/731 and that it was not entitled to rely on that Article as a reason to reject part of the complainant's application for documents in this case. The term "repeat applications" in Article 3 (2) does not include applications by the same person for different documents, nor is the Article to be interpreted so as to bring all applications for a very large number of documents within its scope. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice.

B) In refusing access to 'Schoolchildren/5143' and 'CIREA/1452' under Article 4 (2) of Decision 93/731, the Council referred to a broad consideration according to which disclosure of the documents would hamper discussions on the subject matters of these documents. This broad reasoning does not enable the Ombudsman to ascertain whether the Council has correctly applied Article 4 (2). The Ombudsman therefore considers that the Council failed to comply with the requirement to provide the complainant with the particular reasons which led it to consider that disclosure would hamper its proceedings.

13. Article 7 (3) of Council Decision 93/731 expressly provides for an applicant whose confirmatory application for access to documents is rejected to be informed of the possibility of complaint to the Ombudsman. The Ombudsman's critical remark implies that the Council should reconsider the complainant's confirmatory applications and give access to the documents requested, unless one of the exceptions contained in Article 4 of Decision 93/731 applies. Since it is for the Council to carry out this reconsideration and communicate the result to the complainant, the Ombudsman closes the case.
The Secretary General of the Council of Ministers will also be informed of this decision.
Yours sincerely,
Jacob Söderman

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(1) Council Decision 93/731/EC of 20 December 1993, OJ 1993 L 340/43.

(2) CIREA stands for "Centre for Information, Discussion and exchange on Asylum".

(3) Case T-174/95, Svenska Journlistförbundet (Tidningen Journalisten) v Council, judgement 17 June 1998, para 66.

(4) Decision on complaint 1053/25.11.96/STATEWATCH/UK/IJH against the Council.