- the need for Freedom of Information in the EU

[Henk Elegeert]

REPLY TO: D66 at nic.surfnet.nl

"
     Viewpoint by Tony Bunyan

     More openness or just a drop in the ocean?
     - the need for Freedom of Information in the EU

     Tentative moves have been made to improve openness (access to
documents) and transparency (of the decision-making process) in the EU.
The European Ombudsman issued a Special Report in October on the Council
of the European Union's (the 25 governments) refusal to meet in public
"whenever it is acting in its legislative capacity". Meanwhile Mr
Kallas, Vice-President of the Commission, is to launch a "Transparency
Initiative" which will list recipients of EU funding and "improve the
coverage of the existing commission register of documents".

     The real question for the Commission however is not to "improve"
its register of documents but to actually implement Article 11 of the
Regulation on access to documents which came into effect in December
2001. This says that "References to documents shall be recorded in the
register without delay" (Art 11.1). In practice the Commission has
utterly failed to implement this obligation, instead it has partially
implemented Article 12 on legislative measures, meaning that only a
fraction of the documents it produces are included in its register. The
Commission has an internal central document database covering every
aspect of policy-making and evaluation - why is this not the basis of
its public register?

     For both the Council and the Commission the problem is which
documents they give access to and which they does not. For example, the
largest category of refusal of access to documents by both institutions
is where disclosure would "seriously undermine the institution's
decision-making process unless there is an overriding public interest in
disclosure". This is the so-called "space to think" for officials and
not in a single instance has a "public interest" argument by an
applicant been upheld.

     In effect this means for example that although final Council and
Commission positions are made public few, if any, of the internal
discussions leading to the position are available before the measure is
adopted. In a democratic EU all documents related to a proposed new
measure should be made public at the same time as the proposal. Citizens
can then see what options and influences were rejected or adopted.

     One area in which there is the greatest secrecy are the numerous EU
meetings involving the USA on JHA issues. Between 2001-November 2005 a
total of 409 documents on the Council register concern "USA" of which
only 48.8% are publicly accessible (compared to over 62% in the register
as a whole). Sixteen documents are "partially accessible" meaning that
the US position is blanked-out.

     Most USA documents which are accessible were the subject of
parliamentary scrutiny in national and European parliaments. However, of
118 documents that were not, only 20 are accessible (17%) - mainly
concerning high-level EU-US meetings and "Informal" meetings covering a
range of issues.

     Since the Amsterdam Treaty came into force in 1999 the number of
documents in the field of justice and home affairs (JHA) has mushroomed
and there are now over forty working groups that have to be tracked.
Dozens of documents are produced every day by the Council and Commission
making the job of monitoring what is being discussed almost impossible
even for the most dedicated of researchers (let alone parliaments whose
agendas are cram-packed with new measures).

     The time has surely come for an EU Freedom of Information
Regulation governing all its institutions. As distinct from "access to
documents" which require each issue to be tracked down in the plethora
of committees and working groups, FOI in the EU would mean that a person
could simply request all the documents concerning a specific measure or
initiative and it would be the job of the institution to provide them.
This should be subject to a new very limited set of exceptions -
excluding the "space to think" and the right of third countries to veto
disclosure.

     It should also have a meaningful "public interest" test. To argue,
as the Council and Commission do, that for momentous decisions such as
the finger-printing of everyone in the EU (biometric passports and ID
cards) and the surveillance of all telecommunications, the "public
interest" of disclosure never overrides their "space to think" has no
place in a democratic Europe.

     A Regulation on FOI for the EU institutions should be accompanied
by a Directive covering the member states, the majority of whom do not
have national rules that come close to the standards advocated
internationally by experts.

     See also: The right to know or the right to try and find out? The
need for an EU freedom of information law, by Ben Hayes (pdf)

http://www.statewatch.org/news/2005/nov/eu-FOI.pdf

     This article first appeared in Statewatch bulletin, vol 15 no 5.

...
"


Henk Elegeert

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