By Helen Darbishire
Darbishire is Executive Director of Access Info Europe.
The threat that the right of access to information from European Union bodies will be reduced moved a step closer to reality May 10 when the 27 Member States approved a document from the Danish EU Presidency which would add broad exceptions to the existing rules.
The May 10 document, obtained May 11 by Access Info Europe, shows that the “compromise” position adopted by the ambassadors of the EU 27 includes:
– Limiting and narrowing the definition of a document;
– Limiting access to databases;
– Adding a presumption that transparency harms legal advice coupled with a severe weakening of the public interest test;
– New blanket exclusions for documents relating to investigations and documents submitted to courts by non EU actors (e.g.: private companies);
– New exceptions for staff selection and awarding of contracts and grants;
– Doubling of time limit for reviewing appeals;
– Providing access to only some documents in the case of request for a large number of documents or a long document.
While the Council’s proposal contains some positive features, such as establishing information officers and a clearer privacy provision which would provide access when public officials are “acting in the framework of their professional activities related to Union matters”, these are far outweighed by the severe restrictions on access included in the Danish Presidency’s proposals.
Perhaps the most worrying of all these proposals is the inclusion of a presumption that transparency harms legal advice, given that a significant proportion of decisions which are taken by the Council of the EU and by the European Commission will at some point pass through the legal services for advice.
In a remarkable move, the proposed provision puts the burden on the applicant to prove that there is a public interest in accessing legal advice and proposes that “the principles underlying this regulation do not in themselves constitute such an overriding public interest”. In other words, the public’s right of access to documents as established by the EU treaties and all the reasons for it given by those treaties – good governance, participation, openness of the legislative process – will be impermissible arguments in favour of transparency.
This document is now the Council’s “mandate” for negotiating with the Parliament and the European Commission – something analogous to a negotiation between the cabinet, administration and parliament at the national level.
The Swedish government has already characterised the proposals as going in the “opposite direction” to transparency and being worse than the much-criticised 2008 proposals put forward by the European Commission, a report by Wobbing.eu this week revealed.
In a public document dated May 9, the Finnish government has also come out against the Danish proposals, saying that Finland is “highly critical” of the mandate (basing a Google translation of the document).
The split in the Nordic consensus on the appropriate levels of EU transparency is a worrying sign that the Danish presidency has been unable to persuade the larger EU states to ease up on their entrenched position against transparency. These states include France, Germany, Italy, Spain and the UK. They are reported to be joined by Austria, the Czech Republic, Greece, Malta, and Portugal, bringing them a voting majority in the Council of the EU.
There has been particular criticism of the UK government for working to weaken the access to documents rules given that it is promoting a strong transparency agenda domestically and has just taken over the chairmanship of the Open Government Partnership.
Hope Rests in the Parliament
The key to the future of EU transparency now rests with the European Parliament, which in December 2011 adopted a strong position in favour of strengthening the access to documents rules, uniting all the political parties in the parliament, with the exception of the right of centre European People’s Party.
As the debate about EU transparency now moves to the “tripartite” negotiations the Parliament will need to stand firm on its position, which has previously included a position against all the most troubling proposals from the Commission, and those now proposed by the Council.
Civil Society groups in January issued a set of 20 demands for reforms which would bring the EU’s access to documents rules into line with international and comparative standards. The focus now is not on promoting the highest standards but stopping regressive reforms which would shut down public access to key EU decision making.
Overview of the Concerns
– Limiting the definition of a document by changing it from all documents held by an EU body to documents “concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility”. In an additional provision whose necessity is also unclear, a document drawn up by an EU body only becomes subject to the access to documents rules “when it has been either formally transmitted to one or more recipients, submitted for filing or registration, approved by the competent official, or otherwise completed for the purposes for which it was intended.” The EU has a track record of not registering all documents and it will be hard for a requester to know – and to prove – with whom it has been shared or when precisely it is completed. The heavy emphasis on documents in these proposals runs counter to the global trend to also provide a right of access to information.
– Access to databases limited because data can only be extracted “using the available tools for exploitation of the system,” which means that, counter to trends at the national level, it may not be possible to obtain access to an entire database;
– Adding a presumption that transparency harms legal advice and severe weakening of the public interest test: A new provision establishes that there shall be a presumption against public access to legal advice. In a remarkable move, the proposed provision puts the burden on the applicant to prove that there is a public interest in accessing legal advice and proposes that “the principles underlying this regulation do not in themselves constitute such an overriding public interest”. In other words, the public’s right of access to documents as established by the EU treaties and all the reasons for it given by those treaties – good governance, participation, openness of the legislative process – will be impermissible arguments in favour of transparency. The provision is designed to reverse a 2008 ruling of the European Court of Justice in favour of access to the legal advice obtained by the Council (“Turco” case). It is noted that the vast majority of decisions which are taken by the Council of the EU and by the European Commission will at some point pass through the legal services. The uncomfortable issue for the Council is for the public to obtain access to legal advice which advises on a different decision from that taken; without access to the legal advice, debate about the correctness of a decision from the perspective of EU law becomes speculative and the public’s ability to hold the EU to account is weakened.
– New blanket exclusions for documents relating to investigations and documents submitted to courts by non EU actors (e.g.: private companies) – the new rules would exclude these documents from the scope of the right to request until after an investigation is concluded, but documents obtained from natural or legal persons would remain permanently outside the reach of the right to know. Similarly, there is no limit for access to documents submitted to the EU courts by private bodies or persons.
– New exceptions for staff selection and awarding of contracts and grants: additional exceptions which are not clearly provided for by international standards such as the Council of Europe Convention on Access to Official Documents include protection of “the objectivity and impartiality of selection procedures or the award of grants”, as well as exceptions which would give EU officials the ability to refuse to provide information “involving the comparative assessment of … members of the staff of an institution or involving the merits of candidates for public offices.” This is of concern given a number of ongoing controversies over the way EU staff have been recruited and the growing influence of industry lobbyists who enter jobs in EU bodies in what has become known as the “revolving door” phenomenon.
– Doubling of time limit for reviewing appeals: The time limit for a first administrative appeal is doubled from 15 to 30 working days. A new time limit is an additional 5 working days for consulting with Member States over documents they originally created. With applicants relatively frequently having to resort to administrative appeals before obtaining a document, this could mean that an applicant might have to wait up to 50 working days before obtaining (or not obtaining) a requested document.
For documents cited in this article. see the Access Info Europe website.
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