By Roger Vleugels
The Dutch Green Party on June 4, 2012, issued a draft for a new Dutch Freedom of Information Act. This description is by Roger Vleugels, a lecturer, legal adviser, publisher, and an advisor to the Green Party.
The problem: the Old Wob
The current Dutch Wob: Wet openbaarheid van bestuur, the Dutch equivalent of a FOIA: a Freedom of Information Act, while modern at its birth, it came into power in May 1980, it is seriously outdated for its limited scope, lack of orientation towards electronic transparency and open data demands and wide exemptions. It allowed a practice of easy denial of information, very long procedures, scarce allocation of resources to handle requests and little or irregular proactive disclosure.
In 2009 the Dutch cabinet took measures that further curtailed the transparency, by extending the time limits for decisions on requests for information and speaking out against perceived abuse of the law.
Meanwhile, the demand for more transparency grew rapidly in the first decade of this century among citizens, media, academia, the open data movement and non-traditional political parties, especially after it was revealed that crucial information on the Dutch support for the war in Iraq had been withheld.
The New Wob:
The procedure
Member of Parliament Mariko Peters of the Dutch Green Party recently launched a draft bill for a new Wob, for a public internet consultation closing on 29 June. Simultaneously, a competition was opened for submissions by citizens for a preamble to the law. An independent jury will choose the winning text to be incorporated into the bill. The bill will be submitted to parliament before July 7 2012 and offered to the Council of State for its mandatory advice. The bill will be discussed by a new parliament, to be elected on 12 September. The Labour Party has already indicated that it will co-sign the bill. A majority for the bill is likely.
The draft bill was drawn up after close consultation with stakeholders of national and local government, the offices of the ombudsman and the national archives, national and international FOIA-ex-perts, IT-experts, companies, civil society, lawyers, and academia.
Its philosophy
In an open democratic society, citizens have access to government information while politics are transparent and open to input. Governments acknowledge that they cannot produce all necessary solutions nor that they can be presumed to do things automatically in the best way. We know this more than ever, in the midst of the financial-economic crisis, the climate crisis, the energy crisis, the budget crisis and the political crisis of rapidly changing preferences and disenchantments of the electorate.
Citizens, journalists, companies and civil society need to be able to control their government on any moment to see if rules are followed and money and opportunities well used. But there is more. A government that trusts its citizens makes use of the creativity, innovation drive and suggestions coming from society to enhance public policy and governance. Such a government does not fool itself with omnipotence but is aware of its limitations. It is not closed or exclusive, but open and at the service of the society from which it derives its mandate. In this digital era, citizens and companies follow and participate in government 24/7, making our public and political arena smarter and stronger.
Main characteristics
The New Wob main changes to the old Wob are:
– a more elaborated right to access to public information ;
– adoption of the principle that transparency is the norm, while exemptions are tightened;
– the establishment of an independent information commissioner, who can decide on appeal against denials of requests for information, monitors proactive disclosure of information by public bodies and trains FOI officials;
– broadening of the scope, so that all publicly financed or controlled bodies will be transparent;
– speedier and more systematic pro-active electronic disclosure of information, searchable with a register, in open standard and machine readable (for re-use).
Points of departure
The bill takes the Convention on the access to official documents, the Treaty of Tromsø of the Council of Europe of 2009, as its minimum standard. It also takes the mandatory standards of access to information on environmental matters, laid down in the UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 1998 (Aarhus Convention) as the general standard for access to any type of information.
Much attention has been given to the recommendations of 2004 of the independent evaluation committee, tasked by the government to review the old Wob. Also the government-commissioned design for a general law on management of government information of 2006, by prof. Van der Meulen, the Article 19 international standards for FoI legislation and international models for the offices of an information commissioner have served as inspiration.
The structure of the new Wob more or less follows the old Wob in style and vocabulary. It also respects the choice of the old Wob to include rules for access to public documents for re-use, as per the European regulation requiring harmonization of minimum standards on re-use. In content however, the old Wob has been entirely rewritten. Where appropriate, references are made to the Dutch general law on administration, which gives general principles of procedure within public authorities. The chapter on the information commissioner heavily refers to the law on the national ombudsman, to avoid duplication of rules regarding installation, replacement and arrangement of independent high state organs such as the ombudsman.
Content of the new Wob
The bill contains ten chapters and two appendices.
Chapter 1 establishes to right to access and the right to re-use public information, as per the terms and conditions of this law. Unlike in many countries, the right to access is not (yet) enshrined in the constitution. The right is derived from the right to freedom of expression, as interpreted by the Court of Human Rights of the Council of Europe. Persons requesting information shall be treated equally, and do not have to state a special interest to obtain the information. Other laws with special access to information regimes, such as the law on the intelligence services or the archives law, can override the Wob as lex specialis only if the Wob explicitly allows for their supercedence. Appendix 2 to the law lists laws with such a lex specialis regime.
Chapter 2 states the general provisions. It contains definitions and general principles applicable throughout the law. The definition of ‘body’ for instance, widens the scope of the law from public bodies to private bodies with a statutory mandate, an overriding government influence or bodies that are publicly funded. This includes for example hospitals, public housing corporations, public broadcasters, energy companies and ngo’s that receive structural public funding. Parliament is also brought within the scope, while the position of individual members of parliament remains protected by their constitutional rights. This chapter also sets standards for disclosure of information, i.e. up to date, accurate, comprehensible, easily accessible for the general public and interested parties, electronic and machine readable.
Chapter 3 regulates the proactive disclosure of public information by bodies. Information is disclosed either at the body’s own initiative or upon request. Specific categories of information that should always be proactively disclosed are codified, to avoid the current practice of discretionary, haphazard and untimely publication of information. Expert reports, commissioned opinions or decisions on high expenditures shall be put online immediately. Following international examples, bodies are also required to maintain an electronic register of documents, so that citizens know what kind of information a body is holding and to enable them to specify what they are looking for.
Chapter 4 deals with requests for information. Any person can submit a request for information, without having to specify an interest or reason why. The request can be done orally, in written form or electronically. The body can take two weeks to decide on the request, and may extend the term with another two weeks if the request is complicated. After this time period, the body shall disclose the information immediately or refuse the request in whole or in part, or decide to grant the request with disclosure after two weeks. That enables third parties to object against the disclosure. Denials of requests for access may be appealed against with the information commissioner, dealt with in chapter 7. If the request is granted, chapter 8 stipulates that the information shall be made available without costs; only costs for a copy upon request may be charged.
Chapter 5 gives the exemptions to the obligation of bodies to disclose their information. Some legitimate interests deserve protections against the general interest of the public in disclosure, but this needs to be established on a case by case basis. The law abolishes the blanket exemptions of the old Wob and limits the reasons for non-disclosure to interests of national security, the unity of government (typical political necessity in constitutional monarchies and coalition governments which the authors would like to eventually get rid of but which is not feasible politically in the foreseeable future), interna-tional relations, criminal investigation, inspection, privacy, personal opinions (expressed in internal deliberations amongst officials, excluding facts, alternative policy options or risks that have been taken into account), competition sensitive data, economic or monetary interests of the state, the equal treat-ment of parties in court, or the environment. If requested information contains parts of information that may be exempted, the body shall only withhold the exempted part and disclose the rest.
Chapter 6 deals with re-use of government information and brings public broadcasters, universities and research institutions, and cultural institutions back into the scope of the duties to allow re-use. This is also what the European Commission has proposed in its draft revision of the Europea regulation on re-use of public information. The chapter prohibits government bodies to attach conditions to re-use of its information. It also stipulates that the government shall not exercise its copy rights to prohibit the re-use of its information. Requests for access for re-use shall be granted short of three situations in which the electronic re-use of the information might cause damage to the protection of personal data, the environment or public security.
Chapter 7 establishes the information commissioner, who shall help citizens, bodies and companies with the implementation of this law. The information commissioner can give recommendations in individual cases or for entire sectors of the government on how it shall enhance its transparency. In addition, the commissioner can decide in appeals against decisions of denial of access. Decisions of the commissioner can in turn be subject to appeal with the court. Parliament appoints the commissioner, whose statutory position is similar to that of the National Ombudman.
Chapter 8 regulates other general provisions, such as the costs for granted requests for information and the regime for lex specialis. Chapter 9 amends other laws, such as the law on the Council of State, the law on the National Ombudsman and the Criminal Code. It will be an offense if any officer destroys public information to avoid application of this law. Chapter 10, finally, gives final provisions such as the name of the law and the law’s date of entry into force. A special transition period of five years is allowed for the duty to maintain a register.
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