HISTORICAL BACKGROUND

Article 32 of the Constitution was amended in 1993 to include a right of access to documents held by the government:

Everyone has the right to consult any administrative document and to have a copy made, except in the cases and conditions stipulated by the laws, decrees, or rulings referred to in Article 134.(1)

The constitutional right is implemented on the federal level by the 1994 Law on the right of access to administrative documents held by federal public authorities.(2) The act allows individuals to ask in writing for access to any document held by executive authorities and can include documents in judicial files.(3) Government agencies must respond within thirty days. Each decision must include information on the process of appealing and name the civil servant handing the dossier. The law also includes a right to have the document explained.

There are three categories of exemptions. In the first category, information must be withheld unless the public interest in releasing it is more important. This applies to documents relating to public security, fundamental rights, international relations, public order, security and defense, investigations into criminal matters, commercially confidential information and the name of a whistleblower. The second category provides for mandatory exceptions for personal privacy, a legal requirement for secrecy, and the secrecy of deliberations of federal government authorities. The third category provides for discretionary exemptions if the document is vague, misleading or incomplete, related to an opinion given freely on a confidential basis, or the request is abusive or vague. The two first categories of exceptions are applicable on all administrative bodies, the third category applies only to federal administrative bodies. Under the 2000 amendments, documents relating to environmental matters cannot be withheld under exemptions in the first category and those in the second category made secret under another law. Documents obtained under the law cannot be used or distributed for commercial purposes.

Citizens can appeal denials of information requests to the administrative agency which asks for advice from the Commission d'accès aux documents administratifs. The Commission issues advisory opinions both on request and on its own initiative. The Commission received 116 requests for advice in 2004 and 81 in 2005. Requestors can then make a limited judicial appeal to the Counsel of State. There were approximately ten appeals in 2004 and 2005.

The Act also requires that each federal public authority provide a description of their functions and organization. Each authority must have an information officer.

In a report on the implementation of the law sent to the Council of Europe, the Foreign Ministry reported a number of problems with the act:

• The protection of the right of access to the official documents is not ensured enough though the appeals mechanism.
• People are not familiar enough with the right of access.
• Inadequate training of civil servants.
• The existence of absolute exemptions.
• The existence of the specific regulations which organize the right of access for specific types of documents.(4)

An interdepartmental working group is currently developing a bill to implement the EU Directive on the re-use and commercial exploitation of public sector information (2003/98/EC). The law is expected to amend the 1994 Act. There are separate efforts in the regions to implement the directive.

Belgium signed the Aarhus Convention in 1998 and ratified it in January 2001. The 2000 amendments to the federal access to information act allow for access to environmental information. In 2003, 7,000 requests for information were made to the Info-Environmental Department.(5) In July 2005, the European Commission announced that it was taking legal action against Belgium and six other countries for failing to implement the 2003 EU Directive on access to environmental information.(6) As of May 2005, the government reported that it was drafting a bill to transpose the Directive into law.(7)

The Parliament adopted the Law on Security Classification and Authorisations in 1998.(8) It creates three levels of classification: Top Secret, Secret and Confidential. The law exempts classified information from access under the 1994 Act.

The Law on Protection of Personal Data gives individuals the right to access and to correct files about themselves held by public and private bodies.(9) It is enforced by the Data Protection Commission.(10) For administrative documents that contain personal information, access is handed under the 1994 access law.

There are also laws implementing access rules at the regional, community and municipal levels.(11)

2004 freedominfo.org Global Survey Results - Belgium

NOTES

1. Constitution of Belgium, 1994. http://www.uni-wuerzburg.de/law/be00000_.html. See Frankie Schram, "Executive Transparency in Belgium", Freedom of Information Review, No 95, October 2001. According to an analysis by Professor Frankie Schram, this was broadly envisioned in the traveaux préparatoires to include a wide range of documents in any form held by and executive authority.

2. Loi du 11 avril 1994 relative à la publicité de l'administration. Modifee par Loi 25 Juin 1998 et Loi 26 Juin 2000. http://www.privacyinternational.org/countries/belgium/loi-publicite.rtf

3. Schram Id.

4. Council of Europe, Compilation of the replies to the questionnaire on the implementation of Recommendation Rec(2002)2 on access to official documents, DH-S-AC(2004)001 add bil 16 September 2004. (Unofficial translation).

5. UNECE Implementation Report - Belgium, ECE/MP.PP/2005/18/Add.4, 9 May 2005.

6. European Commission, Public access to environmental information:Commission takes legal action against seven Member States, 11 July 2005.

7. ECE Report Id.

8. Loi relative à la classification et aux habilitations de sécurité, 11 décembre 1998. http://www.staatsbladclip.be/lois/1999/05/07/loi-1999007004.html

9. Loi relative à la protection des données à caractère personnel du 8 décembre 1992. http://www.law.kuleuven.ac.be/icri/documents/12privacylaw.html

10. Homepage: http://www.privacy.fgov.be/

11. La loi du 12 novembre 1997 relative à la publicité de l'administration dans les provinces et les communes. http://users.swing.be/sw086276/info/L_12_11_1997.htm