HISTORICAL BACKGROUND
Article 110 of the Constitution states:
In the exercise of their duties government bodies shall observe the principle of transparency in accordance with rules to be prescribed by Act of Parliament.(1)
This has been generally recognized as obliging government bodies to be open and publish information but it is not considered to provide a right to citizens to be able to demand access. There was a debate on amending the Constitution as part of an effort to update it to include information technology. However, the FOI right was not included.
Transparency has been of longstanding concern in the Netherlands. The 1795 Declaration of Rights of Man stated, "That every one has the right to concur in requiring, from each functionary of public administration, an account and justification on his conduct."(2)
Freedom of information legislation was first adopted in 1978. The Government Information (Public Access) Act (WOB) replaced the original law in 1991.(3) Under the Act, any person can demand information related to an administrative matter if it is contained in documents held by public authorities or companies carrying out work for a public authority. The request can either be written or oral. The authority has two weeks to respond. Recommendations of advisory committees must be made public within four weeks.
Information must be withheld if it would endanger the unity of the Crown, damage the security of the state or if it relates to information on companies and manufacturing processes that were provided in confidence. Information can also be withheld "if its importance does not outweigh" the imperatives of international relations and the economic or financial interest of the state. Withholding is also allowed if the release of the information would endanger the investigation of criminal offenses, inspections by public authorities, personal privacy and the prevention of disproportionate advantage or disadvantage to a natural or legal person. In documents created for internal consultation, personal opinions shall not be disclosed except in anonymous form when it is "in the interests of effective democratic governance." Environmental information has limited exemptions.
Appeals can be made internally and then to an administrative court which has the final decision. The courts hear an estimated 150 cases each year.
A bill to amend the WOB to implement the requirements of the EU Directive on the re-use and commercial exploitation of public sector information (2003/98/EC) was approved in December 2005.
According to experts, the WOB is only lightly used, around 1,000 requests each year, mostly by a few newspapers.(4) The lack of interest stems from media and NGOs' belief that filing requests could be considered to be disruptive to good relations with government bodies, no tradition of political research, a lack of sanctions, broad exemptions and poor archives. The Minister for Government Reform announced in December 2005 that he will introduce a new more liberal law. A draft bill for consultation is now being considered.(5)
Individuals can obtain and correct personal information held about them by public and private bodies under the Personal Data Protection Act.(6) It is overseen and enforced by the Data Protection Authority (CBP).(7)
The Archives Act requires that, documents are sent to the national and regional archives after 20 years. National security related documents can be kept closed for 75 years.
The Criminal Code prohibits the disclosure of state secrets. Punishment can be up to 15 years imprisonment.(8) Reporter Peter R. de Vries was investigated in December 2005 after he published secret information that had been on a disk lost by an official that showed that the intelligence service was monitoring the private life of murdered politician Pim Fortuyn. The prosecutor's office announced in February 2006 that there were dropping the investigation.(9)
The Netherlands signed the Aarhus Convention in June 1998 and accepted it in December 2004. Access to environmental information is under the WOB. The WOB was amended in July 2005 to implement the convention and the 2003 EU Directive.(10)
2004 freedominfo.org Global Survey Results - The Netherlands
DUTCH FOIA BASICS
SOURCE: Roger Vleugels, "Some technical information on the Dutch FOIA, the wob" (7 Dec 2005).
For more information, Fringe eZines (by Roger Vleugels and Jan van den Baard)
Statistics
• Enacted: May 1980, latest act update February 2005 (implementing the Arhus treaty)
• Requests: 1000 a year on federal level. (UK 150,000+ / US 2,500,000+ both on federal level)
• Success-rate: Request 15%; administrative appeal 35%; court appeal 65%; high court appeal 75%
• Rulings: In almost all cases a ruling will have the exact effect as meant in the ruling
• Speed: Request 1-2 month; administrative appeal 4-5 month; [high]court appeal each 1-2 year
• Requesters: 75% journalists; 25% lawyers, NGO's, researchers, publicists and so on
Overview of Exemptions
The absolute exemptions
• The Royal Family/Household, internal Cabinet debates and docs concerning the Colonies
• National Security
• Confidentiality on trade and business secrets stored in government docs
• Some types of privacy data
The relative exemptions
• Diplomacy
• Financial interests of the State
• Law enforcement docs if case related and only during the operational phase of a case
• Inspectorate data [sometimes] and methods [always]
• Some types of privacy data
• Disproportionate disadvantage
The restrictions
• Internal docs and personal opinions on policies of civil servants
NOTES
Unofficial translation. Official translation of Constitution of the Netherlands, 2002 at http://www.minbzk.nl/contents/pages/6156/grondwet_UK_6-02.pdf
Link
Act of 31 October 1991, containing regulations governing public access to government information. It replaced the Act on Public Access to Information of 9 November 1978.
Roger Vleugels, The Dutch FOIA, a 25 year old toddler, December 2005.
See here.
Personal Data Protection Act of 2000. http://www.cbp-info.nl/bis/subset-1-11-7.html
Homepage: http://www.cbdweb.nl/
Criminal Code §98.
Officer lost memory stick with details of Afghan mission, Expatia, 2 February 2006.
Staatsblad 2005/341, 7 July 2005.
