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Council of the European Union adopts policy on "open data" - but will continue to keep a lot secret

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Reuse is subject to:
"the obligation not to distort the original meaning or message of the documents."
9.10.17
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The Council of the European Union has adopted a: Council Decision on the open data policy of the Council and the reuse of Council documents (Doc no: 11563-17, pdf) which states that:

"An open data policy for Council documents would improve the flow of information between the Council and the general public; it would lead to the wider use and spread of information about the Union; it would enhance the Council’s reputation for openness and transparency; and it would strengthen the accountability of the Council as a public institution."

However Article 2 defining the Scope of the policy says:

"This Decision applies to documents held and produced by the Council which have been made public by the Council." [emphasis added]

The problem is that many of the most important and interesting documents, especially those concerning the discussion of legislation and planned operations fall under the non-classified title of "LIMITE" (meaning they are not to be circulated outside the EU institutions and Member States) will continue to remain secret.

The Scope is also limited by the exceptions to deny access under Article 4.3 of the Regulation on access to EU documents (1049/2001) which says that access can be refused where:

"Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." [emphasis added]

The term "overriding public interest in disclosure" is routinely denied.

The Scope also covers:

"intellectual property rights of third parties"

Where Regulation says in Article 4.4:

"As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed." [emphasis added]

This clause is applied, for instance, to LIMITE documents concerning Justice and Home Affairs and the USA.

The new Decision also excludes all Classified documents. The lowest Classified category is RESTRICTED which is defined as:

"information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of the Member States."

This could apply to documents the disclosure of which could be embarrassing or could lead to a public debate.

Article 6 - reuse

This Article on "Conditions for reuse" lays down that reuse is subject to:

"the obligation not to distort the original meaning or message of the documents." [emphasis added]

And finally that:

"The GSC shall take appropriate measures to protect the rights, interests and public image of the Council in all appropriate fora." [emphasis added]

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