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Analysis of the Decision of 14 August 2000 to amend the 1993 code of access to EU documents

01 November 2000

The fourth recital in the Preamble defines the underlying purpose of this proposal, it says:

"(4) The exchange of information in the particularly sensitive areas referred to in recital (1) [military and non-military crisis management], which is one of the features of the development of this new policy, will work only if the originator of such information can be confident that no information put out by him will be disclosed against his will. It is therefore necessary to provide that a Council document from which conclusions may be drawn regarding the content of classified information put out by a natural or legal person, a Member State, another Community institution or body or any other national or international body may be made available to the public only with the prior written consent of the author of the information in question."

This statement makes not distinction between policy-making (which properly belong in the public domain) and operations.

The implications of this statement is that if a document, or series of documents, contain contributions by another national body (eg: from the USA) or an "international body" (like NATO) then access is automatically denied to the whole document, or set of documents, unless, for example, the USA or NATO, agree in writing. This could completely undermine the public's right access to documents on issues such as those concerning "non-military crisis management" which interface with justice and home affairs (and civil protection) issues. See the new Article 2.3 below.

Article 1

The statement in the current Council Decision of 1993:

"The public shall have access to Council documents under the conditions laid down in this Decision"

is replaced by:

"1. The public shall have access to Council documents, except for documents classified as TRES SECRET/TOP SECRET, SECRET or CONFIDENTIAL within the meaning of the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, on matters concerning the security and defence of the Union or one or more of its Member States or on military or non-military crisis management, under the conditions laid down in this Decision"

a) This change fundamentally redefines the 1993 Decision whereby citizens could apply for any document held by the Council subject to the exceptions on Article 4 narrowly and specifically applied to exclude whole categories of documents permanently from the right of access.

b) since the Working Document of 12 July the category of "CONFIDENTIAL" has been added to the list of excluded documents.

Article 2

A new Article 2.3 says:

"3. Without prejudice to Article 1(1), no Council document on matters concerning the security and defence of the Union or one or more of its Member States or on military or non-military crisis management which enables conclusions to be drawn regarding the content of classified information from one of the sources referred to in paragraph 2 may be made available to the public except with the prior written consent of the author of the information in question.

Where access to a document is refused pursuant to this paragraph, the applicant shall be informed thereof"

The prior written consent of the author is required where a document comes from "a Member State, another Community institution or body, or any other national or international body" (paragraph 2) - this is relevant to the idea that incoming documents will be accessible.

The effect of this is to extend the categories of permanently excluded documents beyond TOP SECRET, SECRET and CONFIDENTIAL to any document - whatever its classification or indeed an unclassified LIMITE document from access if it falls within a batch of related documents from which conclusions can be "drawn regarding the content of classified information".

This is an e