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Council's draft common position on access to EU documents: French Presidency bequeaths Sweden a "poisoned chalice"

28 March 2012

6.2.01

At the meeting of COREPER (the body comprising the permanent representatives of the 15 EU governments in Brussels) on 18 December the French Presidency of the EU presented its final draft of the Council's draft common position on access to EU documents: Full-text (pdf)(draft dated 22.12.00). The dilemna for the new Swedish Presidency (from 1.1.01) is how far it can reverse the current "consensus" among the EU member states and meet its own commitment to meaningful freedom of information.

Each new version of the Council's draft common position under the French Presidency is worse than the previous one, and the 18 December version is no exception: 1. It would remove rights of access to EU documents under national freedom of information laws and centralise decisions in Brussels. 2. EU institutions would have the discretion to refuse access to documents until adopted. 3. EU member states would have a veto over access to documents submitted.

It is understood that as a result of the meeting of COREPER on 18 December 2000 a number of issues are still to be resolved by the Council: i) the referral of applications for EU documents at national level to the EU institution concerned (see point 3. below) has not been agreed yet; ii) the issue of "third parties" (point 2. below) has been referred back to the Working Party on Information with the remark that the European Parliament is unlikely to accept the proposal; iii) the registers of documents (see point 5. below) will not include references to "sensitive documents"; and iv) it was confirmed that "sensitive documents" would not just cover defence and foreign policy but all policy areas including justice and home affairs.

The changes from the version of 1.12.00 are as follows:

1. Under Article 4, "Exceptions" (grounds on which access to a document may be refused), Article 4.2 has been completely changed. The version of 1.12.00 said:

"4.2. Access to a document may be denied if its disclosure could seriously undermine the effectiveness of the institution's decision-making process, unless it is clearly in the public interest to disclose the document."

The 18.12.00 version says:

"Access to a document which relates to matter where the decision has not been taken by the institutions, may be denied if its disclosure could seriously undermine [the effectiveness of] the institution's decision-making process, unless it is clearly in the public interest to disclose the document."

The new wording is reminiscent of the European Commission's unpublished discussion paper which said that the premature release of documents before a decision has been taken could require:

"an embargo [which] could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of a document from giving rise to "misunderstandings" or jeopardising the interest of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision.."

Discussion paper on public access to Commission documents, 23 April 1999 and summarising the discussions held between "officials" from the European Parliament, Council and Commission

There are few more undemocratic ideas than the one that civil society should be denied access to documents until after a decision has been taken.

2. There are now two options on the table concerning documents from "third parties". The 1.12.00 version said:

"4.3. Access to a document provided by a Member State shall be refused if the Member State asks the document not to be disclosed without its prior consent.

Access shall also be refused to sensitive documents if their originator has not given its consent.

In cases not covered by subparagraphs 1 and 2 above, the institution shall consult the third party unless it is clear that the documents requested can be released without prejudice to the third party.

4.4.The institutions shall not release a document if the Member State or the other third party from which the document originates has requested the institutions concerned not to disclose it without its prior agreement."

The two options in the 18.12.00 version are:

"First option:

4.3 Access to a document provided by a Member State shall be refused if the Member State asks the document not to be disclosed without its prior consent.

In cases not covered by the precedent subparagraph, the institution shall consult the third party [unless it is clear that the documents requested can be released without prejudice to the third party].

4.4 Access shall be refused to sensitive documents if their originator has not given its consent.

Second option:

4.3 The relevant institution shall not release a document without the prior permission of the third party from which the document originates."

Two fundamental issues arise under both versions (and both options), namely, the so-called right of "third parties" to be given an absolute veto over access to EU documents. The idea that EU member states, which themselves comprise the Council of the European Union, have a right of veto over documents they have submitted to the Council (or another EU institution) undermines the principle of access to documents - especially as more and more documents on the Council's register of documents originate from member states. Article 3.c. defines "third parties" as "any entity outside the institution concerned" - but the Council would not exist but for the entities (EU member states) of which it is comprised.

It is equally unacceptable that documents submitted to determine or influence EU policy by non-EU states or organisations should be denied to EU citizens. The only exceptions should be those set out under Article 4.

3. A new Article 5.5) has been introduced which says:

"When a Member States' authority receives an application for access to a document of an institution which has not yet been released by the institution concerned, it shall forward the application promptly to the institution for a decision to be taken.

When an institution receives an application for access to a document of another institution, it shall forward the application to the other institution."

The effect would give the Brussels-based EU institutions complete control over the release of "their" documents and override a citizen's right of access to such a document under national freedom of information laws.

4. Another highly objectionable change has been made to Article 7. The 1.12.00. version said:

"7.2. If a document is already published and is easily accessible to the applicant especially via the Internet, the institution may inform him how to obtain it."

The 18.12.00 version is completely different:

"7.2 If a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested documents."

This allows an institution a complete let-out on the need to supply copies of documents. At present the worst offender exploiting this notion is the European Commission which tells applicants to buy (very expensive) copies of the Official Journal rather than supplying the original document (these documents are on the internet for 40 days which is useful but no good after this period).

5. A new "option" has been added to Article 9 on "Information and Registers". The 1.12.00 version said:

"9.2. No reference shall be made to the subject-matter of a document if disclosure of chat information could undermine the protection of the interests referred to in Article 4 (1)."

This is now the first "option", the second is:

"The public register shall not include the sensitive documents."

The latter would, in effect, permanently exclude all "Top Secret", "Secret" and "Confidential" documents - regardless of their subject matter - and any other group of documents which mention one.