28 March 2012
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No freedom
of information in the EU
Article by Tony Bunyan,
Statewatch editor, in European Voice, 8 February
2001
The principle of freedom of information is in the first Article of the current code of access to EU documents. Citizens have the right to request any document, subject only to very specific and narrow exceptions, held by an EU institution. The current code has been in place since 1993 and its operation has been greatly improved by challenges in the Court of First Instance and to the European Ombudsman. These initiatives backed by six member states - Denmark, Finland, Sweden and often the Netherlands and the UK and sometimes Ireland - have lead to significant improvements. The other nine member states, led by Germany and France, have consistently opposed more openness.
The commitment made in Amsterdam in June 1997 was intended to "enshrine" the citizens right of access to EU documents. It was meant to build on the existing code and practice and turn it into a true freedom of information law. This would have meant opening up to public view - subject to specific and narrow exceptions - thousands of documents influencing policy-making not on agendas of Council meetings, Commission interdepartmental consultations, reports on implementing policies and correspondence between institutions and third parties and much more.
However none of these advances are on the agendas of the three institutions - the Council, European Commission and the European Parliament - charged with agreeing the new code under the co-decision procedure by 1 May.
Instead the Amsterdam commitment is being used to turn the clock back. All the draft proposals from the three institutions want to introduce a "space to think" for officials (public servants) and to remove the principle of the right to ask for any document held.
The current draft common position of the Council would permanently exclude from public access: a) "space to think" documents: discussion documents, opinions of departments, preparatory documents, documents in preparation, texts which express personal opinions reflecting views as part or preliminary consultations, deliberations within the institutions (reports and correspondence); b) Documents covered by "third party" vetoes including those from: non-EU states (eg: USA), international organisations and agencies (like NATO or G8); and c) the following will be subject to special procedures: All "Top Secret", "Secret" and "Confidential" documents concerning foreign policy, military policy, non-military crisis management (including policing, border controls, trade and aid) and any document referring to them.
The status of "third parties", with the right to veto access to documents, is also to be given under the Council draft to EU member states. The 15 EU member states are the Council of the European Union. If a member state submits a document on EU policymaking with a view to changing or influencing it then it should clearly be in the public domain. The idea that a member state (a government) has the same rights of "authorship" as a playwright or a songwriter is sheer nonsense. Government documents and EU documents are public documents submitted in the name of the people, they are not the product of individual endeavour.
The Council draft also wants to introduce what has been long feared: a veto by the Brussels-based institutions over access to EU documents requested by citizens under national laws on freedom of information.
The exclusion from public access to "space to think" documents will also exclude "space to act" documents concerning the implementation of policies once adopted. It should be inconceivable in a democracy that governments, whether national or European, should seek to be so unaccountable, so removed from public scrutiny but that is what is being proposed.
And where does civil society, the "fourth party" to the discussions, come into the equation? The answer is that it does not. The Commission never published a discussion paper to elicit views and reactions from civil society. The Council has been discussing its draft position behind closed doors (leaked drafts of the Council's common position are on the Statewatch website (www.statewatch.org/news).
The incoming Swedish Presidency inherited a draft common position from the French with which it disagrees. Faced with an impossible timetable and the positions of all three institutions being quite different on fundamental issues, it has been decided to hold a series of three "trilogue" meetings in order to reach a "compromise". Of course, these meetings too are being held in secret, behind closed doors, with the objective of producing a deal by the end of February leaving just time to complete the formalities by 1 May. So much for openness!
The new code raises wider issues than simply access to documents or freedom of information, issues that concern the democratic future of the EU.
When Statewatch applied for a document setting out far-reaching changes to the 1993 code of public access to EU documents in July (the now infamous "Solana Decision") the Council said its release "could fuel public discussion on the subject". It is hard to think of a more undemocratic argument. Access to documents is fundamental to a healthy, critical and thriving democracy. It enables civil society to understand, analysis and participate in a discussion.
People have a right to know all the views considered and rejected and all the influences brought to bear, on policymaking. They have a right to see these documents as they are produced or received - not after a new policy is adopted, but before.
Access to documents does indeed "fuel public discussion" and so it should.
The resolution of this issue will be a defining moment for the EU. The argument is really very simple: In a democratic system, citizens have a right to know how and why decisions are made. Without freedom of information, access to documents, there is no accountability and without accountability there is no democracy.
As long as I can remember there has been a "democratic deficit" in the EU and there still is even as the EU prepares for enlargement.
The "democratic deficit" is not just about the powers of parliaments - national or European - it is much deeper than that. It is about changing the democratic culture into a culture of openness, of an informed public and responsible and accountable institutions.
Many suspected that the "dinosaurs" (to use the European Ombudsman's phrase) would come out of hiding. Officials and vested interests would try and use the commitment in Article 255 of the Amsterdam Treaty not to "enshrine" the right of public access but to limit and shackle it - to end up with not a code of access for citizens but "A Regulation for the Protection of the Efficient Workings of the Institutions".
Unless there is a dramatic turnaround in the next few weeks
this is exactly what we will get and democracy will be the poorer.
We will have a new code of access to documents that is worse
than the present one and we will not have freedom of information.
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