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Statewatch News online: Critique of the "compromise" put forward by rapporteurs on new code of access

28 March 2012

Introduction

The latest "compromise" draft of the European Parliament's report is dated 20 February 2001 (PE 294.327/1-30). This analysis assesses the "compromise":

Article 3 (Amendment 5.a.ii) - "sensitive documents"

The "compromise" suggests that "sensitive documents" should mean:

"any document classified by the institution concerned as "Top Secret", "Secret" or "Confidential" in the fields of internal and external security..."

Comments:

1. This seeks to create special exceptions for the second and third "pillars" which is not allowed for in the Treaty. The Treaty says that general rules must apply to these fields.

2. This definition is surprising as it goes well beyond the scope of the "Solana Decision" of 14 August 2000. It would extend the scope of "sensitive documents" beyond foreign policy and military matters to cover all justice and home affairs issues and any other issue of EU activity referred to (eg: trade and aid).

3. This could lead to extensive "contamination" and to the refusal of access to documents which are currently accessible (eg: Limite, SN documents etc). The link between the treatment of "sensitive documents" and their classification under "Top Secret", "Secret" or "Confidential" is not automatic, but highly likely.

The effect of this interface would be more far-reaching because under another Decision (amended solely on the signature of Mr Solana on 27 July) Article 3.1 of the "Decision on the protection of classified documents" says:

"Where a number of items of information constitute a whole, that whole shall be classified at least as highly as its most highly classified constituent item"

Thus if any set of "sensitivedocuments" contain a single classified document then all the documents have to be excluded from access. For example, if a single document in a set of documents covering "non-military crisis management" or justice and home affairs refers to a classified document the whole set is permanently excluded from public access.

4. By defining the scope of "sensitive documents" to include "internal and external security" (a terminology very familiar to researchers who have been working on justice and home affairs for decades) the report is giving a green light to the construction of a secret state.

5. The effect of this definition (and later references) depends also on the definition of the classification categories which are to be extended beyond "Top Secret", "Secret" and "Confidential" to include "Restricted" as well.

6. No distinction is drawn between policymaking and implementation (including operations). In general policymaking documents should be in the public domain so that citizens can know what is being planned in their name. In general operational documents clearly should not be in the public domain with the proviso that "operations" should, where necessary, be capable of being scrutinised post-operation in order to possibly reviewing the overall policy.

The definition of "sensitive documents" should be DELETED.

Article 3.ii.c

The proposed definition of "third party" would allow EU member states to claim to be "third parties". Member states comprise the Council of the European Union, their documents cannot be from "third parties" (see below)

Article 4.1

This should be amended. The burden of proof should be on the institutions to show that one of the exceptions applies and that there is no overriding public interest in access. The 2nd sentence should read:

"If disclosure would significantly undermine the protection of the interests specified below, access shall be denied providing that there is not an overriding public interest in the disclosure of the document."

AMEND

Article 4.1.a

The "compromise" proposes to extend the protection of the exceptions to the interests of "one or more Member States.."

This is goes well beyond the Council's own draft common position (SN 1715/01) which makes no reference to member states.

This should be DELETED.

Article 4.2

Under the current 1993 Decision documents may be refused, under Article 4.2 (in the Counilc's rules), to "protect the confidentiality of the Council's proceedings". The powers suggested here are potentially of wider application to refuse access. This is a clause giving the institutions the "space to think" and the "space to act" being discussed for inclusion in the new code.

The concept of any "space" is unacceptable, the only limit on access should be under the exceptions in Article 4.1. Officials, whether an individual or a "small group", are public servants and the product of their official work must be accessible. This provision would give very wide discretion to the institutions. It contains two elements. First, the discretion to refuse access to documents prior to the adoption of a measure where:

"the adverse impact of its disclosure on that institution's decision-making process outweighs the public interest in the disclosure of the document."

Second, after a measure has been adopted, where:

"exceptionally that disclosure would seriously impair its future ability to carry out its duties."

These discretionary powers are in addition to the exceptions set out in Article 4.1.

The practical effect of the first discretionary power look suspiciously like the proposal in the Commission's unpublished discussion paper which said:

"an embargo 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.. "

Source: Unpublished 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

It is unclear whether this provision, if it should remain, could be used to exclude documents from the register (see Article 9.1)

Both discretionary powers should be DELETED.

Article 4.3

Consultation between institutions over the application of the exceptions to a document is reasonable. But the receiving institution should have the final decision. The effect of the drafting is unclear. What does this mean?:

                         "unless it is clear that the document shall or shall not be handed out"

First, it provides for a situation where "it is clear" that a document "shall not be handed out" - but on what grounds?

Second, where it is not "clear" whether a document can be handed out the third party would be consulted with a view to applying the exceptions in Article 4.1.

DELETE first power.

Article 4.4

It is quite unacceptable for an EU member state to have a "veto" over access to documents. The EU member states comprise the Council of the European Union and when they submit documents to the Council they should only be subject to the rules of access to Council documents.

The only grounds on which access to a document should be refused are the exceptions under 4.1.

Documents submitted by member states to the policy-making process in the EU must, as a matter of principle, be accessible (subject only to the exceptions).

Such a provision leads to the ludicrous situation whereby a member state can first seek, within the procedure, to persuade the other member states to refuse access and, when this fails, assert its so-called "right" to deny access.

DELETE this provision.

Article 4.5

The decision whether or not to release a document must rest with the receiving institution which must only deny access where the exceptions in Article 4.1. can be applied.

AMEND

Article 4.6

This provision is double-edged. First, it provides for a situation where "it is clear" that a document "shall not be handed out" - but on what grounds?

Second, where it is not "clear" whether a document can be handed out the third party would be consulted with a view to applying the exceptions in Article 4.1.

The only grounds on which access to a document should be refused by the receiving institutions under the exceptions under Article 4.1.

DELETE the first power.

Article 4.a (new)

This covers applications for EU documents under national laws in member states. This needs to be amended so that the only grounds for the refusal are those set out in Article 4.1. providing that is permissible under national law.

What does the "applicable law" mean? The national law or some other undefined law? The only standard should be the national law of the state in which the application is made.

The term "loyalty" should be deleted - this concept is not in the present code.

AMEND

Article 7.1a

This needs to be amended to maintain the principle set out in Article 7.1. namely that access should be free of charge. This should be amended to read:

"If a document has already been released by the institution concerned, the institution my inform the applicant how to obtain the requested document free of charge including through the facilities of their Member States."

At present the Commission refuses access to original documents on the grounds that they have been published in the, expensive, Official Journal (even though essential references are missing) when the documents in question are available free of charge on the Commission's website.

An institution should not be able to discharge its duty to supply a document where the form it recommends is expensive for the applicant.

AMEND

Article 9.1

The 3rd sentence should be AMENDED to make clear that the registers must contain references for all documents:

"ALL documents shall be introduced on the register..."

Article 9.2

The second paragraph suggests that neither the references to document numbers nor the subject matter would be referred to on the public register if disclosure would undermine the exceptions in Article 4.

The current official policy of the Council (adopted on 19.12.99, under the Finnish Presidency) is that in such circumstances there should be a reference to the document number but not to the subject matter. This principle that the existence of a document should be acknowledged on the register is important.

AMEND

Article 9.3

Why is this restricted solely to "legislative documents"? The text of all documents, which are not subject to Article 4, should be directly accessible on the register. The institutions should not be allowed discretion on this issue.

DELETE

Article 9d(new)

Reproduction of documents: The EP have adopted the Council's formulation (it came in under the French Presidency) which says:

"This Regulation shall be without prejudice to any existing rules on copyright which may limit the recipient's right to reproduce or exploit the released documents."

1. There is one change in this report, the Council version says "the applicant's right" and this says "the recipients right"

AMEND to read "applicant's right"

2. This could include EU member state governments/agencies. There should be not restriction at all on the reproduction of public policy documents. The rights of individuals, like playwrights, songwriters etc, should of course be protected by law.

or better still DELETE and REPLACE with:

"1. An applicant who has obtained a document initially produced by a public body may reproduce it in any form if due credit is given to the source of the document.

2. An applicant who has obtained a document initially produced by a private entity may reproduce it subject to the applicable intellectual and industrial property laws, applied with due regard for publication of information in the public interest.

Justification

This Article should recognise expressly that documents produced by public entities with taxpayers' money are in the public domain, and so can be reproduced provided that the source is duly credited. However, documents produced by private entities might be protected by intellectual property law, but in such cases there might be a public interest justification for publication. (Source: "Our code: a code of access to EU documents for civil society")

Articles 10.2 + 10.3

Both of these provisions concern interinstitutional provisions which have no place in a measure concerning citizens rights.

DELETE both

Annex I.3

An extraordinary proposal which would give discretionary power to the Council to decide whether decisions taken by new bodies set up by the EU and "one or more States" (eg: EU and US) or the EU and an "international organisation" (eg: EU and NATO) should be published in the Official Journal.

DELETE