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New EU Regulation on access to documents - first assessment

28 March 2012

• The first major problem is going to be what will, and what will not, be on the public registers of documents
• The second will be the exclusion of "internal documents"
• The third will be the right of "third parties" (like the US) to veto access to EU documents

The new Regulation (1049/2001) on public access to EU documents came into effect on Monday 3 December 2001, see FOI in the EU for its text and the three institutions' internal rules on access.

The position and practice of the Council of the European Union is pretty clear. Its internal rules of procedure follow almost exactly the terms of the new Regulation. The Council also has had a public register of documents on the internet since January 1999 (there are some criticisms of this see below).

The positions of the European Commission and the European Parliament are less clear especially as neither has a public register of documents. Both are obliged to make available a public register by June 2002.

What will be on the European Commission and European Parliament public registers?

Article 11 of the new Regulation states that each institution shall provide a public register, that "references to documents shall be recorded without delay" and that the registers must be operational by 3 June 2002.

Quite extraordinarily the Commission Rules of Procedure say:

"The coverage of the register provided for by Article 11 of Regulation (EC) No 1049/2001 shall be extended gradually" (emphasis added)

For the European Parliament its formally adopted "Register of references" make no such limitations. However, its internal discussions indicate that there are at least four categories of documents which will never be made accessible to the public. By June 2002 it is planned that the parliament's public register will only cover legislative documents under what is called a "minimal" plan. Stages two and three will follow at some undefined point in time.

What's on the Council register?

Only the Council has a public register of documents - covering documents archived since January 1999. Its register only include non-classified documents. In December 2001 a total of 1,195 documents were listed as having been archived during the month. During December the the full-text was available for 735 documents and not available for 460 documents, 62% were available and 38% were not - and some of those were made available were the result of people making applications for their release.

The new Regulation allows for "partial access" to documents. ie: the contents of a document not covered by one of the exceptions. The Council register notes the partial relase of a document but, instead of giving direct access online, a person has to apply for it even though it has already been "released".

Deviations from the new Regulation in the European Commission and European Parliament implementing rules

While the Council's implementing rules follow the structure of the new Regulation those of the other two institutions do not. For example, both the Commission and the European Parliament have introduced a new, and unfounded, power to exercise discretion where an application for documents is: "complex" (Commission Article 2/EP Article 3) - there is no such concept in the Regulation.

Surprisingly the European Parliament rules seek to establish a further discretionary power under Article 23 of its rules covering "repeated or successive applications concerning very long documents or a large number of documents". The issue of "repeated" applications was the subject of a successful complaint against the Council by Statewatch through the European Ombudsman and the substantive idea was deleted in the negotiations on the new Regulation. Diligent researchers will often make "repeated" and "successive" applications for a large number of documents and it should not be the prerogative of an institution to decide how many documents should be made available.

The European Commission is clearly reluctant to admit that it lost its demand that institutions and officials should have an automatic "space to think". The Regulation says, in Article 4.3 para 1, that a document can be refused before a decision is taken "if disclosure would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure" (emphasis added) and Article 4.3 para 2 says that documents "containing opinions for internal use as part of deliberations and preliminary consultations 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). In short two tests are laid down, first that the release a document must "seriously undermine" the decision making process and second, that a view must be taken as to whether there is anyway an "overriding public interest" in disclosure.

Under Article 9 ("Documents directly accessible to the public") of its rules the Commission states that documents can be made available after adoption by the Commission (or Council) where it is clear that none of the exceptions in Article 4 of the Regulation apply and: "provided they do not reflect opinions or individual positions".

This is clearly an abuse of the new Regulation. The only basis on which documents for so-called "internal use" ("opinion or individual positions") can be refused is under Article 4.3 of the Regulation as set out above. There is no power whatsoever which suggests that "opinions or individual positions" are additional grounds for refusing access over and above Article 4.3.

This confused Commission position is also reflected in its: "Access to European Commission documents - A Citizens Guide" on its Access to documents webpage (see below). Under the heading: "In practice, what kind of document can the Commission refuse to release?" it says access might be refused where a document: "expresses the personal opinions of Commission officials or advice from a Commission department". Taken literally this could mean that all preparatory documents prior to the adopted version could be refused. The Citizens Guide defines an "internal document" as one which "has not been finalised or is not intended for publication" and gives examples including: preliminary drafts, interim reports, draft legislative proposals or decisions, memorandum or studies which form the background to Commission decisions and policy measures and correspondence.

The Commission is not alone is trying to hide from public scrutiny so-called "internal documents", the European Ombudsman has made a Special Report to the European Parliament, on a Statewatch complaint to him, on exactly this issue concerning the Council's refusal to give access to thousands of "Meetings documents", "Room documents" and "SN documents": see: Special Report by the Ombudsman

The problem with an institution telling you where you can find a document

In the first week of January Statewatch requested a copy of the Commission's internal rules, which according to its webpage were attached to: "Access to European Commission documents - A citizen's guide" but were not. A request for this document resulted in being given a weblink to the document with an e-mail - the link does not work.

The right of "third parties" to veto access to EU documents

Under the new Regulation "third parties", which includes EU member states, other "states" (like the US) and international organisations (like NATO), are given the right to veto access to EU documents. The first case to arise is the US veto on a Statewatch application for access to agendas of EU-US high-level planning meetings, see: US veto Statewatch request

The European Commission has produced a: Access to European Commission documents - A Citizens Guide to on its Access to documents webpage - this should be read with caution (see above).