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Transparency in the European Union still problematic (1)

01 April 2003

Transparency has increased in the European Union, as sofar is it has become somewhat
easier to search for and request specific documents. But the accessibility of the requested
documents has not increased correspondingly.

This conclusion is made by the International Federation of Journalists, who asked Danish
and Swedish researchers to look into the effects of the new European rules on openness,
which came into force in 2001. In order to test the usefulness of the new rules, access was
requested to three different kinds of documents in three different policy areas. Documents
indicating the position taken by a Member State were not released, since it is assumed that
this would make decision-making in the Council more difficult. Also no part of any
document on anti-terrorism measures was released, as this would jeopardise public safety. According to the study, 'concern for the prejudicial effects of releasing a document seems to
weight as heavily as or more heavily than the specific content of the document.'

A stunning example of how openness on all documents relating to anti-terrorism measures is
being denied can be found in a recent request I made to get the evaluation of national
anti-terrorism measures. In September 2002 the Council send a 'questionnaire on peer
assessment of national terrorist arrangements' to the Member States of the Union. The
questionnaire mainly focused on all sorts of legal questions, like: what is the current legal
basis for anti-terrorist action in your country and how are terrorism/terrorist acts defined;
does your legislation include specific provisions ("universal jurisdiction") to prosecute
terrorist acts committed abroad by nationals and/or by foreigners against national interests;
has your country assessed new legal provisions in order to improve the fight against
terrorism both at national and international levels, especially in the following fields:
interception of communications, cybercrime, legal obligations for internet providers/telecom
operators, list of terrorist organisations, fight against the financing of terrorism, CBRN
terrorism, information and data exchanges within the EU MS and with Third countries?

Other questions focussed mainly on organisational matters, like: which ministries are
involved in the fight against terrorism and which one has the lead; what are their respective
competences; how has a co-ordination body been set up at inter-ministerial level; if so, what
is its remit and membership, and has it a permanent character; how are suspected terrorists
prosecuted? in comparison with criminal offenders, are there special criminal procedures or
substantive provisions e.g. in the field of pre-trial/custody, penalties, and liability of legal
persons; do you have specialised prosecution units/magistrates and what are their
competences?

I asked for the release of two documents, which summarised the outcomes of this
evaluation. But access was fully denied on the grounds of article 4(1) of the regulation on
public access: protection of public interest as regards public security:

"If sensitive information of this kind were to be disclosed, the relevant authorities
might regard this as a breach of their trust and in the future be less inclined to
provide such information, which in turn would be contrary to the public interest of
combating terrorism effectively", the General Secretariat of the Council of the European
Union argued.

I appealed to this decision, because almost all of the questions in the questionnaire related to
legal provisions, and the legal competence and powers of bodies involved in the field of
anti-terrorism. In short, these are by their very nature public matters and should be available
in any democratic society.

As a result, I go