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• Analysis of the Decision of 14 August 2000 to amend the 1993 code of access to EU documents

Analysis of the Decision of 14 August 2000 to amend the 1993 code of access to EU documents

Document reference: 10702/00, 31.7.00.

Preamble

The fourth recital in the Preamble defines the underlying purpose of this proposal, it says:

"(4) The exchange of information in the particularly sensitive areas referred to in recital (1) [military and non-military crisis management], which is one of the features of the development of this new policy, will work only if the originator of such information can be confident that no information put out by him will be disclosed against his will. It is therefore necessary to provide that a Council document from which conclusions may be drawn regarding the content of classified information put out by a natural or legal person, a Member State, another Community institution or body or any other national or international body may be made available to the public only with the prior written consent of the author of the information in question."

This statement makes not distinction between policy-making (which properly belong in the public domain) and operations.

The implications of this statement is that if a document, or series of documents, contain contributions by another national body (eg: from the USA) or an "international body" (like NATO) then access is automatically denied to the whole document, or set of documents, unless, for example, the USA or NATO, agree in writing. This could completely undermine the public's right access to documents on issues such as those concerning "non-military crisis management" which interface with justice and home affairs (and civil protection) issues. See the new Article 2.3 below.

Article 1

The statement in the current Council Decision of 1993:

"The public shall have access to Council documents under the conditions laid down in this Decision"

is replaced by:

"1. The public shall have access to Council documents, except for documents classified as TRES SECRET/TOP SECRET, SECRET or CONFIDENTIAL within the meaning of the Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council, on matters concerning the security and defence of the Union or one or more of its Member States or on military or non-military crisis management, under the conditions laid down in this Decision"

1. a) This change fundamentally redefines the 1993 Decision whereby citizens could apply for any document held by the Council subject to the exceptions on Article 4 narrowly and specifically applied to exclude whole categories of documents permanently from the right of access.
2. b) since the Working Document of 12 July the category of "CONFIDENTIAL" has been added to the list of excluded documents.

Article 2

A new Article 2.3 says:

"3. Without prejudice to Article 1(1), no Council document on matters concerning the security and defence of the Union or one or more of its Member States or on military or non-military crisis management which enables conclusions to be drawn regarding the content of classified information from one of the sources referred to in paragraph 2 may be made available to the public except with the prior written consent of the author of the information in question.

Where access to a document is refused pursuant to this paragraph, the applicant shall be informed thereof"

The prior written consent of the author is required where a document comes from "a Member State, another Community institution or body, or any other national or international body" (paragraph 2) - this is relevant to the idea that incoming documents will be accessible.

The effect of this is to extend the categories of permanently excluded documents beyond TOP SECRET, SECRET and CONFIDENTIAL to any document - whatever its classification or indeed an unclassified LIMITE document from access if it falls within a batch of related documents from which conclusions can be "drawn regarding the content of classified information".

This is an example of how this proposal would "contaminate" the right of access to documents in general. Any document which refers, in any way, to a document concerning "security and defence of the Union or of one or more of its member States or the military and non-military management of crises" would automatically require the "prior written consent" of the "author" (eg: NATO, USA etc). With many documents now linking the second and third pillars (defence and foreign policy with immigration, policing and legal cooperation) for example, the High Level Group on targeted third countries, the "contamination" will affect many justice and home affairs policies.

The concept of "written" consent is entirely new.

Moreover, the general inclusion of "non-military management of crises" is particularly deceptive. This includes the use of EU police forces in the role of an EU para-military force, as agreed at the Summit concluding the Portuguese Presidency, some 5,000-strong (with 1,000 on stand-by), in third world and EU locations.

Article 3

Article 3.1 is amended to read (change in bold):

"1. The applicant shall have access to a Council document either by consulting it on the spot or by having a copy sent at his own expense. The fee shall be set by the Secretary-General/High Representative for Common Foreign and Security Policy (hereinafter to as the "Secretary-General")."

Article 4

Changes to the first indent of the exceptions under Article 4.1 to:

"- the protection of the public interest (public security, the security and defence of the Union or one or more of its Member States, military and non-military crisis management, international relations, monetary stability, court proceedings, inspections and investigations."

No explanation is given for the inclusion of the term: "non-military crisis management" (see above)

Article 5

This Article contains a new second sentence which says:

"The Permanent Representatives Committee shall see to it that the necessary measures are taken to ensure that the preparation of such decisions is entrusted to persons authorised to take cognisance of the documents concerned."

This adds to the first sentence which simply covers replies to applications for documents - it is not limited to military or so called "non-military" matters but is a general provision affecting all documents.

The instruction to COREPER (Permanent Representatives Committee of the 15 EU governments) is that the present system whereby the Press Officers of the permanent national delegation in Brussels deal with consideration of confirmatory applications (appeals against the refusal of access to a document)

[The "Explanatory Note" to the 12 July draft said that access to documents should considered by officials (police, immigration, customs, internal security agencies) and military personnel who are working on the issue should decide whether to give access - who have little interest in public access especially, in a democratic system, which may lead to a questioning of their views].

Article 6

No change

Article 7

Adds a new Article 7.5 saying:

"The extension may be for two months where it is necessary to consult a source other than the Council, as provided for in Article 2(3)".