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EU: Plan to restrict access to documents - Brussels officials'freedom of thoughtto be protected - no public access untilmeasures adopted

01 November 1999

Statewatch has obtained a copy of the draft Regulation being worked on by the European Commission which will govern public access to documents. Under the Amsterdam Treaty the Commission is responsible for drawing up a draft Regulation which then has to be adopted - by the co-decision procedure - by the Commission, the Council and the European Parliament (Article 255 of the Amsterdam Treaty). When adopted the Regulation will apply to these three institutions. The draft, rather than "enshrining" the citizens' right of access to documents, completely undermines the intent and spirit of the Amsterdam Treaty (see Statewatch, vol 9 no 2).

Under the draft Regulation Statewatch would not have been able to get an official copy of the draft prior to its adoption (Article 1) and if it had would be forbidden from "reproducing" it (Article 8). Tony Bunyan, Statewatch editor, said: "We have obtained a copy and we intend to ensure that it is "reproduced" as widely as possible so that civil society can express its anger that such a proposal could even be considered in a democratic Europe."

"freedom of thought" for officials

Under the current codes of public access to documents (agreed in 1993) the citizen can apply for any document - subject to narrowly defined and applied exceptions. Under the draft Regulation two categories of documents, the majority, are to be automatically excluded from the right of access.

First, "working documents" and discussion papers are to be permanently excluded from access in order that the officials in the institutions "are free to hold preliminary internal discussions" (translated another way this could read to protect the "freedom of thought" of officials). This category would also include reports on the practice which flows from the adoption of measures/Regulations/Directives. The second category to be excluded from access are "working documents" prior to the adoption of a decision. This would exclude civil society from playing any role in policymaking.

The draft also i) seeks to place a "gag" on national freedom of information law by imposing the same rules of access to the institutions documents at national level - this is likely to be reject by Scandinavian countries; ii) to introduce new exceptions allowing access to be refused, for example, in order to protect "the stability of the Community legal order"; iii) new discretionary powers would be given to the institutions to deal with "repeated requests" - an issue Statewatch took to the European Ombudsman and won; iv) a completely new provision would forbid applicants from "reproducing" documents obtained - this would outlaw the photocopying of documents by lecturers, students, journalists and activists.

Failure to consult

The European Commission has known since June 1997, when the Amsterdam Treaty was signed by the 15 EU governments, that it was responsible for drawing up the new Regulation - which will have the force of community law. For such an important decision it would have been usual for the Commission to published a discussion paper ("communication") to consult civil society before adopting a draft regulation. A draft discussion (also "leaked" by Statewatch) was heavily criticised by NGOs, voluntary groups, lawyers, academics and MEPs and withdrawn in June 1999. The failure to put out a discussion paper has excluded civil society from any say even in this decision. Tony Bunyan said: "If the Commission does adopt this draft the European Parliament should send it straight back as an unacceptable basis for discussion."

see Statewatch's Secret Europe website