EU must not deny people’s right to know

Date: 08/02/01

THE principle of freedom of information is in the first article of the current code of access to EU documents. Citizens have the right to request any document, subject only to very specific and narrow exceptions, held by a Union institution.

The current code has been in place since 1993 and its operation has been greatly improved by challenges in the Court of First Instance - part of the European Court of Justice - and to the European Ombudsman.

These initiatives, backed to varying degrees by six member states - Denmark, Finland, Sweden, the Netherlands, the UK and Ireland - have led to significant improvements. The other nine member states, led by Germany and France, have consistently opposed more openness.

The commitment made in Amsterdam in June 1997 was intended to "enshrine" the citizens' right of access to EU documents. It was meant to build on the existing code and practice and turn it into a true freedom of information law.

This would have meant opening up to public view - subject to specific and narrow exceptions - thousands of documents influencing policy-making not on the agendas of Council of Ministers meetings. For instance, it would include European Commission inter-departmental consultations, reports on policy implementation, correspondence between institutions and third parties - and much more.

However, none of these advances is on the agendas of the three institutions - the Council, the Commission and the European Parliament - charged with agreeing the new code under the co-decision procedure by 1 May.

Instead, the Amsterdam commitment is being used to turn the clock back. All the draft proposals from the three institutions want to introduce a "space to think" for officials (public servants) and to remove the principle of the right to ask for any document held.

The current draft common position of the Council would permanently exclude from public access these "space to think" documents, including discussion documents, opinions of departments, preparatory documents, documents in preparation, or texts that express personal opinions reflecting views as part of preliminary consultations or deliberations within the institutions (reports and correspondence).

It would also exclude documents covered by "third party" vetoes, including those from non-EU states such as the US, international organisations and agencies (such as NATO or G8).

And the following documents would be subject to special procedures: all 'Top Secret', 'Secret' and 'Confidential' documents concerning foreign policy, military policy, non-military crisis management (including policing, border controls, trade and aid) and any document referring to them.

The status of "third parties", with the right to veto access to documents, is also to be given under the Council draft to individual member states. If a government submits a document on EU policymaking with a view to changing or influencing it, then it should clearly be in the public domain.

The idea that a member state (a government) has the same rights of authorship as a playwright or a song-writer is sheer nonsense. Government and EU documents are submitted in the name of the people; they are not the product of individual endeavour.

The Council draft also seeks to introduce what has been long feared: a veto by the Brussels-based institutions over access to EU documents requested by citizens under national laws on freedom of information.

The exclusion from public access to "space to think" documents will also exclude "space to act" papers concerning the implementation of policies once adopted. It should be inconceivable in a democracy that governments, whether national or European, would seek to be so unaccountable, so removed from public scrutiny. But that is what is being proposed.

And where does civil society, the "fourth party" to the discussions, come into the equation? The answer is that it does not. The Commission never published a discussion paper to elicit views and reactions from civil society.

The Council has been discussing its draft position behind closed doors (leaked drafts of the Council's position can be accessed on the Statewatch website at www.statewatch.org/news).

The incoming Swedish presidency inherited a draft common position from the French with which it disagrees. Faced with an impossible timetable and the positions of all three institutions being quite different on fundamental issues, it has been decided to hold a series of three 'trilogue' meetings in order to reach a "compromise".

Of course, these meetings too are being held in secret, behind closed doors, with the objective of producing a deal by the end of this month - leaving just enough time to complete the formalities by 1 May. So much for openness!

The new code raises wider issues than simply access to documents or freedom of information, issues that concern the democratic future of the EU.

When Statewatch applied for a document setting out far-reaching changes to the 1993 code of public access to EU documents in July (the now infamous 'Solana Decision') the Council said its release "could fuel public discussion on the subject". It is hard to think of a more undemocratic argument.

Access to documents is fundamental to a healthy, critical and thriving democracy. It enables civil society to understand, analyse and participate in a discussion.

People have a right to know all the views considered and rejected and all the influences brought to bear on policymaking. They have a right to see these documents as they are produced or received - not after a new policy is adopted, but before.

Access to documents does indeed "fuel public discussion" and so it should.

The resolution of this issue will be a defining moment for the EU. The argument is very simple: in a democratic system, citizens have a right to know how and why decisions are made. Without freedom of information, access to documents, there is no accountability and without accountability there is no democracy.

As long as I can remember there has been a 'democratic deficit' in the EU and there still is even as the Union prepares for enlargement.

The 'democratic deficit' is not just about the powers of parliaments - national or European. It is much deeper than that. It is about changing the democratic culture into a culture of openness, of an informed public and responsible and accountable institutions.

Many suspected that the "dinosaurs" (to use the European Ombudsman's phrase) would come out of hiding. Officials and vested interests would try and use the commitment in Article 255 of the Amsterdam Treaty not to "enshrine" the right of public access but to limit and shackle it - to end up with not a code of access for citizens but "A Regulation for the Protection of the Efficient Workings of the Institutions".

Unless there is a dramatic turnaround this is exactly what we will get and democracy will be the poorer. We will have a new code of access to documents that is worse than the present one and we will not have freedom of information. lA seminar on the new code of access, organised by Statewatch and the European Federation of Journalists, takes place in the European Parliament on 27 February.

Commentary in which the author argues that democracy and accountability must be the cornerstones of the EU's new code of access to documents.