Magazine leak inflames battle over openness

Date: 16/05/1996

By Ole Ryborg

THE intensifying debate over the public's right of access to EU documents has been ignited by a furious dispute between the European courts and a Swedish magazine accused of breaching the strict confidentiality rule which governs all cases brought before the courts.

The controversy could threaten Sweden's 200-year-old freedom of information act and force it - along with other Scandinavian governments with long-established traditions of openness - to change national laws on access to documents.

The dispute has been sparked by the in-house journalists' magazine Tidningen Journalisten, which is challenging the Council of Ministers' policy on access to documents in the EU's Court of First Instance.

In a breach of the Court's own rules which state that all written submissions concerning cases under consideration must remain confidential, the magazine published an edited version of the Council's defence submission on the Internet.

Stockholm became embroiled in the controversy after handing the document over to another journalist who requested a full transcript from its justice ministry.

Acting on complaints from the Council's legal service, the Court has taken the unprecedented step of suspending the case pending an investigation.

In angrily-worded letters to the magazine and Stockholm, the Court is demanding to know how the document came to be published and has threatened to throw out the case if it is not satisfied with the answers.

Swedish and Danish officials fear the Court could go further by ruling that no national law in an EU member state can allow access to secret court documents. This could spark a backlash in countries where the lack of openness in EU decision-making has long been a big domestic political issue.

The dispute centres on a case brought before the Court by the magazine, which is challenging a decision by the Council to refuse to hand over all but four of 20 documents concerning Europol requested by its journalists. A similar request to Swedish and Danish authorities resulted in 18 of the papers being handed over.

The case is now at the written procedure stage, during which all contributions from parties to the case are regarded as confidential.

Despite this, the magazine published an abridged version of the Council's defence statement on the Internet, handed over a copy of the full submission to the Stockholm authorities and told anyone who wanted to see the document in full to send an e-mail to the head of legal services at the Swedish ministry of justice.

Just 24 hours after the document was given to the ministry, another journalist asked for a copy and, despite suspicions among ministry officials that they might have been set up, they agreed to his request.

The magazine then used this in its public fight for greater openness in Union decision-making, advising Internet readers that the document could be obtained from the ministry “under the Swedish principle of public access to official records” and pointing out that another journalist had already successfully applied for it.

The Council's legal service has complained that not only has the Court's confidentiality rule been breached, but also that the edited version of its submission placed on the Internet does not set out its reasoning in full. It has also reacted angrily to the magazine's decision to publish the names, telephone and fax numbers of two Council officials, inviting readers to send them any comments they may have.

Tidningen Journalisten editor Lennart Lund said this week that the document would be removed from the Internet, but claimed the magazine was not aware that it had breached the Court's rules by publishing the submission.