Balancing the freedom to access information

The European Commission is currently examining submissions made in response to its public consultation on improving access to documents.

Launched in April, with the date for final submissions on 15 July, the Commission said it wanted to gauge the opinion of interested parties on whether there should be greater emphasis on disseminating information and how freedom of information can be balanced against the right to privacy and commercial sensitivities.

The consultation will result in a review of the current regulation that has been in place since 2001, which governs the public’s right to have access to Commission, European Parliament and Council of Ministers documents. The regulation allows any EU citizen to request access to documents, including classified documents. Institutions must respond to the request within three weeks, with an additional three weeks allowed if there is an outstanding reason for the delay. Documents can be refused for certain reasons laid down in the regulation but citizens can appeal against the refusal to the European ombudsman or the European Court of First Instance.

But many believe that the regulation does not provide enough access to documents. In his submission to the Commission’s public consultation Nikiforos Diamandouros, the European ombudsman, highlighted the problem associated with the ability of member states to veto public access to its documents at EU level without giving reasons. "Legislative action is needed to tackle the fundamental problem of making the interactions between different levels in the Union more transparent for citizens," the ombudsman stated in his submission.

He also called for shorter time-limits for institutions to reply to citizens who complain when access to documents was refused. It usually takes three months for the institutions to reply to an inquiry by the ombudsman, with the Parliament and the Commission agreeing to reduce this to two months - a time-limit Diamandouros still thinks is too long. "Citizens, NGOs, enterprises or other organisations who turn to the ombudsman after an institution has refused access to certain documents should not have to wait months for the EU institution to explain its position," the ombudsman said.

Interested parties have highlighted other problems with the current regulation. Oliver Hoedeman of Corporate Europe Observatory (CEO), the transparency campaigning group, said that the regulation was interpreted differently across the various departments of the Commission, leading to differing degrees of implementation. Some departments responded to requests for access within the allotted three weeks while others took months to respond. "Whether it is because they are understaffed or whether it’s political opportunism the regulation is far from being implemented," he said.

Some refused documents more than others and some had even taken to blanking out information on documents which were released (see below) - a practice CEO says is contrary to the 2001 regulation.

Often the degree of transparency came down to which commissioner or Commission president was in power, said Hoedeman. "[Previous Commission president Romano] Prodi used to list his incoming and outgoing mail and we thought this was a good idea and a step forward. But since [José Manuel] Barroso took over the position the practice has not been followed," he added.

The types of registers for documents differed not only across the EU institutions but within the Commission itself, again leading to different standards in transparency, said Hoedeman.

A Commission spokes-man said that the secretariat-general dealt with all appeals against refusals to grant access to documents and that ensured a coherent approach.

"We feel the system works," he said, adding that though there might be occasional problems, access to documents had increased transparency and was helping to reinforce confidence in the EU.

Secrecy and public interest

It is not just the issue of access to documents that is a prominent one at present: how the documents are presented is also currently in the spotlight.

Nikiforos Diamandouros, the European ombudsman, in July criticised the European Commission for blanking out the names of lobbyists in documents that were made public. A complaint was brought by transparency campaigners Corporate Europe Observatory in October 2005 when the Commission’s trade department had started releasing documents into the public domain but with the names of industry lobbyists in correspondence, minutes of meetings and other documents blanked out. "The practice of systematically blanking out names of lobbyists is wrong," said Diamandouros.

The Commission said that data protection rules prevented it from violating the privacy of those lobbyists concerned. Disclosure of the names would "undermine the protection of the privacy and the integrity of the individual", the Commission argued.

In response the ombudsman said: "This public interest should overrule any potential wish for secrecy by the lobby groups and their representatives. Secrecy is clearly not a legitimate interest for those engaging in influencing the EU decision-making."

The ombudsman has decided not to take any action at present because of a case, brought by the Bavarian Lager Company, on which the European Court of Justice is to rule later this year. The firm, which imports German beers into the UK, is challenging the Commission’s refusal to disclose the full minutes of a meeting between the Commission, the UK government and breweries, after some names were blanked out.

The European Commission is currently examining submissions made in response to its public consultation on improving access to documents.