BELATED DISclOSURE OF SECRET COUNCIL REPORT ON TRANSPARENCY
In mid October, the Council’s Permanent Committee of Representatives (COREPER) belatedly listened to reason and disclosed a previously secret report on public access to Council documents. The report shows that very few EU citizens are making applications for access. But those who do risk being considered tiresome busy-bodies.
The Report by EU Council’s Secretary General is from July 1996. But ironically, while the document is about the implementation of Council commitments to public access, the report was classified as confidential for several months at the insistence of France and the Netherlands. The French Government argued that the report should be disclosed only if its findings led to changes in the existing policy on access to documents.
Secret document on openness an embarrassment
COREPER’s recent about-turn may be attributed to the fact that the document was being widely leaked both by officials in Brussels and in a number of member states, and that the decision to refuse public access to a document on public access was beginning to cause major embarrassment to the Council at a time when the EU Intergovernmental Conference (IGC) is discussing the need to insert principles of openness and transparency into the revised Treaty on European Union (TEU: Maastricht Treaty).
Only 142 applications for access in two years
A major part of the report focuses on statistics regarding applications made by the public and their handling by the Council administration in 1994 and 1995. In this period, only 142 applications, covering a total of 378 non-public Council documents were made. Most requests were tabled by academics (27%), lawyers (23%) and journalists (23%). Most applications concerned documents in the areas of Justice and Home Affairs (JHA) and Institutional Affairs and Information Policy. A favourable reply was given for 222 documents, i.e. 59%. The quota of favourable decisions concerning JHA documents does, however, not follow from the report. We may assume that it is considerably lower than the average in this area, traditionally marked by secrecy.
Council anxious to protect confidentiality of its proceedings
The General Secretariat’s refusal to grant access was confirmed by the Council in respect of 10 confirmatory applications (i.e. complaints against refusal). The Council gave applicants full or partial satisfaction in six other cases.
Refusal of access was most often based on grounds such as the "protection of the confidentiality of the Council’s proceedings" and the "protection of the public interest (including public security, international relations, court proceedings).
Need for a register of Council documents
The report notes that applications for access are often too vague to enable easy identification. Thus, for example, an application for "all texts in connection with the Europol Convention" is likely to be turned down for lack of precision. The report underlines that a request by the General Secretariat for the application to be more specific "may not be construed as a refusal" permitting a confirmatory application. The problem for applicants is that they often have no way of knowing whether, and eventually which, documents on a particular subject actually exist. In this connection, the report cautiously suggests that "consideration might be given to the possibility" of establishing a complete register of Council documents. Proposals to this effect have been made by Sweden, where such registers are mandatory under national freedom of information legislation and have proven to be instrumental in enabling public access in practice.
Council impertinence against British journalist
The report points to the fact that prevailing rules do not enable the Council to deal with "excessive" applications and contends that "the very nature of certain applications sometimes elicits the thought that steps are being taken to test the system rather than exercise a legitimate option". As an illustration the report mentions the example of "a single applicant" who alone applied for access to "more than one third of all documents requested by all applicants" during the two-year period under review. The report concludes that provisions should be considered to the effect that applications which are "manifestly excessive or involve disproportionate costs" are refused, "where appropriate, after examination of the reasons for the applicant’s interest".
The "single applicant", who seems to have irritated Council officials by his frequent requests, is undoubtedly none other than Tony Bunyan, the editor of the British bulletin Statewatch, who has been engaged in a number of secrecy disputes with the Council. To label Mr Bunyan an "excessive" and "illegitimate" applicant is simply impertinent. Statewatch is one of the few publications providing in-depth information on Justice and Home Affairs cooperation in the EU on a regular basis. The irritation revealed by the report about a journalist, whose only crime consists in doing his job of informing the public, speaks volumes about the Council’s understanding of transparency. As for documents whose disclosure, in the view of the Council’s staff, involves "disproportionate" costs and work, a comment of Steve Peers, Director of the Centre for European Commercial Law at the University of Essex hits the nail on the head: "If photocopying documents takes up a lot of [Council officials’] time, the answer is to place all Council documents on the Internet".
The Council’s conclusions from the Journalisten case
The report stresses that "documents containing legal positions of the Council Legal Service should not be released to the public, since, if the Council subsequently departed from the position of the Legal Service, any defence of the Council in a dispute would prove difficult precisely since such defence is provided by its Legal Service". The report therefore recommends that "protection of public interests" as a ground for refusing access should comprise "legal certainty". This recommendation clearly reflects to the case of Journalisten, the weekly of the Swedish Union of Journalists, which filed a complaint to the European Court of Justice following the Council’s refusal to disclose a number of documents on Justice and Home Affairs cooperation (see FECL No.41: "Swedish journalists challenge EU Council on secrecy"). The Council replied with a statement of defence prepared by its Legal Service. In strict compliance with Swedish freedom of information rules, Journalisten put this document on the Internet - a move that is said to have caused hysterical outbursts among officials of the Legal Service and Council staff.
Swedish freedom of information policy upsets the Council
Regarding the substance of the Journalisten case, the report says: "Attention is drawn to the fact that the purpose of Decision 93/731/EC [of 20 December 1993 on public access to Council documents] is that the Council should consider whether to agree to a request for access to its documents, in accordance with its own pre-determined rules. Decision 93/731/EC itself would be superfluous if the applicant were able to obtain the document through a civil service despite a decision to the contrary by the Council". This refers to the fact, that the Swedish Government granted Journalisten to most of the Council documents whose disclosure the Council itself refused.
The cumbersome work of denying information
The report notes that the vast majority of Council documents refer to its proceedings or preparatory discussions of its various bodies. Protection of the "confidentiality of the proceedings" is therefore a frequent reason for denying access. Applicants then often make a confirmatory application entailing a cumbersome procedure involving experts, Ambassadors (COREPER) and Ministers (Council). The report therefore recommends that certain categories of documents denied on confidentiality of proceedings grounds be made accessible to the public, once the Council of Ministers has taken its decision on the issue involved.
The recommendation only confirms that the Council still is miles away from an understanding of the principles of open government and democratic accountability. It should be obvious that public access to documents makes little sense when it is limited to decisions which have already been taken. And indeed, the real purpose of the recommendation is not to extend public access, but to spare Unions civil servants and ministers some "cumbersome" work in maintaining secrecy.
Sources: Report by the Secretary General on the implementation of the Council decision on public access to Council documents, July 1996; European Voice, 3-9.10.96, 10-16.10.96.