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Public access to documents: towards more transparency in the EU
The scope for restricting public access to documents held by EU institutions would be severely curtailed by amendments, made by the Civil Liberties Committee on Wednesday, to a draft law on public access. The committee's bid to thus enhance transparency, accountability, and democracy in the EU will be put to a plenary vote in December.
The Lisbon Treaty created a new legal framework for access to documents and the now legally-binding Charter describes such access as a "fundamental right". The citizens' right to access to documents will cover all the EU institutions, bodies, offices and agencies, and not only the European Parliament, Council and Commission, as was hitherto the case.
The purpose of the amended version of Regulation 1049/2001 is to give the fullest possible effect to the right of public access to documents and to lay down general principles and exceptions to such access on the grounds of public or private interest.
"The committee has today sent a powerful message to the Commission and the Council that the European Parliament will not agree to dilute the existing rules and, on the contrary, wants us to be more transparent for our citizens.
What we are talking about is a right that allows citizens to make sure that we are accountable: parliamentarians accountable for what we do in their name, the Commission for what it does in their name, and, equally, the Council of Ministers.
How can citizens do that if the way we work and who does what within all of the different institutions, agencies, offices and bodies remains a well-kept secret, open only to those who know? If the plenary backs this progressive approach with a strong majority, we will enter the fight with the Council in a very convincing position", said Civil Liberties Committee rapporteur, Michael Cashman (S&D, UK).
What is a "document"?
MEPs inserted a broader definition of "document" - a concept that lies at the very heart of the regulation - than that proposed by the Commission.
Any data content, whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording), concerning a matter falling within the sphere of responsibility of an EU institution, body, office or agency would be considered a document. Data contained in electronic storage, processing and retrieval systems, including external systems used for the institution's work, would also constitute a document.
The amended regulation would apply to all documents "held" by an EU entity, MEPs underline, i.e. documents drawn up or received by it and in its possession, in all areas of activity of the EU. It would also apply to the European Court of Justice, the European Central Bank and the European Investment Bank, but only in the course of the performance of their administrative tasks.
More user-friendly access
MEPs also inserted amendments to make accessing documents as easy and user-friendly as possible. Documents would have to be made accessible to the public either in electronic form, in the EU Official Journal, in an official institution's register or following a written application. Documents drawn up or received in the course of a legislative procedure would always have to be made directly accessible on the Internet.
Exceptions to the right of access
In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests (e.g. public security, intellectual property rights, etc), could be protected by way of exceptions. MEPs amended the proposal in order to clarify and limit such exceptions.
The exceptions would not apply to documents transmitted in the context of legislative procedures or for the purpose of influencing policy-making by lobbyists and other interested parties, MEPs underline.
Moreover, the exceptions would apply only for as long as is justified by the content of the document and in any event for a maximum of 30 years.
"Overriding public interest in disclosure"
Furthermore, these exceptions could not apply if there were an "overriding public interest in disclosure". This interest would be deemed to exist where the document requested relates to the "protection of fundamental rights and the rule of law, sound management of public funds, or the right to live in a healthy environment, including emissions into the environment".
An institution invoking one of these exceptions - fundamental rights, public funds, environment - would nonetheless have "to make an objective and individual assessment and show that the risk to the interest protected is foreseeable and not purely hypothetical, and define how access to the document could specifically and effectively undermine the interest protected".
The committee also inserted a new rule on the procedure to follow for using the classification - "EU top secret", "EU secret", "EU confidential" and "EU restricted" - and the declassification of documents.
An institution could classify a document only where its disclosure would undermine the protection of the essential interests of the EU or of one or more of the Member States, MEPs say, notably in public security, defence and military matters.
Documents originating from Member States
Member States should not have a right to veto access to documents originating from them, nor a right to refer to provisions in their own legislation in order to justify confidentiality. They would however have to be consulted in order to assess whether one of the exceptions foreseen by this regulation is applicable.
Another amendment provides that information relating to the EU budget, its implementation and beneficiaries of EU funds and grants shall be made public to citizens.
A minority statement will be made by the EPP group, announced Renate Sommer (EPP, DE) after the vote. The group voted against the report, which was adopted with 33 votes in favour, 17 against and 2 abstentions.
This file has a long legislative history. The initial recast proposal on Regulation 1049/2001 was presented by the Commission in 2008. In 2009, Parliament adopted amendments in plenary session without voting on the legislative resolution, whereupon the matter was referred back to the Civil Liberties Committee.
The proposal was not withdrawn with the entry into force of the Lisbon Treaty, despite substantial changes in the area of access to documents. Mr Cashman presented his draft report in May 2010. As important changes occurred thereafter (European Court of Justice case law and a new additional Commission proposal), the rapporteur presented a second version of the draft report, which was put to a committee vote yesterday.