EFJ - Brussels, 1994
The International Federation of Journalists, representing more than 180,000 journalists in 34 countries of Europe, believes the people of Europe have a right to know how political leaders, acting in their name, are reaching the decisions that will affect the lives of millions.
We call, therefore, for legal guarantees of a public right of access to information from public and private authorities.
The IFJ notes how the paucity of information and public debate within Europe which characterised the ratification of the Maastricht Treaty is clear evidence that European political authorities must act urgently to improve the free flow of information in the public interest.
We are particularly concerned at the failure of the Council of Ministers of the European Union to honour its public commitment to open government. Despite the elaboration of a code designed to facilitate public access to documents, the Council of Ministers remains the only legislative body in Europe which functions in secrecy.
The IFJ believes that exceptions to the automatic public right to information should be kept to a minimum and defined in specific terms to ensure that ambiguous and unclear exceptions are not misused by legislative bodies to hide information of public interest.
The IFJ deplores the fact that journalists and media organisations are forced to go to law to try to obtain information from the Council of Ministers which should be freely available.
The IFJ calls upon the Council of Ministers to agree to the following
minimum demands which will provide some guarantee of openness and a degree of transparency in the work of the European Union:
Access to all minutes of the Council of Ministers.
Publication of voting records and declarations by Member States on all Council decisions.
Access to all documents from Coreper to the Council (including A?points, briefing notes, etc) which should be made available, wherever possible, before the Council meets.
Publication of registers of documents held by the Council (as is the practise in Sweden).
Publication of lists of members of all important committees designated by the Treaties or set up as advisory bodies reporting directly to the Council, including COREPER (permanent representation of the member states to the European Union), COPO (political committee), Monetary Committee, K4, special agriculture committee (CSA) and economic and policy committee.
Access to the official Agenda Items for discussion by these bodies.
Guidelines for Journalists To Obtain EU Documents
In December 1993 the EU Council of Ministers and the Commission agreed a joint code of conduct to improve public access to official documents. It was meant to answer criticism that they were remote institutions with something to hide.
Under the old system, all documents were confidential unless someone in authority decided to publish them. Under the new system, everything was to be made available on request unless disclosure was damaging.
The question is, does this apparent conversion to open government make any difference?
Although the code is designed for all citizens, it seemed to be of special interest to journalists. It offered new opportunities to use initiative to bring EU documents into the public domain. Requests for information could be tailored to meet anyone's particular news values and there could be a story if the documents were provided ?? or even if they were not. A professional interest in how far journalists could assist in promoting the public's right to know was also at stake.
Early attempts by some of our colleagues have not been encouraging. Indeed, one of the British newspapers ?? the Guardian ?? is taking a case to the European Court to challenge the Council of Ministers' restrictive interpretation of the code and the chaotic way it went about reaching its decisions.
But the avenue remains open for journalists to use the code ?? and to contribute to the cause of freedom of information while doing so. Either we get more disclosure, or we expose the rhetoric of greater transparency as a sham.
The Council of Ministers and the Commission adopted separate procedures for implementing the code. This guide for journalists on applying for documents examines each in turn.
1. THE COUNCIL OF MINISTERS
Applications for documents should be addressed to the Secretary General of the Council of the European Union, 170 rue de la Loi, 1048 BRUSSELS, Belgium.
Applications should be as precise as possible in describing the material requested, but they do not have to stipulate document numbers. It will be useful to mention that the application is made under the terms of the Council decision of December 20, 1993, on public access to Council documents.
(Those wishing to add a knowledgeable flourish can quote its reference number ?? 93/731/EC. A standard format is as follows: "With reference to the General Affairs Council decision of December 6/7 1993 approving a code of conduct for public access to Council and Commission documents, and having regard to its subsequent decision on December 20 1993 on the arrangements for implementing the Code, I am applying to you for access to certain documents which are itemised below:....")
Applications will be refused if the document originated outside the Council, for instance in the Commission or in a member state.
Other reasons for refusing disclosure include:
- protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations);
- protection of personal privacy;
- protection of commercial and industrial secrecy;
- protection of the Community's financial interests;
These grounds for rejection are fairly specific. However, the Council also added a potentially catch? All reason for denying disclosure: "Access to a Council document may be refused in order to protect the confidentiality of the Council's proceedings."
This is a dangerous catch-all clause which journalists have to test and keep on testing.
The Council Secretariat has said it will reply to applications within a month. If the request is granted, the Council will probably send the documents free of charge, although it is entitled to demand a fee to cover photocopying costs.
The rule that recipients of documents are not entitled to circulate them "for commercial purposes through direct sale" does not stop journalists reporting on them.
If the request is refused, there is a procedure (currently under review) for appealing to the ministers which will be set out in the refusal letter. This stage also takes a month. In practice, the appeal is handled by officials (of the Council and member states' representations in Brussels), but the decision has to be formally ratified by a meeting of ministers.
If they say no, there can be a further appeal to the European Court of Justice in Luxembourg (which is expensive), or to the European Union ombudsman (not yet appointed) ?? or to your readers', listeners' and viewers' sense of outrage.
2. THE COMMISSION
The Commission has apparently taken a more enthusiastic approach to implementing the Code of Public Access to unpublished documents, although we still have very little experience of how its new arrangements work in practice.
In a guide to Commission staff it says:
"The consequences of the new access policy will be that preparatory documents on the Commission's proposals, the facts and analysis of the facts that the Commission considered relevant and important in the framing of major policy proposals and decisions, and other explanatory material such as statistics and background memos will become more widely available."
Access to documents will not be granted until the Commission has taken a decision on the material they contain. So this cannot be regarded as a clever way to get a leak (for which traditional journalistic endeavour will still be required.) Nonetheless the code could provide a rich vein of material on controversial topics. Application can be made for any document (including electronic data) which originated from within the Commission.
The request should be sent to the Director General of the relevant department. The directorates have different addresses, but letters would no doubt be forwarded if they were sent to the Secretary General, European Commission, General Secretariat, 200 rue de la Loi, 1049 Brussels, Belgium.
As with the Council of Ministers, applications should be as specific as possible and stipulate that they are made under the public access code.
The Commission commits itself to replying within a month. Documents of up to 30 pages will be delivered free, but larger bundles will be subject to a charge of 10 ECU plus 1.5 BF per page. Alternatively arrangements can be made to consult the papers on Commission premises (including its offices in the member states.)
The Commission will endeavour to provide documents in the working language used in the letter of application, but if these are not available it will take account of the applicant's preferences.
If access is refused, there is an appeals procedure to the Secretary?General which takes another month. The arrangements should be set out in the refusal letter.
THE IFJ NETWORK
It will be extremely useful to the IFJ campaign if journalists would inform us of their experiences in making use of the code ?? both successes and refusals. This will help establish if the rules are being operated consistently and will track the disclosure policy of Council and Commission as it develops. Please send correspondence to Renate Schroeder when you have made use of it for your own media organisations.