European Parliament, October 17th 2000
As a journalist whose instinct is to get information and to share it with as many people as possible, I cannot speak with authority on the artful skill of keeping secrets. But I do know that confidentiality in certain narrowly defined areas is very important.
Most of us do not need to be told that military matters, the security of the state, the safety of citizens and the confidentiality of certain insider information on the economy require careful management and a degree of confidentiality in the public interest.
But while prudence and sound governance is one thing, the events of the past few weeks suggest that the promise in the Amsterdam Treaty that "Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents…" is being revised in such as way as to make a nonsense of political commitments to open government.
Security traditions in every country are rooted in secrecy. The challenge to the EU institutions is to achieve a balance between security needs and the needs of citizens to have access to all documents, including classified ones.
There had been hopes that the co-decision process between the European Parliament and the Council and discussions on a new draft code to revise the 1993 document would open up a new era of transparency. Far from it. Instead, we are now looking at a process that is flawed, where the trust between institutions has been broken, and a range of proposals now before the Parliament that could indeed open up EU politics to public scrutiny or, just as easily, that might create a new regime of secrecy considerably worse than before.
We are all in the shadow of a security regime that has spelled out an uncompromising approach to access that will damage rights of access to a range of documents far beyond those necessary to ensure sensible and careful governance in the public interest.
The actions of the Council on 14 August to unilaterally amend its own rules of procedure, introducing a new classification system and to deny access to all documents which are classified Top Secret, Secret and Confidential concerning the security and defence of the union and to exclude access to any category of linked documents which "enables conclusions to be drawn" regarding the existence of another classified document without express permission in writing of the author (which in this case could be a NATO member State including the United States or Turkey) introduces the possibility of veto over our democratic rights by non-EU states that would be unthinkable in any other area of policy.
This approach not only goes against the traditions of a number of Member States, it undermines the principle of freedom of information in the first Article of the current code of access. Citizens have the right to request any document subject only to very specific and narrow exceptions. The new measure, to be agreed by May 2001, is meant to "enshrine" the citizen's right of access to documents under Article 255 of the Amsterdam Treaty.
The Council decision permanently excludes from public access whole categories of documents covering foreign policy, military and "non-military crisis management" - and any other document whether classified or not which refers to these issues.
Nor does it make any distinction between policy-making (which should be in the public domain) and operational details. It is not possible to equate this Decision by the Council to change the 1993 Decision with any conceivable understanding of democratic decision-making. It was arrogant and contemptuous of democratic standards.
The arrogance of the Council is well displayed by the response to a request by the lobbying group Statewatch to have access to the papers upon which the decision was taken. They were told that access to a document "could fuel public discussion". They were also told that access could offend "the Council's partners". Clear evidence, if more were needed, of where non-EU states or international organisations (eg: NATO) have a veto over the EU citizen's right of access to documents.
Another request for documents to the Council, by the European Citizens Advice Service received a blanket refusal, even though they were already in the public domain.
The fact is that the Council of today is as over cautious and as negligent in its defence of the citizens principles as it was a few years ago when it refused the Journalists Union of Sweden access to Council documents relating to Europol. At that time the Swedish Union asked for 20 documents from the Council and under Swedish Law asked for the same documents from the Swedish Government.
The Council only handed out two documents and. In Sweden some 18 documents were handed out. The Council's refusal at that time was challenged and the absurd nature of their action was revealed in the subsequent Court judgement against them.
It is important to reflect on two aspects of this case.
The first is that the Council, or anyone else for that matter, have to recognise that there are different traditions at work here and, in line with the Amsterdam Treaty commitments, it will always be sensible to apply the tradition of openness where it applies to the highest level.
The second is that the court of first instance in Luxembourg in its judgement on June 17th 1998 laid down some important principles:
First that according to the 1993 code access to documents is the rule;
Second, that restrictions should be narrowly interpreted;
Third, that every document should be tried or examined on its own;
Fourth that if a document is refused there should be real harm to the interests concerned and, finally;
That all documents held by the council are covered by the rule of access.
The question must be asked, given that decision and the Council's actions of the past few weeks, what is the meaning of a defence and security policy, what is it defending and securing if it requires the denial of citizens' rights and is put through in a way that a totalitarian state would be proud of.
Additionally, in its proposed new code of access the Commission wants to create the so-called "space to think" for officials (public servants) and permanently deny access to innumerable documents.
Apart from the suggestion that the "space to think" for officials is apparently more important that the peoples' right to know, there is another problem with the "space to think" for officials, it would also give them the "space to act".
Many of the documents hidden by this rule would concern the implementation of measures - the practice that flows from the policies.
Officials would be unaccountable for their actions. Democracy is not just about information and participation in policymaking, it is crucially about the ways policies are put into practice. For example, police powers over the citizen are judged not just by the formal laws but also by how they treat people on the streets and in detention.
In policing terminology the "space to act" is called "self-regulation" where officers are give so much discretion that they are "free" from direct lines of accountability for their actions often with disastrous results.
We are seeing an increasing number of "gaps" in EU accountability even at the formal level. Since 1994 there have been annual reports on the work of the Europol Drugs Unit but now that Europol is a fully-fledged operational agency there is a "public" glossy version heavy on "spin" and low on content.
Since 1995 there have been annual reports on the implementation of the Schengen Convention (up to 1998). Now we are being told that because the Amsterdam Treaty split Schengen between the "first" and "third" pillars there is to be no annual reports in future. Who made this decision, officials or governments?
Thus we will no longer know how many checks have been carried out on the Schengen Information System (SIS) database to exclude people from entering the EU or how many cross-border surveillance operations have been requested. And all this happens when the Council is discussing major extension in the data to be held on the SIS.
The huge gap in knowledge that would result from the "space to think/act" is compounded by the proposal that non-EU states, agencies and international organisations, like the USA or NATO, would have the right to veto access to documents for EU citizens.
When ad-hoc, secret, international working parties abound in the field of "law enforcement" and globalisation marches on unfettered, the idea that whole areas of policymaking and practice should be removed from public view should be abhorrent to any democrat.
The demand for the "space to think" and the "space to act" and poorly-defined security considerations must not be allowed to contaminate the code of access to documents.
It is only legislatures that have the right to ask for the space to think, not the executive and its officials. The people have "freedoms" and "rights", government and officials have "responsibilities" and "duties".
Will the new code be better that the existing code and practice? Will the new code, as intended by the Amsterdam Treaty commitment, "enshrine" the citizens' right of access to documents? The answer from the Commission and Council is a clear no.
One category of documents are to be exclude to give the "space to think/act" to officials, another category is to be permanently excluding from access because any debate on security and defence could undermine it, yet another category is to be denied under the veto of non-EU states and agencies and if this fails to block access to documents the EU institutions are to be given wide discretion to turn down requests for access.
We agree strongly with the Ombudsman Mr Soderman when he says that "transparency means that the process through which public authorities make decisions should be understandable and open; the decisions themselves should be reasoned: as far as possible, the information on which decisions are based should be available to the public".
A climate of mutual trust and confidence must be created, in which citizens are able to participate in a well-informed and responsible public debate and in which politicians and the executive branch of government is held properly accountable for their actions.
Intervention by Aidan White
International Federation of Journalists
