ACCESS

TO

EUROPEAN

PUBLIC SECTOR INFORMATION

Reconciling

The Access Needs

of

Administrative Transparency

and

The Information Market.

Christopher G. Quinton [LLB]

LLM Student

The Queens’ University of Belfast

January 1997

ABSTRACT:

Over the past 30 years or more, innovations in the field of information storage, processing and distribution have heralded what has often been referred to as the ‘information revolution.’ The public sector, being by far the largest collectors, processors and consumers of information, has now found itself in the possession of vast and growing quantities of an increasingly valuable commodity.

The past three decades has also witnessed a noticeable change in the attitude of many of the worlds governments towards the degree of administrative secrecy that is practised within their ‘corridors of power.’ The presumption of secrecy that has for centuries been the hallmark of government institutions and departments now appears to have given way to policies which tend to place on such institutions and departments, a moral obligation to provide members of the public with information which will enhance their awareness of the decision-making processes which effect their everyday life.

It has been an often stated proposition of the European Commission and Council that access to public sector information is necessary element in the EU’s aspirations to satisfy both the democratic imperative of informing the public, and the economic imperative of developing the information market. The problem however, is that the implementing of policies which promote one of these imperatives, will have a tendency to be detrimental to the promotion of the other. This is not to say that both aims are mutually exclusive. A policy heavily favouring the promotion of one imperative will have an incidental, and positive, effect on the other.

It is therefore of paramount importance that the dissemination of public authority information should regulated in such a way as to maximise both of these objectives.

Aims of this research paper:

1.To outline the evolution and nature of the policies and regulations governing access to public authority information, that have been implemented by the European Union institutions, the European Union member states and the United States of America.

2.To examine the degree to which the implementing of access policies and regulations has maximised the promotion of the European Commission and Council’s objectives of (a) increasing administrative transparency, and (b) developing the European information market.

3.To identify problematic issues that arise, and attempt to address them effectively.

TABLE OF CONTENTS

CHAPTER [1]:- This Chapter will contain an examination of the main arguments generally offered in support of the proposition that liberal access to public authority information is vital for the promotion of administrative transparency and for the development of the European information market.

CHAPTER [2]:- This chapter will contain an examination of the evolution and nature of access policies applicable to: (i) The European Commission and Council.

(ii) Sweden.

(iii) The United Kingdom.

CHAPTER [3[:-This chapter will contain an outline of the important aspects of the access policies implemented in other European Union member states

CHAPTER [4[:-This chapter will contain an examination of the evolution and nature of access policies applicable to The United States of America.

CHAPTER [5]:- This chapter will contain a summary of conclusions on Chapters 2 to 4

CHAPTER [6]:- In this chapter I will list a number of proposals which I believe may help to ensure that the European Unions aforementioned twin objectives will be maximised.

METHODOLOGY

Chapter 1:- The examination provides the philosophical background which is, I believe, necessary for a better understanding of the issues involved.

Chapter 2:-The institutions of the European Union are examined as per aims (1) and (2) of the paper;

Sweden is examined for the purpose of comparison, as Sweden has perhaps had the longest history of the most open access policies:

The United Kingdom is examined for the purpose of comparison, as the UK has perhaps had the longest history of closed access policies:

CHAPTER 3:- The other European Union member states are examined as per aims (1) and (2) of the paper.

CHAPTER 4:- The United States of America is examined for the purpose of comparison, as the USA claims to promote the same twin aims as the EU Commission and Council, and has displayed a relatively high degree of success realising both aims.

RESEARCH MATERIALS

Aside from the materials mentioned in the Bibliography, research for this paper has made full use of the Internet. In this respect, I accumulated over 1,500 ‘documents,’ amounting to over 50 Mbytes of information. In addition to this, I acquired much information by placing myself on a number of e-mail ‘mailing lists.’

ACKNOWLEGEMENTS

research for this paper was greatly assisted by:

  • Ms Johanna Ohlsen:- [Translation of Swedish articles]
  • Mrs Jolanda Hanna:- [translation of Dutch articles]
  • Mr Thomas Crane:- [Translation of French articles]

chapter [1]:

An examination of the Arguments Supporting Liberal access to Public Authority Information.

Assess to public authority information is supported by arguments which generally support two different imperatives, which may be termed:- The ‘Democratic Imperative’ and the ‘Market Imperative’.

The ‘Democratic Imperative’ emphasises the importance of implementing policies aimed at promoting administrative transparency and encouraging the active participation of EU citizens in the democratic processes.

The ‘Market Imperative’ emphasises the need for implementing legislation to fully exploit the economic value of the massive amount of data accumulated by the public sector in the everyday running of its affairs.

THE DEMOCRATIC IMPERATIVE:

From the democratic perspective, it is argued that citizens’ access to government information [termed ‘the currency of democracy’ by Thomas Jefferson], when effectively exercised, can help ensure the legitimacy of the democratic process. Political scientist Shalini Venturelli, has referred to open access policies as:-

“Mechanisms for fulfilling democracy's constitutive commitment to citizens' participatory rights ...[1]”

The European Council’s support of such policies has been made clear numerous times. Referring to openness, in its Birmingham Declaration (1992), the Council stated:-

“As a community of democracies we can only move forward with the support of our citizens. We are determined to respond to the concerns raised in the recent public debate.”[2]

Openness therefore, helps to ensure that the citizen, who, being made aware of both the internal functioning of the government, and of the information on which decisions are based, is therefore suitably equipped to actively participate in the decision making process. Openness therefore helps guarantee that the respective decisions gain a greater degree of democratic legitimacy. This, it is argued, will lead to what political scientist Robert Dahl has called “the advanced democratic country.”[3] The governments and institutions become more accountable and transparent. As MEP John Tomlinson has emphasised:-

“... it is the right of every citizen to know exactly what their elected representative is doing on their behalf, and to have access to information about the process through which decisions are taken, as well as the decisions themselves. This is important not just in ensuring that our citizens are informed about the society in which they live, but it also gives them the opportunity to partake in the process through lobbying of their elected representatives, and ultimately through casting an informed vote at election time. Such participation is an essential pillar of democracy, as is the accountability that it helps to progress.”[4]

In a similar vein, Swedish Minister of Justice, Laila Freivalds, claims that:-

“ ... free access to official documents promotes the democratic process, the rule of law and the effectiveness of public administration ... transparency contributes to the efficiency of both administration and democracy...”[5]

Furthermore, Adam Smith, in emphasising the value of information in a democracy, has commented that an informed public are:-

“... more disposed to examine, and more capable of seeing through, the interested complaints of faction and sedition, and they are upon that account less apt to be misled into any wanton or unnecessary opposition to the measures of government. In free countries, where the safety of governments depends very much upon the favourable judgement which the people may form of its conduct, it must surely be of the highest importance that they should not be disposed to judge rashly or capriciously concerning it.”[6]

While Adam Smiths’ statement was first made over two centuries ago, its application to present day politics is beyond argument. Indeed with the recent advances in computer and communications technology, this statement even more pertinent.

As Anderson et al have pointed out, current technology has:

“ ... democratised knowledge ... [and] ... increased participation in discussion, decision-making, and task processes by those who typically are politically or economically disadvantaged.[7]"

From the democratic perspective therefore, the main arguments in favour of liberal access to government information appear to emphasis that the higher the degree of citizens’ access then the greater is their capacity to directly influence policy-makers. This it is argued will ensure that decision makers act in conjunction with the public and in the public-eye, and bring an end to “insider politics” where voter participation in the policy making process, is extremely limited..

The market IMPERATIVE:

The Market Imperative dictates that, as the increasing amounts of information gathered by government departments and EU institutions is a vast source[8] of economic wealth, then access to this information is of paramount importance for the development of a European information market which can compete with the information markets of the USA and Asia. It is also argued that, thanks to ongoing technical innovations in the field of data storage, manipulation and networking, public sector information will be the driving force behind not only the European information market, but the European market itself. As the European Commission stated in 1993:-

“The move towards an information society is irreversible, and affects all aspects of society and interrelations between economic partners. Creation of a common information area within the Community will enable the Community fully to seize their opportunities[9]"

Over the past decade the European Union has placed increasing emphasis on the development of this information market and has emphasised in numerous publications that liberal access to public sector information is a vital element in this goal.[10]

furthermore, that urgent steps need to be taken to ensure the EU’s effective exploitation of this new market, can be gleaned from a recent report to the European Commission, published by the Information Society. The Report warns that:-

“The costs to Europe of failing to adapt swiftly and efficiently will be very high. We shall not only see a growing competitive weakness in relation to the US and the leading Asian economies but also the threat of widespread social alienation.[11]”

SUMMARY

As can be seen from the above outline, access to public authority information is supported by strong arguments supporting both the democratic imperative and the market imperative. As mentioned in the introduction the implementing of policies which promote one of these imperatives will have a tendency to be detrimental to the promotion of the other. It follows therefore that where both these imperatives are to be given maximum support, then a careful balance must be sought.

With this in mind, I will next examine [in Chapter 2(i)] the evolution and nature of access policies both implemented and aspired to, by the institutions of the European Union.

chapter [2] (i):

An examination of the evolution and nature of access policies applicable to the Institutions of the European Union

Debate within the European Union on access to government information began many years before the possibilities of an information market could seriously be considered. Arguments in favour of liberal access policies therefore, supported of the democratic imperative.

For example, it was argued that liberal access policies would be consistent with and supported by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),[12] to which all member states were and are signatories. Article 3 [Protocol 1] obliges signatories to organise elections under conditions:-

“... which will ensure the free expression of the opinion of the people in the choice of the legislature”.[13]

It was argued here that the above obligation can only be effectively fulfilled by making all relevant government material available to the public. ECHR Art. 10 has also been used in support of open access policies. Art (10)[1] provides that everyone has the right to freedom of expression which includes the freedom to:-

“... receive and impart information and ideas without interference from public authorities and regardless of frontiers...”

This freedom is qualified in (10)[2], by making it subject to legal restrictions etc., which are:-

“... necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime...”

The term ‘necessary, (Par. 2), has consistently been interpreted by the European Court as requiring ‘a pressing social need,’[14] and it is for the European Court do decide whether or not any loss of freedom in question proportionally addresses this ‘pressing social need.’ ECHR Art 10 does not however, imply a general right of access. In Leander v. Sweden, (1987)[15], the court declared that the right to receive information did not place an obligation on governments to provide information. The provision was added so as to prohibit governments from:-

“ ... restricting a person from receiving information that others wish or may be willing to impart to him.”[16]

In Sunday Times v. United Kingdom (1991)[17]however, the court ruled that Art 10 provided the press with the right to inform and provided the public with the right to be informed.

Furthermore, it is argued that the freedom of expression outlined in the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, is closely related to the concept of freedom of information.

Actions taken by the EU institutions

By the mid-1970s, arguments in favour of an open access policy began to influence the Council of Europe, and in 1977 the Committee of Ministers adopted a Resolution on the protection of the individual in relation to the acts of administrative authorities[18]. The Resolution recommended that access should be granted to documents relating to administrative acts which effected the individual in question. This was followed in 1979, with the Council of Europe Parliamentary Assembly Recommendation on public access to government records and freedom of information.[19]

This Recommendation suggested that a general right of access to public sector information should not be based on an specific interest, legal or otherwise. Exemptions to such a right should only be based on some overriding public or private interest which should be narrowly defined. Response time and cost should be regulated, and a refusal to access should be challengable in court. This was followed soon after by a Council of Europe Recommendation[20] on public access which stated that:-

“... everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities”.

A similar Recommendation was published in 1980 which advocated access to information relating decisions involving the exercising of discretional powers.[21]

In April 1982, the principle of open access was further encouraged by the adoption of the Council of Europe’s ‘Declaration on the Freedom of Expression and Information’. This Declaration stated that one of the aims of the EU was:-

“The pursuit of an open information policy in the public sector, including access to information in order to enhance the individual's understanding of, and his ability to discuss freely political, social, economic and cultural matters'.[22]”

The Information Market

By the 1980s advancements in information technology were beginning to highlight the commercial possibilities made possible by the electronic storage and manipulation of the vast and expanding resources of public sector information.

The idea of open access to public authority information took on a new urgency therefore, when plans for a European information services market were unveiled in 1988.[23] To this end, DGX111E[24] set in place the Information Market Policy Action Programme (IMPACT) which formulated a number of recommendations to develop the European information market. These recommendations formed the basis of the 1989 Guidelines for improving the synergy between the public and private sectors in the information market[25]. The ‘Guidelines,’ recognised the importance of a partnership between public and private sectors in the building of a strong information services market.

A year later, came the 1990 Directive on the freedom of access to, and dissemination of, information on the environment. It is worth noting here, that where access in granted under this Directive, it is granted any information written, visual, aural or in database form[26].

In 1993, the effect of these Synergy Guidelines was evaluated in a Commission report, PUBLAW 2,[27] which further emphasised the importance [from a commercial rather than human rights perspective] of access to and the value of public authority information.

Public access to public authority was given yet a further boost with the signing to the Treaty on European Union (Maastricht) in February 1992[28]. Article A of the Treaty emphasised the need to make decisions, “... as closely as possible to the citizen.” Declaration 17 of the Final Act of the Conference stated that:-

“... transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration.”

In addition to this, a declaration on the right to access is annexed to the Maastricht Treaty.[29]

Later that same year, 1992, in the Birmingham Declaration, the European Council stated:-

“... we can only move forward with the support of our citizens. We are determined to respond to the concerns raised in the recent public debate... [and] ... make the Community more open, to ensure a better informed public debate on its activities.”[30]

In line with this policy, the Conference recommended that no later than 1993, the Commission come up with a report underlining proposals which would increase public access to EU institutions information. Consequently, two reports, ‘Public access to the institution's documents[31]’, and ‘Openness in the Community[32]’, were published in June 1993, emphasised the importance of balancing public and private interests, and prompted the formulation of a set of guidelines designed to regulate access to commission and Commission documents.