Thursday

2nd Dec 2021

Opinion

20 years of public access to EU documents: time for makeover?

  • What needs revision? Unlike in some member states, the EU guarantees the right of access to "documents", not "information" and this is a critical distinction. If no document about an issue exists, information is denied. (Photo: European Ombudsman)
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This year marks the 20th anniversary of the coming into force of the EU 'transparency law' (officially, Regulation 1049/2001), a move which gave concrete expression to the right of public access to EU documents and significantly increased the accountability of the EU administration.

Two decades on and the practice of requesting public access to documents is now well established, used by investigative media, by interest groups and civil society activists, by businesses both big and small, and, not least, by citizens themselves.

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As European Ombudsman, I serve as a redress mechanism for those denied access to EU documents, enabling me to see first-hand the benefits but also the shortcomings of the regulation.

One such shortcoming is that this cornerstone of EU transparency comes from a radically different era, predating many modern communications tools, such as smartphones and instant messaging, and the emergence of big data.

The law therefore needs to match today's reality while maintaining its core strengths. It also needs to align more closely with the citizen rights enshrined in the Lisbon Treaty, encourage greater proactive transparency and take account of important transparency case law.

This is an issue of good governance. It is about keeping public institutions accountable throughout the entire chain of EU decision making. Whether it is about vaccines procurement, the EU recovery funds or legislative decision making in the Council, this transparency law is crucial for European citizens' rights.

Time for a makeover?

So what needs revision? Unlike the practice in some member states, the EU guarantees the right of access to "documents", not "information" and this is a critical distinction. If no document about an issue exists, information is denied.

My inquiries show that the institutions struggle to adapt their recording and disclosure obligations to the realities of modern communication tools, as they become increasingly used throughout the administration.

It may therefore be time for the EU legislators to give this aspect of Regulation 1049/2001 a makeover. In the meantime, I have launched an initiative to map the practices in the EU administration concerning the recording of instant messaging as used for professional purposes.

Greater transparency

The EU Courts continue to encourage greater transparency by the EU institutions, particularly in relation to documents concerning law making. This is not just in the public interest, but it is also in the interest of the institutions themselves, strengthening the legitimacy of the EU legislative process.

As ombudsman, I have emphasised this issue in recent years, and have been supported by the European Parliament, by many national parliaments and by civil society groups. It remains a work in progress.

In one important case, the court found that the Council of the EU should have recorded proposed amendments to legislation by member state delegations in the context of council legislative negotiations.

Greater transparency in this area would, I believe, help to tackle the 'blame Brussels' culture allowing more citizens to realise that it is their own governments who decide legislation in Brussels and not some 'faceless bureaucracy'.

Speeding up access requests

At a technical level, the two-step procedure set out in law for requesting access to documents, combined with the timelines involved, can be cumbersome and slow, taking at times months to process.

My office has sped up our own work on access to document complaints, introducing a 'fast-track procedure' in 2018. The average time to complete a case is now one third of what it previously was.

Despite this, it is clear that many of those seeking access to documents face delays that undermine their ability to use the documents they want to consult. Access delayed is access denied, and the EU institutions should be more sensitive to this experience of citizens.

Strengthening redress

Where individuals seeking access to documents are frustrated in their efforts, they may turn to the court, but this can be time consuming and prohibitively costly. The European Ombudsman is therefore a more accessible redress mechanism for citizens.

My office has the power to inspect the documents at issue. Where I find an institution was not justified in withholding access, I may make a solution proposal during an inquiry, encouraging the institution swiftly to resolve the matter by disclosing, partially or fully, the documents requested.

When an institution insists on withholding access, I can make a formal finding of maladministration and a recommendation that the institution disclose the documents.

While compliance with my recommendations is high, there are cases where some institutions or agencies have not responded positively.

Ultimately, the institution itself remains the gatekeeper of documents it holds. In some member states, the independent and accessible 'information commissioner' bodies work well, and this is something on which EU legislators may wish to reflect.

Beyond 20?

Regulation 1049/2001 has been a very positive development in EU transparency and ultimately accountability but 20 years on, it is worth reflecting on how it can be improved and future-proofed.

Modern communication and working methods, the timeline for accessing documents and strengthening redress are all things that could serve further to improve this vital tool for ensuring the accountability of the EU institutions.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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