EU COMMENT: Danger of public being pushed back into the paper ages

By Brigitte Alfter, editor of Wobbing Europe

BRUSSELS – 10/3/2009 – Will the public be held in the paper ages, while the EU administration is moving on to modern electronic administration? That’s one of the very serious dangers, when the European Parliament tomorrow will vote on the reform of the EU wob.The proposed definition of documents would turn EU access legislation from being the most modern worldwide into just another access law.

But let’s have a look at what is at stage. And for the crack of it: Let’s look at the rethorics used in order to push back citizens into the paper ages. 

The current law of 2001 sounds as follows:

‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.

Any content whatever its medium with the explicit mentioning of electronic formats must mean, that the 2001 regulation included exactly that: Any content whatever it’s medium. An extremely modern access legislation in times, when our administrations fastly are moving into modern administrative systems. Using any useful and affordable technical mean. As they should – citizens and taxpayers deserve and need nothing but an efficient administration.

No point to touch upon the most modern wording worldwide if one wants transparency. But exactly that is happening right now.

The Farmsubsidy case against the Commission
The first publicly known attack against this modern law came in the Farmsubsidy case, in a request, I brought to the Commission back in 2005. A case, in which the European Ombudsman Nikiforos Diamandouros in December 2007 constituted a case of maladministration.

In the summer of 2005 I asked the Commissions DG for agriculture to grant me access to the files, that all member states annualy have to send to the Commission about who receives the farmsubidies. After all a post of 50+ billion Euro on the EU budget, so worthwhile for a journalist to make an effort to inform my readers about.

The answer was as clear as it was funny: Databases were – according to the Commission – no documents. But as the content was important, “a practice has evolved according to which the result of a normal search in the database (“routine operation”…) is considered a document in the sense of Regulation 1049/2001”.

“But ‘routine operation’ is not an exception that’s mentioned in the regulation,” exclaimed my legal advisor upon having read the statement.

There is no such exemption indeed – but the Commissions favoured notion is now on its way to be fixed in the wording of the new regulation.

The newly invented notion of the Commission even grew more funny we went into details with the case: I had asked for the documents sent by the member states to the Commission. These were at the time provided in ordinary spreadsheets. Needless to say, that spreadsheets indeed are documents. The Commission upon receipt uploads the information in its database – and voilà (as they say in Brussels): All information is excepted from public scrutiny by the new notion created by the Commission of “only routine operations”. A perfect way to keep citizens and public scrutiny far away from having a clue of what’s really going on.

In paper ages this would be comparable to saying that yes, the member states did send letters to the Commission, but because there is a filing system so the Commission can keep its archives in order, there is no access to the letters, once they are received by the Commission.
Who would accept such an answer?

Struggle for and against modern access to information europe-wide
In December 2007 the European Ombudsman published his report of the Farmsubsidy-case:

According to principles of good administration, the Commission had to provide valid and adequate grounds for the rejection of the complainant's application. On the basis of his findings in points 1.5 and 1.6 above, the Ombudsman concludes that the Commission failed to properly discharge this duty. This constitutes an instance of maladministration.

The Farmsubsidy case vs the European Commission is by far not the only case, where authorities struggle to keep citizens far away from real information by denying access to electronically stored data. Both on EU and national level sources have told me quite clearly, that they do not want to create any precedent, where they have to burden their IT-departments with more work – struggling against cut-backs in their budgets as many of them are already.

But is that the transparency we want, where the citizen can get a rejection on paper, while the officials type in all relevant information into a database, which then communicates with another database – keeping the public in the dark from now on?

This struggle is mirrored in the report by the European Ombudsman on public access to EU databases published in late 2008 (doc, 1.03 MB), where he has gathered an overview over various European countries. Some of them already have modernised their legislation, including obligations to disclose also electronically stored information. Here particularly the new democracies in Eastern Europe are mentioned – obviously because their laws like the one of the EU itself were created at a time, where electronic administration was a reality already, so modern legislation was implemented.

In this sense it was positive, that the EUs own regulation only was introduced in 2001 allowing a very modern law. An advantage, that the draft regulation will rid us of, unless Parlament saves the current modern definition of documents.

Rethorics – the key-misunderstanding
When I in the spring of 2007 read the Green Paper for the reform of EU access regulation as drafted by the Commission I realised, that the question was put in a way, that far too easily could lead to a misunderstanding.

Increasing amounts of information is held in databases, the Commission argued. Shouldn’t the reformed regulation take care of that and introduce the option to extract such information with existing research tools?
Sure. The more information the better. That was the obvious reaction in many of the answers of the public hearing.
The officials who fancy the Commissions practice must have been jubilating!

The current wording gives access to all information. Now reducing this access appeared to be an improvement. "Any content whatever the medium" includes everything within its scope. Content to be retrieved through existing search tools is a serious, vague and random limitation of our current law.

A database is neither magic nor extremely complex as EU and national officials enjoy to describe it in the letters deyning access. A database is a document, where a lump of information is put in logical and clearly defined relations to other information. If parts of that document are covered by any exemption for example to protect privacy, this information can be deleted in the version, that is granted partial access into.
Making believe that databases are too complex for the public is a clever trap. And it's very easy to step into, because databases can appear to be complex, eventhough they are not.

The wording of the draft reformed regulation excludes access to all information held in the numerous databases of the various EU institutions, except if the applicant is lucky and the data can be retrieved using “available tools”.

Do we want the right to access for our citizens – or do we want to turn this right into a lottery depending upon the will and the budget allocations to make available the necessary tools?

Parliament last hope to save citizens sustainable access
The draft regulation introduces the vague term of “available tools”, that then can allow or not allow access to information. Vague terms - every lawyer knows this - opens doors for abuse. New court cases thus will be required to re-establish the modern character of the EU wob, which it currently has already.

Because what are available tools? A daily reality in many parts of public administrations are tight budget lines – and rightly so. It will be very tempting to save a bit of money by asking IT developpers to focus on the most necessary tools for the daily routines rather than taking care of citizens right to access to information.

The European Ombudsman in his report of late 2008 on Public Access to Information in EU Databases suggests a compromise for the reform of the EU access regulation.

He accepts the notion introduced by the Commission, that electronically held content shall be harder for citizens to access than other content. Recognising his struggle to find his solution in my farmsubsidy case I assume, that he considers this the only the possible compromise.
However as a journalist I have to emphasise, that this is not good enough, and that even the Ombudsmans compromise (which fortunately has been taken aboard in the Cashman report) will make access more difficult for citizens and – on their behalf – journalists.

Again – and against all promises by politicians – citizens will have to wait until business steps in with an important access to documents request and brings a case before the European Court of Justice, which is far too expensive for most citizens to turn to. And then we can hope, that the ECJ will vote in favour of the transparency – a right, that we already enjoy under the current regulation.

Thus this is a call to the European Parliament:
When you vote on this law tomorrow, please vote for a definition (article 3 of the regulation), that allows European citizens access to a modern administration - in other words: Just keep the definition of documents right as it is now!
Article 3 thus should define a document as it does now:

‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording).

In addition, the wise consideration of the European Ombudsman for future developments in the field of electronic administration should be followed:

" (...) in the case of printouts or electronic-format documents based on information contained in electronic storage, processing and retrieval systems, the real cost of searching for and retrieving the document or documents may also be charged to the applicant.  No additional charge shall be made if the institution has already produced the document or documents concerned.  The applicant shall be informed in advance of the amount and method of calculating any charge."

"An institution that intends to create a new electronic storage system, or to change significantly an existing system, shall evaluate the likely impact on the right of access guaranteed by this Regulation and act so as to promote the objective of transparency."

 

 For all classic parts of the vote of the reformed EU law, Wobbing Europe recommends the analysis by Steve Peers, University of Essex, on behalf of Statewatch.