24 March 2011

Worrying potential reforms in the European Union

The European Union is continuing to reveal disturbing trends in its unwillingness to provide information to its citizens. The Freedom of Information Programme had previously joined calls on members of the European Parliament to review their proposal under Regulation (EC) 1049/2001 - a regulation that would potentially threaten access to European Parliament, Council and Commission documents.

Unfortunately, the struggle to resist such ‘reform' is ongoing. Access Info Europe (one of FOIP's co-members on FOAInet) recently won a court case before the European Court of Justice which arose from requests about this Regulation. Access Info Europe had requested from the European Council the names of the countries that were engaged in trying to reform the EU access to information rules, but the Council refused to release such names. The Court however found that the Council had "in no way demonstrated" how publication of the country names would "seriously undermine its decision-making process". Further, the Court stated that: "If citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process" and that they should "have access to all relevant information."

The position taken by the Court is noteworthy. Political entities must acknowledge that ‘public participation' is not a concept that can be merely paid lip service to. In order for citizens to participate in their political environment they must be informed. This is not a gift bestowed on the public by public entities - this is a right owed to them. How can citizens hold their public officials to account if they don't know what those officials are doing? How can member states legitimately claim to be taking a position on behalf of their people if they refuse to let their people know what that position is?

It is worth noting too the practical reality of how European host countries have chosen to respond to Access Info Europe's information requests. 16 out of 27 member states who received requests refused to provide information on EU transparency negotiations. Only 11 countries provided information about either their positions and/or the process of the reform of Regulation 1049/2001. Of the 16 countries which did not provide any information, 8 countries formally refused, 5 referred Access Info Europe back to the Council and 4 did not respond at all (this is referred to as a deemed refusal in South Africa).

In total 23 countries applied exceptions to all or part of the information that was requested. The types of exceptions used included protection of "ongoing negotiations", "decision making" and "international relations". Further excuses proffered were that the information was held in "internal documents" or "might create misunderstanding." For a full report of this, you can read Access Info Europe's report on ‘The Secret State of European Union Transparency Reforms'.

The resistance to openness and transparency currently being experienced in Europe is unfortunately in alignment with the experiences of attempts to access information in South Africa. The exemptions provided for in the Promotion of Access to Information Act (PAIA) are sadly often abused by information officers. In the court case of the Mail & Guardian v the President the South African court acknowledged this failure and expressly commanded information officers to properly utilise their discretions under the exemptions - providing full justification - instead of merely quoting sections without applying their mind. Similarly too, both jurisdictions rely on the commitment and dedication of civil society to drive forward the access to information cause by pushing the boundaries of the laws available and promoting awareness. Access to information is an area of activism that relies heavily on the commitment of citizens to promote it and ensure its maintenance by regimes; it is a right that speaks directly to the truism of ‘use it or lose it'.