Madrid, 28 September 2014 – On the occasion of International Right to Know Day, Helen Darbishire, Executive Director of Access Info Europe, argues that the European Union should be taking a strong lead on transparency standards across the 28 country region of 500 million inhabitants.
With 751 new members of the European Parliament getting settled into their offices in Brussels, and with the new European Commission – the ministers of the Union – about to be appointed, civil society is demanding a strong transparency agenda in which the EU takes the lead and sets standards to be followed by all its 28 Member States.
In September 2014, the world reached the significant landmark of 100 access to information laws, with the adoption of a transparency law in Paraguay. The EU as the world’s only supra-national body also has an access law – the rather inelegantly named Regulation 1049/2001 on access to documents. This regulation ranks alongside the better national laws, positioned at around 25 from the top of the 100, so just in with the 25% top laws.
The quality of the law, however, is never the whole story. Sweden, with the world’s first access to information law, adopted in 1766 and so just shy of its 250th Birthday, ranks at position 41, but the country has a strong culture of transparency and all research shows very high and rapid response rates, both to Swedish requesters and those from around the world. The other Nordic countries of Finland and Norway are also generally good at putting transparency into practice, having strongly-developed cultures of open government.
Response rates from the EU put it at a rather average level compared with national data from Access Info Europe and other civil society organisations. The latest figures from the AsktheEU.org request platform, which was launched on International Right to Know Day 2011, gives a rate of 58% for full or partial information release (of which 36% is complete information provided). Actual formal refusals across the EU institutions are low at 8% and in data held specifically on the Council of the EU and the Parliament from 2013, only one request to each institution resulted in administrative silence.
These numbers could certainly be improved and doing so should be a priority for the new Commission. Attention should also be paid to the story behind the numbers: many of the documents which are not being released, and in some cases not even being created, are those needed by the European public to follow decision making and to hold the EU institutions to account.
This means that civil society is having to fight to get access to basic decision-making documents. In October 2013 the European Court of Justice granted Access Info Europe access to a document containing the positions of Member States in negotiations over the EU’s transparency rules. It is both remarkable and unacceptable that it took a 5-year legal battle to secure public access to such a document.
A current area of concern is the negotiation with the United States of the Transatlantic Trade and Investment Partnership (TTIP), which will govern future rules affecting areas such as the quality of food, consumer protection, and chemicals safety. Much information has been exempted from the reach of the EU’s transparency rules on the grounds that it is an international negotiation; the United States for all its history of Freedom of Information does also not seem particularly keen on permitting the European public to be informed about what is, in effect, a future regulatory framework for European laws.
In July 2014, the European Ombudsman opened an investigation into the European Commission and the Council of the EU for lack of transparency around the TTIP talks and even before concluding this called for publication of the negotiating directives and a range of practical measures to enable timely public access to TTIP documents, as well as to details of meetings with stakeholders, which includes the involvement of the business lobby which has been given privileged access to some documents.
One of the most shocking cases in 2014 has been the refusal of the European Commission to reveal details of spending on travel and hospitality by the outgoing commissioners. This is the kind of refusal which fuels suspicion of wrong-doing and abuse in Brussels, even if it is unjustified.
In Access Info Europe’s opinion polling, 86% of the public across six countries wanted to know how the EU is spending the money which comes from their tax contributions, and it’s a legitimate ask. The public knows that such secrecy is unacceptable by 21st Century standards of an open, democratic society.
Interestingly but not surprisingly, the public is also very concerned about the way the financial crisis is being handled, with 84% of the public demanding to know more about how the European Central Bank has taken decisions relating to the crisis, something which it resisted sharing documents on, including for example what it knew about the true state of finances in Greece in the run up to that country’s financial collapse (Greece also being a country which is very weak on transparency).
With Europe facing a crisis of confidence, as underscored by record low turnout in this year’s European elections (42.5%), a lot of work must be done to get closer to the public, and opening up basic decision-making and spending documents is clearly one of them.
Greater openness is not just clever politics, it’s a legal requirement of the EU treaties which require that EU bodies “shall conduct their work as openly as possible” and that “decisions shall be taken as openly and as closely as possible to the citizen.”
Hence, the incoming Parliament and Commission should make transparency a priority of and should put a strong focus on making the existing rules work in practice.
EU Transparency Reform Priorities
The issues needing attention are clear. They include the need for a policy to make it easier to file requests, reversing the obstacles put in place of requesters by the Commission in April 2014 which means having to give postal addresses and having refusal letters delivered by post even when requests were submitted by email.
In modern information age, there should be an urgent drive to maximise use of technology to improve openness, which should include putting much more information on line proactively: the public should be able to download details of expenses of Commissioners and MEPs or the framework for international trade talks at the click of a button instead of having to fight for access via the Ombudsman or the Court.
An openness-based approach would also mean dropping threats to undo some of the pro-transparency case law of the Court by reforming the EU’s access rules, threats that were a feature of the last legislative term. The 2009 Lisbon treaty recognised access to EU documents as a fundamental right for citizens and residents, and this must be integrated into the EU legal framework, for example by apply a public interest test to all the exceptions which permit refusals, including in particular international relations and economic policy.
A proper balance needs to be struck in law and practice with the right to privacy and personal data protection. Currently the legal framework gives privacy the upper hand and this is being abused to deny data such as the names of public officials taking decisions, the names of lobbyists participating in meetings, and the details of spending, even when by Commissioners or MEPs on official business.
Information Officers in each public body – a well-established practice in many national access to information regimes – is not required at the EU level but would result in requesters getting more help and orientation and in most cases would make it easier to answer requests.
One of the vehicles for putting together a transparency agenda would be for the European Union to join the Open Government Partnership and to become part of the dynamic community of public officials from 65 countries working to increase transparency, participation and accountability in practice.
The EU is well placed to take such as step. Thanks to the Politics for People Pledge Campaign run across 20 European countries and coordinated by the Alliance for Lobby Transparency and Ethics Regulation platform (ALTER-EU) there are 180 members of the new European Parliament who have pledged to defend transparency. This is a strong core of parliamentarians with whom to work on instituting a stronger transparency culture.
From Brussels to the 28
The challenge facing Europe is not only, however, only increasing transparency in Brussels, but across the region. Indeed some of the problems with the EU institutions reflect the fact that the region has some of the world’s worst access to information laws: Austria lingers at the bottom of the global ranking, with just 37 points, a constitutional secrecy provision and very weak practice – Austria lost a case before the European Court of Human Rights in 2013 for violating the right to information in response to a request about land records.
Southern European Countries generally have much weaker transparency regimes. A monitoring in Italy last year revealed a level of administrative silence at 65%, and only 13% of requests receiving full answers.
Similarly high levels of administrative silence are found in Spain (57% based on data from 2013, and as with Italy just 13% of requests getting satisfactory responses), whose new access to information law will come into force on 10 December 2014. It is not yet clear how the law will operate, not least because the government has is currently seriously behind schedule with preparing for implementation, and has failed to fulfil legal obligations to adopt implementing regulation and to appoint the Transparency Council that will oversee law. Access Info Europe called this week for more information and for a genuinely independent body to be appointed.
It is no coincidence that the countries with the poorest access laws and weakest transparency in practice are also those with rampant corruption and who were most seriously hit by the financial crisis. There is a direct correlation between opacity and mismanagement of public funds. The accuracy of data from Greece used to be a joke in Brussels, until suddenly it wasn’t any more. In Spain, there are empty airports which stand as testaments to the pharaonic misspending of pre-crisis times, but are cold comfort to the over 50% of young people currently unemployed.
If there is ever to be a serious change in the weaker transparency cultures in Europe, the lead must come from the European Union which should set standards. This should mean the EU recognising that a fundamental right, as confirmed by the EU treaties and the European Court of Human Rights, is something on which the EU should be both taking a lead and setting firm standards for its Member States. Any future rules or a possible directive should be, at a minimum, in line with international standards, including the Convention on Access to Official Documents.
International Right to Know Day is the moment to remind ourselves that Europe was the birthplace of the right of access to information and should continue to be a leading example of open government.
For more information, please contact
Helen Darbishire | Access Info Europe
firstname.lastname@example.org +34 913 65 65 58
Pam Bartlett Quintanilla | Access Info Europe
email@example.com +34 913 65 65 58