Madrid, 22 May 2015 – Following AlaveteliCon 2015 in Madrid on 19-20 May, Access Info Europe’s director Helen Darbishire, reflects on 3.5 years of running the AsktheEU.org website for making documents requests to the European Union.
In particular she notes the successes, challenges and lessons learned about the relationship with the EU Institutions and public officials.
Access Info Europe launched AsktheEU.org on 28 September 2011 on International Right to Know Day at an event in the European Parliament organised by the European Ombudsman. One of our first messages was the desire to cooperate with the various EU bodies in making it easier for members of the public to submit access to documents requests.
It hasn’t always been a smooth ride however, and in some cases there have been tensions.
1. Challenges before even starting
Even before AsktheEU.org went online, it was a challenge to obtain email addresses for all the various EU bodies and agencies. Some were used to using forms – the European Ombudsman itself didn’t have an email for requests until after AsktheEU.org was launched.
Others actively resisted the use of email: the European Central Bank, for example, at first directed requesters to an online form until one of them insisted on his right to use «any written form», as did the European Parliament. Now all EU bodies accept requests via AsktheEU.org.
2. Uncomfortable with Transparency about Transparency
EU officials have raised concerns that the entire correspondence relating to a request goes online on AsktheEU.org, rather than just the initial request and the response. Access Info Europe argues however, that the process by which requests are handled is almost as important as the outcome itself and that the public also has a right to know about this. Public officials should be prepared to stand to account for any and all correspondence with members of the public.
In fact, having the entire correspondence online has revealed delays, inefficiencies, misunderstandings, and other issues relating to the handling of requests. An example of this is where an official responsible for transparency had her holiday out of office message coming through to the AsktheEU.org website and argued that this was personal data and should be taken down. Access Info Europe took the position that this was a response from the work email of a public official responsible for a fundamental right so we did not remove the message.
The European Medicines Agency also wrote to us requesting that we remove the signature of an official who had signed a letter to a requester approving the release of information. Access Info took the position that an official signature at the bottom of a Decision relating to a fundamental right should not be removed, as public officials should be accountable for decisions they take.
3. Take Down Requests I: Erroneous release of information
Whenever there has been a genuine mistake in sending information through to AsktheEU.org, we have been ready to take it down.
In one case, a police officer had his name included in a response he had helped to answer. The officer immediately contacted Access Info Europe by phone, explained the particular circumstances of his work related to violent animal extremism, and we were happy to remove his details from the online documents.
On another occasion the European Parliament accidentally sent a file containing full personal data of those who had attended a meeting.
Similarly, when an EU official responsible for transparency sent an email to AsktheEU.org instead of to a colleague of his, he telephoned us and we took it offline as it was clearly a genuine mistake. That said, the content was hard to ignore as it revealed a less than sympathetic attitude to transparency, so in response we arranged a constructive meeting with the official in question to talk through their concerns.
4. Take Down Requests II: Copyright
When third parties such as lobbyists submit documents to the EU, they are not always aware that these are also going to fall under the scope of the right of access to documents.
This was the case with Citigroup who had submitted an analysis of the possible impacts and consequences of a Eurozone ‘Banking Union’. When this was posted online on AsktheEU.org following a request for all documents received from business and lobby groups, we received a strong letter from Citigroup’s solicitors informing us that we were in breach of copyright and liable for prosecution.
We explained how the right of access to documents could be used by anyone, and hence how everyone now had a right to access the document.
We also spoke to the European Commission about this issue and suggested in a conversation that more information should be provided to those who submit documents to European Union bodies, in particular lobbyists and those participating in consultations, because of the overriding public interest in knowing about attempts to influence decisions.
Access Info Europe never received a response from the Citigroup solicitors to the very clear position we took.
5. Take Down Requests III: Defamation
It is almost inevitable that a public FOI request platform attracts individuals who may make aggressive statements about public officials. When such messages breach the guidelines and tone of AskthEU.org, we act. Nevertheless, Access Info Europe does not have the resources to monitor all requests and we rely on public officials to alert us when there are problems.
On one occasion, the first signal we got that inappropriate statements by requester(s) had been published on AsktheEU.org came about through a strongly-worded letter received by registered post. It stated that we could be liable to a defamation suit being brought (although no jurisdiction was specified for this potential legal action), but did not specify which content on the AsktheEU.org website was potentially defamatory or offensive.
In correspondence and a meeting soon thereafter with the European Commission we explained that we are always ready to review the problematic material but that we needed more specific details; we also asked for a distinction to be made between what was offensive and what was defamatory and which legal system might be invoked, as the standards vary across Europe.
Almost a year later, in February 2015, Access Info Europe received, again by registered mail, a detailed listing of the problematic passages, some of which contain fairly strong allegations. Without taking any position on the facts, we swiftly concluded that the content and tone of these requests was outside what we find acceptable, and in many cases was entirely unnecessary for the purposes of formulating the requests. We then hid the messages from public view, but without destroying the messages themselves because in some cases the public officials had made an effort in good faith to respond to the requests, and we wanted to keep a structured record of the correspondence just in case.
One of the lessons learned here is that it would be more effective if public officials just called us to tell us about specific concerns the moment they arise. A more open conversation about the concerns rather than formalistic registered mails would result in speedy resolution of issues (in this case, for example, material that was online since 2013 and was only taken down in 2015).
6. Public officials wanting to prove that requesters are “real”
On 1 April 2014 the European Commission introduced a new postal addresses policy, by which it no longer processes access to documents requests unless requesters provide a postal address to prove they are ‘real’. They argue that this is necessary to deliver by registered post any refusals (in case they give rise to legal actions), to ensure that EU data protection rules are applied in third countries, as well as to protect against “request splitting” by requesters using pseudonyms. Even Access Info Europe’s office address was not acceptable to the European Commission when requesters tried to use it.
Access Info Europe finds such an approach baffling as it doesn’t really matter who the requester is: the judgement is whether or not to release the information to the public, and therefore the requester’s identity should not matter. Indeed, many countries routinely process FOI requests just from an email, and others explicitly permit “anonymous” requests, something recommended by the Council of Europe Convention on Access to Official Documents.
The new Commission policy only puts a further obstacle in the way of registering a request.
The postal addresses policy has been questioned as part of ongoing complaints to the European Ombudsman, and some Members of the European Parliament have filed Written Questions before the Commission questioning the logic and rationale of this policy; full details are available here.
7. When our data doesn’t match that of the public body
Access Info Europe periodically evaluates the data on the number of requests answered via AsktheEU.org and evaluates the performance of different institutions.
We pass the draft reports by the relevant officials which has revealed that our systems for counting requests differed to the systems of EU institutions. Some requests filed across AsktheEU.org had not been counted by these bodies because they had been referred elsewhere or treated as “information requests” rather than “access to documents requests”, a distinction Access Info Europe disagrees with.
These findings led to constructive conversations with the respective EU bodies about how requests are processed and how the outcomes are categorised, as well as about other issues such as the scope of the right.
One issue we are currently exploring with the European Commission is that whilst we count each request in its entirety, the Commission counts the responses to each “question” within a request, and often there are more than one, which seems to be skewing the data towards higher response rates.
8. Server problems: Interfering with the right to know?
AsktheEU.org has had some technical problems over the course of its existence (a mixture of server and security issues) which have caused problems with the prompt delivery of messages between EU officials and requesters using the site.
Rather than telephone us whenever there is a problem with delivery, on one occasion, the European Commission informed us by registered post that obstacles created by technical issues were “unacceptable” and that such delays interfered with the right.
As with other Alaveteli platforms, we aim to provide a service that helps the public exercise their rights and to make that run as efficiently as possible. Users are not obliged to make use of our channel for submitting requests for information, and whenever we are aware of an issue, we communicate with relevant EU bodies and users alike.
In order to ease the burden on an organisation which has primarily campaigning skills rather than being a civic tech outfit, we were happy to be able to conclude an agreement with mySociety which generously installed AsktheEU.org on their servers and is now maintaining the website and ensuring that the website runs smoothly.
For more information, please contact:
Helen Darbishire | Access Info Europe
firstname.lastname@example.org +34 913 656 558