JURISPRUDENCE ON DECISION-MAKING TRANSPARENCY

In order to help activists and civil society to push for greater transparency, and secure positive changes in transparency practices, this webpage collects and displays key jurisprudence relating to the disclosure of documents that are useful in helping to open up decision-making processes.

Here you will find a series of cases from all across Europe which we hope will be useful in order to map what, where and why we can access key pieces of public information related to decision-making.

Check out the cases and see what arguments can help you access decision-making information!

Slovenia – Information Released

Exception(s) used Internal operations (Article 6(1)(11) of Slovenian access to information law)
Country Slovenia
Case Applicant vs. Commission for the Prevention of Corruption
Decision No. 090-246/2014 of 1 December 2014
Information requested Minutes of meeting
Result Information Released


Background of case:

The applicant requested access to the transcript of a Government meeting where a list of candidates for the position of Slovenian EU Commissioner was discussed and decided upon.

The Government’s argument for the refusal was that the release of the transcript would cause irreparable harm to the internal operations of the body (Article 6(1)(11) of Slovenia’s access to information law), as well as that the transcript was classified as INTERNAL (Article 6(1)(1) of Slovenia’s access to information law).

The applicant demanded that the Government declassify the requested transcript as the information already was in the public domain and because vital interests of the country that need to be safeguarded under the Classified Information Act cannot be affected by the release of the information sought. Should the public be informed about the discussions on the candidates for the position of the EU Commissioner, this would certainly not harm the interests of the country.

Decision of Information Commissioner:

The Commissioner thus ordered the disclosure of the transcript (annulling the Body’s decision).


Slovenia – Information Denied

Exception(s) used Classified information (Article 6(1)(1) of Slovenian access to information law)
Country Slovenia
Case Journalist vs. Ministry of Foreign Affairs Decision No. 0900-42/2007/3 of 23 April 2007
Information requested Minutes of meeting
Programme of trips/visits
Result Information Denied


Background of case:

A journalist requested the Minutes of the Ministry’s Working Body on Technical Coordination of Foreign Policy Activities. He also requested the Programme of anticipated foreign visits of the President of the Republic, the President of the Parliament, the Prime Minister, the President of the National Council, the ministers and heads of the Government services for the year 2007. The reason for the request was a perceived lack of coordination between the President of the Republic and the Prime Minister regarding their respective international visits and meetings with foreign dignitaries.

The Ministry rejected the request.

Programme of trips/vists: the Ministry invoked the exception of classified data (Article 6(1)(1)). It reasoned that it would be inappropriate to release the Programme, as foreign states could find out from the media about a planned visit and it would also be inappropriate that public would know about the visits public before all arrangements are concluded and confirmed by both sides. This could have important consequences for the economic and political relationships between the states.

Minutes of the meeting: the Ministry relied on the exception of “internal operations” (Article 6(1)(11)). The Ministry emphasised that the Minutes contains value judgments of those present at the meeting, which could harm the relations between Slovenia and the states involved.

Decision of Information Commissioner:

The requester’s appeal was denied based on the exception of protection of “internal operations” of the Ministry of Foreign Affairs (Article 6(1)(11) of APIA).


Slovenia – Ongoing

Exception(s) used Internal operations (Article 6(1)(9) of Slovenian access to information law)
Country Slovenia
Case Applicant vs. Ministry of Education, Science and Sport
Decision No 090-224/2014/4 of 28 November 2014
Information requested Minutes of meeting
Decisions of meetings
Result Ongoing


Background of case:

The applicant requested access to minutes and resolutions adopted by the College of the Minister of Education, Science and Sport and several of its Directorates in the period from 1 January 2012 to 1 September 2014.

The Ministry rejected the application, claiming that the requested documents in large part do not exist. In the part where they do exist (minutes and resolutions of the “Office for Youth”, an office under the Ministry), the Body invoked the exception of protection of “internal operations” (Article 6(1)(9)).

The applicant did not explain the arguments for disclosure or they are not noted down in the Commissioner’s decision.

Decision of Information Commissioner:

The Commissioner upheld the decision of the Ministry that it did not hold the information requested.


Poland – Information Denied

Exception(s) used Secrecy of Council of Minister meetings (Article 22(1) of Act on the Council of Ministers 1996)
Country Poland
Case File ref. no. II SA/Wa 606/13 of 26 June 2013 (Judgment of the Voivodship Administrative Court in Warsaw)
http://orzeczenia.nsa.gov.pl/doc/15EEAA9224
Information requested Minutes of meeting
Result Information Denied


Background of case:

An NGO wanted to obtain full minutes of the Council of Ministers (CoM) session during which the EU Treaty on Stability, Coordination and Governance in the Economic and Monetary Union was discussed.

The Prime Minister refused to disclose such information as according to the 1996 Act on the Council of Ministers the minutes are protected from dissemination.

Decision of the Court:

The court upheld this decision explaining that:
The merits of the case concerned the interpretation of Article 22 section 1 of the Act on the Council of Ministers of August 8, 1996. Pursuant to the abovementioned legal provision, Council of Ministers sessions are closed door meetings.


Poland – Information Denied

Exception(s) used Information did not fall under FOI Act
Country Poland
Case File ref. no. II SAB/Wa 412/14 of 8 October 2014 (Judgment of the Voivodship Administrative Court)
http://orzeczenia.nsa.gov.pl/doc/3C81D0853
Information requested Minutes of meeting
Result Information Denied


Background of case:

An NGO wanted to obtain full minutes of a meeting held by the Standing Committee of the Council of Ministers (which prepares final drafts before a Council of Ministers session) concerning the discussion on the draft report on financial market supervision.

The Prime Minister informed that full minutes in the form of a protocol constitute an internal working document and do not fall under the FOI Act.

Decision of the Court:

The Court agreed with this statement arguing that:

“The fundamental fact to be established in this case is whether the information requested by the Association in the form of records (minutes) of the Standing Committee meeting of March 13, 2014 referred to in § 10 section 1 of Order No. 86 of the Prime Minister of November 28, 2013 on the Standing Committee of the Council of Ministers constitutes public information within the meaning of the Act on Access to Public Information.


Poland – Information Released

Exception(s) used Information did not fall under FOI Act
Country Poland
Case File ref. no. II SAB/Wa 108/14 of 13 May 2014 (Judgment of the Voivodship Administrative Court in Warsaw)
http://orzeczenia.nsa.gov.pl/doc/7B6A8DDCBE
Information requested Minutes of meeting
Result Information Released


Background of case:

A citizen requested for access to the minutes of meetings (in the form of recordings) held between the government and Catholic Church representatives concerning consultations on various draft laws. The Minister of Administration and Digitization, who was the host of the meeting, denied access claiming that the recordings constitute a working, internal document.

Decision of Court:

The Regional Administrative Court in Warsaw did not agree with such a position and decided that:
“The information requested by the claimant concerning Joint Commission sessions, both in the form of minutes and draft documents or electronic records, meets the criteria of being classified as public information as it concerns the performance of public tasks by a public administration authority (the Minister of Administration and Digitization) by documenting the authority’s public activity.”


United Kingdom – Information Partially Released

Exception(s) used Information relating to the formulation or development of government policy (Section 35 of UK FOI Act 2000)
Country United Kingdom
Case DBERR v Information Commissioner and Friends of the Earth EA/2007/0072, April 2008
Tribunal: http://www.informationtribunal.gov.uk/DBFiles/Decision/i181/DBERRvIC_FOEfinaldecision_web0408.pdf
Information Commissioner: http://www.right2info.org/resources/publications/case-pdfs/uk_dberr-v.-ic_ic-decision-notice
Information requested Minutes of meeting
Correspondence
Result Information Partially Released


Background of case:

Friends of the Earth asked for what meetings and correspondence there have been between Ministers and/or senior civil servants and employees from the Confederation of British Industry (CBI) one of whose main aims is to lobby government on behalf of its members. On 26 July 2005 the DTI provided some information but refused to supply other information held on the basis it was exempt under Sections 35 (policy formulation), but also 36 (prejudice to the conduct of public affairs) and 41 (confidential information) and Section 40 (Personal Data) of the UK FOI Act.

This is a particularly important case in the history of the UK FOI Act due to its relatively early arrival at the Tribunal level; it is one of the first cases to discuss lobbying and the effects of lobbying in detail and the depth to which the balancing of the public interest test was considered.

Due to the wide ranging nature of section 35, being interpreted broadly as anything that ‘relates to’ policy, and the Tribunal agreeing with the DTI’s reliance on the Department for Constitutional Affairs (DCA)’s guidance which states “a suggestion or advice received from a third party in the course of policy development will be covered by the exemption”, the case was not based on whether or not the information was subject to section 35 but on the balancing of the public interest test.

The Decision of the Tribunal:

Due to the complexity of the case, the number of exemptions and having to apply the public interest argument “in all the circumstances of the case”, the Tribunal largely upheld the Decision Notice, but have also upheld the appeal in part.


United Kingdom – Information Released

Exception(s) used Information relating to the formulation or development of government policy (Section 35(1)(a) of UK FOI Act 2000)
Country United Kingdom
Case Complainant vs. Department of Health ICO Decision Ref: FS50312407, April 2011
https://ico.org.uk/media/action-weve-taken/decision-notices/2011/606942/fs_50312407.pdf
Information requested Minutes of meeting
Result Information Released


Background of case:

On 21 December 2009 the complainant made a freedom of information request to the Department of Health for information related to plain packaging on tobacco products. The request was refused under section 35(1)(a), information which relates to the formulation or development of government policy. The public authority concluded that the public interest in maintaining this exemption outweighed the public interest in disclosure.

The Decision of the Information Commissioner:

Mindful of the presumption in favour of disclosure the Commissioner decided that, in all the circumstances of the case, the public interest in maintaining the exemption does not outweigh the public interest in disclosure.


United Kingdom – Information Released

Exception(s) used Information relating to the formulation or development of government policy (Section 35(1)(a) of UK FOI Act 2000)
Country United Kingdom
Case Information Tribunal in DfES v Information Commissioner & the Evening Standard EA/2006/0006, February 2007
http://www.informationtribunal.gov.uk/DBFiles/Decision/i70/DFES.pdf
Information requested Minutes of meeting
Result Information Released


Background of case:

Dominic Hayes was and is the education correspondent of the Evening Standard newspaper. He submitted a request for information to the Department for Education and Skills (DFES) concerning the minutes of senior management meetings around a supposed funding crisis in schools. The information was denied subject to exemption 35(1) Policy Formulation.

The ICO ordered disclosure after considering the strength of the public interest in disclosure of the documents but the DFES appealed to the tribunal.

The Decision of the Tribunal:

The Tribunal upheld the Information Commissioner`s decision, to disclose the information as the public interest in disclosure outweighs the public interest in withholding the information.


Poland – Information Denied

Exception(s) used Definition of information (Article 1 of the Polish access to information Act 2001)
Country Poland
Case File ref. no. I OSK 666/12of 21 June 2012(Judgment of the Supreme Administrative Court)
http://orzeczenia.nsa.gov.pl/doc/B4DB39F496
Information requested Minutes of meeting
Result Information Denied


Background of case:

This case is connected with the state described in the case with ref. no. II SAB/Wa 295/11.

The NGO asked the Prime Minister to deliver information on who decided to perform informal consultations via a mailing list with selected NGOs. The Prime Minister responded that there was no information as such a decision was not taken.

The Decision of the Courts:

The Regional Administrative Court in Warsaw, in its judgment of December 6, 2011 (ref. no. II SAB/Wa 260/11), acknowledged the existence of such an informal consultation process and therefore concluded that someone had to take the decision. Unfortunately after the appeal of the Prime Minister to the Supreme Administrative Court, the latter decided that:
“The Supreme Administrative Court hereby states that the fact that the draft law was discussed by the members of a closed mailing list is no proof of any formal decision of the body and, as a negative answer to the question was given, it would be difficult to say that the Prime Minister remained inactive.”


Finland – Ruled in favour of requester

Exception(s) used Section 6(1)(6)
Section5(4)
Country Finland
Case KHO 10.12.2001 T 3077
Information requested Minutes of meeting
Result Ruled in favour of requester – public authority to reconsider original refusal


Background of case:

The Supervisory Council argued that the recorded conversations in the minutes fall under Section 6(1)(6) of the Act on Openness as they were kept for the preparation of a matter or for the internal use of the authority.

The Supervisory Council had also invoked Section 5(4) of the Act on Openness. The argument used was that the authority had archived the conversations only for internal purposes and they had no duty to archive the documents. Moreover, the authority argued that it had pursuant to Section 5(4) ordered that access to the information can only be granted by permission of the authority. The authority also argued that to ensure that opinions can be formed freely, it is important that access to the conversations is limited.

The applicant argued in the Supreme Administrative Court that the Supervisory Council had not been credible in explaining that the conversations had been recorded only for preparation of the matter or for internal purposes.

The Decision of the Court:

The Supreme Administrative Court found that the minutes, including records of conversations, of the Supervisory Council were documents prepared by the authority. When the conversations had been recorded in writing, scrutinized and signed in an appropriate manner, they were not deemed to be internal documents or documents prepared for the preparation of a matter.

The Court ruled in favour of the requester, rejecting the authorities reasoning based on sections 5(4) and 6(1)(6) regarding the fact that the documents had been prepared for internal use or preparation of a matter. The court found that the authority could not justify its refusal on these grounds and give information only on the permission of the Supervisory Council, and therefore asked the authority to reconsider its decision.


Finland – Ruled in favour of requester

Exception(s) used Sections 24(1)(2), 24(1)(7)-24(1)(10)
Section 5(4)
Section 16(1)
Country Finland
Case KHO 8.8.2001 T 1761
Information requested Minutes of meeting
Result Ruled in favour of requester – public authority to reconsider original refusal


Background of case:

There were several exceptions invoked by the Ministry of Defense (Sections 24(1)(2), 24(1)(7)-24(1)(10)). In general, these exceptions relate to protection for international relations, security arrangements, public safety and military matters. The government had decided to prolong the period for secrecy of these documents in 1983 by 15 years. The Ministry also argued that even though the documents are fairly old, t