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!
LOOKING FOR… MINUTES OF MEETINGS
Slovenia – Information Released
Slovenia – Information Denied
Slovenia – Ongoing
Poland – Information Denied
Poland – Information Denied
Poland – Information Released
United Kingdom – Information Partially Released
United Kingdom – Information Released
United Kingdom – Information Released
Poland – Information Denied
Finland – Ruled in favour of requester
Finland – Ruled in favour of requester
Ireland – Information Released
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.