Freedom of information legislation and protecting values of openness and democracy EU perspective

1
Freedom of information legislation and protecting
values of openness and democracy EU perspective

• Pravo na pristup informacijama update sa EU
  praksom
• dr. iur. Jurij urej, MBA, Slovenija

2
Freedom of information in EU legal
background

• TREATY ESTABLISHING THE EUROPEAN COMMUNITY
  (Pogodba o Evropski gospodarski skupnosti)
• Article 255
• 1. Any citizen of the Union, and any natural or
  legal person residing or having its registered
  office in a Member State, shall have a right of
  access to European Parliament, Council and
  Commission documents, subject to the principles
  and the conditions to be defined in accordance
  with paragraphs 2 and 3.
• 2. General principles and limits on grounds of
  public or private interest governing this right
  of access to documents shall be determined by the
  Council, acting in accordance with the procedure
  referred to in Article 251 within two years of
  the entry into force of the Treaty of Amsterdam.
• 3. Each institution referred to above shall
  elaborate in its own Rules of Procedure specific
  provisions regarding access to its documents.
• TREATY ON EUROPEAN UNION (Pogodba o Evropski
  uniji)
• 1. The Union is founded on the principles of
  liberty, democracy, respect for human rights and
  fundamental freedoms, and the rule of law,
  principles which are common to the Member States.
• 2. The Union shall respect fundamental rights,
  as guaranteed by the European Convention for the
  Protection of Human Rights and Fundamental
  Freedoms signed in Rome on 4 November 1950 and as
  they result from the constitutional traditions
  common to the Member States, as general
  principles of Community law.
• 3. The Union shall respect the national
  identities of its Member States.
• 4. The Union shall provide itself with the means
  necessary to attain its objectives and carry
  through its policies.
• See chapter V. and chapter VI.

3
Freedom of information in EU legal documents
giving you freedom of information right for EU
documents

• Aarhus convention Convention on access to
  information, public participation in
  decision-making and access to justice in
  environmental maters (Konvencija o dostopu do
  informacij, udelebi javnosti pri odlocanju in
  dostopu do pravnega varstva v okoljskih zadevah)
• Regulation (EC) No 1049/2001 of the European
  Parliament and of the Council of 30 May 2001
  regarding public access to European Parliament,
  Council and Commission documents (Uredba o
  dostopu javnosti do dokumentov Parlamenta,
  Komisije in Sveta)
• Detailed rules for the application of Regulation
  (EC) No 1049/2001 of the European Parliament and
  of the Council regarding public access to
  European Parliament, Council and Commission
  documents (Pravilnik o uresnicevanju Uredbe (ES)
  t. 1049/2001 Evropskega parlamenta in Sveta o
  dostopu javnosti do dokumentov Evropskega
  parlamenta, Sveta in Komisije)
• Council decision of 19 March 2001 adopting the
  Council's security regulations (2001/264/EC)
  (Sklep Sveta z dne 19. marca 2001 o sprejetju
  predpisov Sveta o varovanju tajnosti
  (2001/264/ES))
• Commission provisions on security (Pravilnik
  komisije o varnosti)

4
Freedom of information in EU documents
influencing national legislation of EU members

• Joint Declaration by the European Parliament, the
  Council and the Commission Concerning the
  protection of fundamental rights and the European
  Convention for the protection of human rights and
  fundamental freedoms,  Official Journal C 103 ,
  27/04/1977 P. 0001 0002
• Council Directive 80/68/EEC of 17 December 1979
  on the protection of groundwater against
  pollution caused by certain dangerous substances
  ( Direktiva sveta z dne 17. decembra 1979 o
  varstvu podzemne vode pred onesnaevanjem z
  dolocenimi nevarnimi snovmi)
• Council Directive 96/82/EC of 9 December 1996 on
  the control of major-accident hazards involving
  dangerous substances (Direktiva Sveta 96/82/ES z
  dne 9. decembra 1996 o obvladovanju nevarnosti
  vecjih nesrec, v katere so vkljucene nevarne
  snovi)
• Directive 2003/4/EC of the European Parliament
  and of the Council of 28 January 2003 on public
  access to environmental information and repealing
  Council Directive 90/313/EEC (Direktiva 2003/4/ES
  Evropskega parlamenta in Sveta z dne
  28. januarja 2003 o dostopu javnosti do
  informacij o okolju in o razveljavitvi Direktive
  Sveta 90/313/EGS)
• Directive 2003/98/EC of the European Parliament
  and of the Council of 17 November 2003 on the
  re-use of public sector information (Direktiva
  2003/98/ES Evropskega parlamenta in Sveta z dne
  17. novembra 2003 o ponovni uporabi informacij
  javnega sektorja)
• Directive 2008/1/EC of the European Parliament
  and of the Council of 15 January 2008 concerning
  integrated pollution prevention and control
  (Codified version) Text with EEA relevance
  (Direktiva 2008/1/ES Evropskega parlamenta in
  Sveta z dne 15. januarja 2008 o celovitem
  preprecevanju in nadzorovanju onesnaevanja
  (Kodificirana razlicica) (Besedilo velja za EGP ))

5
Freedom of information in EU legal perspectives

• Treaty establishing a Constitution for Europe
• Article II-102
• Right of access to documents
• Any citizen of the Union, and any natural or
  legal person residing or having its registered
  office in a Member State, has a right of access
  to documents of the institutions, bodies, offices
  and agencies of the Union, whatever their medium.
• II-102. CLEN
• Pravica dostopa do dokumentov
• Vsak dravljan Unije in vsaka fizicna ali pravna
  oseba s prebivalicem ali statutarnim sedeem v
• eni od drav clanic ima pravico dostopa do
  dokumentov institucij, organov, uradov in agencij
  Unije
• ne glede na nosilec dokumenta.

6
EU FOIA CASES

• Action brought on 20 February 2009 Dennekamp v
  Parlement (Case T-82/09) (2009/CPleas in law
  and main arguments to grant access to it to
• i) all documents showing which Members of
  Parliament (MEPs) are also members of the
  Additional Pension Scheme,
• (ii) a list of names of the MEPs that were
  members of the Additional Pension Scheme on 1
  September 2005 and
• (iii) a list of names of the present members of
  the Additional Pension Scheme for whom the
  Parliament pays a monthly contribution.
• Action brought on 23 October 2008 Toland v
  Parliament (2009/C 32/72)
• Annul decision A(2008) 10636 of Vice-President
  Dianna Wallis MEP of the Bureau of the European
  Parliament of 11 August 2008 addressed to Ciaran
  Toland insofar as it refused the applicant access
  to Internal Audit Report No 06/02 concluded on 9
  January 2008 of the Internal Audit Service of the
  European Parliament entitled "Audit of the
  Parliamentary Assistance Allowance"
• - Order the European Parliament to grant the
  applicant access to Internal Audit Report No
  06/02 concluded on 9 January 2008 of the Internal
  Audit Service of the European Parliament entitled
  "Audit of the Parliamentary Assistance
  Allowance"

7

• Judgment of the Court of First Instance of 11
  March 2009 Borax Europe v Commission (Case
  T-166/05) (2009/C 90/36)
• Re Application for annulment of the decision of
  21 February 2005 of the Secretary-General of the
  Commission refusing access to certain documents
  and sound recordings in connection with the 30th
  adaptation to technical progress of Council
  Directive 67/548/EEC of 27 June 1967 on the
  approximation of the laws, regulations and
  administrative provisions relating to the
  classification, packaging and labelling of
  dangerous substances (OJ, English Special Edition
  1967(I), p. 234) Operative part of the judgment
• The Court 1. Annuls the decision of 21 February
  2005 of the Secretary-General of the Commission
  refusing Borax Europe Ltd access to the
  recordings of the meeting of 5 and 6 October
  2004, to two drafts of the summary record of that
  meeting, to thirteen comments from experts, to
  two comments from industry represen-tatives and
  to the document submitted by the Danish
  Rapporteur
• Judgment of the Court of First Instance of 11
  March 2009 Borax Europe v Commission (Case
  T-121/05)
• Annuls the decision of 17 January 2005 of the
  Secretary-General of the Commission refusing
  access to certain documents and sound recordings
  in connection with the 30th adaptation to
  technical progress of Council Directive
  67/548/EEC of 27 June 1967 on the approximation
  of the laws, regulations and administrative
  provisions relating to the classification,
  packaging and labelling of dangerous substances
• Judgment of the Court of First Instance of 10
  September 2008 Williams v Commission (Case
  T-42/05)
• Application for annulment of the Commission's
  decision of 19 November 2004 partially refusing
  the applicant access to certain preparatory
  documents in respect of the legislation on
  genetically-modified organisms

8

• Judgment of the Court of First Instance (Third
  Chamber) of 30 January 2008 Ioannis Terezakis v
  Commission of the European Communities (Case
  T-380/04) (2008/C 64/52)
• Annulment of the Commission's decision of 12
  July 2004 refusing the applicant access to
  certain documents relating to the construction of
  the new Athens International Airport at Spata.
• Judgment of the Court of First Instance of 8
  November 2007 Bavarian Lager v Commission (Case
  T-194/04) (1) (Access to documents Regulation
  (EC) No 1049/2001
• Documents relating to proceedings for failure to
  fulfil obligations Decision refusing access
  Protection of physical persons in relation to
  processing of personal data
• Regulation (EC) No 45/2001 Concept of private
  life) (2007/C 315/62) Language of the case
  English
• Parties Applicant The Bavarian Lager Co. Ltd
  (Clitheroe, United Kingdom) (represented by
  initially J. Pearson and C. Bright, and
  subsequently by J. Webber and M. Readings,
  solicitors)
• Defendant Commission of the European
  Communities (represented by C. Docksey and P.
  Aalto, Agents) Intervener in support of the
  applicant European Data Protection Supervisor
  (EDPS), (represented by H. Hijmans, Agent) Re
• Application for annulment of the Commission
  Decision of 18 March 2004 refusing an application
  by the applicant for full access to the minutes
  of a meeting held in connection with proceedings
  for failure to fulfil Treaty obligations and for
  a declaration that the Commission wrongly
  terminated the proceedings brought against the
  Government of the United Kingdom of Great Britain
  and Northern Ireland under Article 169 of the EC
  Treaty (now Article 226 EC)
• Operative part
• The Court
• 1. Annuls the Commission's decision of 18 March
  2004, rejecting an application for access to the
  full minutes of the meeting of 11 October 1996,
  containing all the names
• 2. Orders the Commission to pay the costs
  incurred by The Bavarian Lager Co. Ltd
• 3. Orders the European Data Protection
  Supervisor (EDPS) to bear his own costs.

9
Council of Europe

• Recommendation No. R (81) 19 of the committee of
  ministers to member states on the access to
  information held by public authorities
• Access to official documents Recommendation Rec
  (2002) 2 of the Committee of Ministers and
  explanatory memorandum

10
European court of human rights

• HCLU v. Hungary , April 2009
• A Hungarian Member of Parliament filed a
  complaint with the Constitutional Court about
  Hungary's drug laws. The HCLU applied to the
  Court to receive a copy of the complaint, but
  were refused. The European Court of Human Rights
  (ECtHR) held that this interfered with the right
  of an NGO to access information that was needed
  for them to play their role as a public watchdog.
• The Court recognized for the first time that
  Article 10 of the Convention guarantees the
  "freedom to receive information" held by public
  authorities. The Court found that when the state
  has information of public interest in its
  possession, and is requested to disclose such
  information to a "watchdog" group - whether the
  press or NGOs that serve a watchdog role - it is
  obliged "not to impede the flow of information".
• The Court notes that states are obliged to
  "eliminate barriers to the exercise of press
  functions where, in issues of public interest,
  such barriers exist solely because of an
  information monopoly held by the authorities,"
  and concludes that the Constitutional Court's
  control of the requested information amounted to
  a similar sort of "information monopoly."
• The Hungarian Government, via the Constitutional
  Court, had justified withholding the requested
  petition on the ground that to release it would
  interfere with the right to privacy of the Member
  of Parliament who had submitted the petition.
• The Court found that the right of access to
  government information may be restricted at times
  to protect other rights, such as personal
  privacy, but any such restrictions must meet the
  three-part test set forth in Article 10(2) they
  need to be provided by law serve one of the
  legitimate interests listed in Art. 10(2) and be
  necessary in a democratic society. Applying that
  test to the current facts, The Court found "it
  to be quite implausible that any reference to
  the private life of the MP, hence to a protected
  private sphere, could be discerned from his
  constitutional complaint," and concluded that "it
  would be fatal for freedom of expression in the
  sphere of politics if public figures could censor
  the press and public debate in the name of their
  personality rights ...."

11
HRVATSKA

• ZAKON O PRAVU NA PRISTUP INFORMACIJAMA
• Broj 01-081-03-3491/2, 21.10.2003
• Ovlatenik
• Javne vlasti
• Informacija
• Dokument
• Pravo na pristup
• Potpunost
• Izuzeci
• Slubenik za informiranje

12

• With best wishes and good luck when practicing
  research journalism,
• Jurij urej