Justice
JUSTICE commentary
The right to access the various documents of the institutions of the European Union is guaranteed by the European Community as well as in many other states within the international community and within other international bodies. It reflects the growing recognition of the importance of freedom of information to democracy and the transparency of democratic institutions. Specifically, there are four reasons for such transparency.  The first of these is to invite citizens to participate more fully in the decision-making progress.  By creating an environment of openness, citizens have a greater awareness of the workings of the EU and can provide more effective participation.  A second reason for openness is to promote the legitimacy of the institutions.  Citizens who can see the work products of governing institutions are more likely to trust their leaders and the decisions they make.  Finally, openness strengthens principles of democracy by making leaders and institutions accountable to the public for the decisions they make. 
 
This article applies to any citizen of the European Union, as well as any other legal or natural person who lives in or has a registered office in one of the Member States.
 
Access to documents: general
 
Different states have each implemented provisions similar to Article 42 of the Charter for Fundamental Rights in their domestic laws.[1]  Some states have enshrined this notion of openness in their constitution such as the Belgian Constitution[2] for example.  Other states have enacted separate legislation to accomplish this right like the Irish Freedom of Information Act of 1997 which provides in part: “every person has a right to and shall, on request therefore, be offered access to any record held by a public body.”[3]  Still other countries like Greece[4] have found ways to grant public access to documents and records through alternative legislative means. 
Exceptions to access to documents
The right to access documents is not an absolute right.  Different nations and institutions have qualified the freedom to access documents with various exceptions.  In establishing this right, the EU sought to give citizens “the widest access possible” to all Commission, Council and Parliament documents.  However, despite giving EU citizens “the widest access possible”, exceptions to this right have been introduced[5] to this rule.
Protection of the public interest
The first exception states that the institutions shall deny access if disclosure of the information contained in the documents would undermine the protection of the public interest or the privacy and integrity of an individual.  This is one of the most frequently cited exceptions by the institutions of the EU. 
 
The “public interest” includes matters of public security, defence and military matters, international relations and the financial, monetary and economic policies of the Member States and Community.  The ECJ has held that public interest grounds “may justify preserving the confidentiality of certain passages… where the people who have provided the information are cited.”[6]  The institutions have, therefore, the obligation to withhold documents or information only when the harm to the public interest is “reasonably foreseeable” and not merely “hypothetical.”[7]  A distinction is often made between information that serves a distinct military purpose from documents that discuss the political climate of foreign states.  Information about the political climate of a foreign state is often already public information, and may not be harmful to release, or may have changed for better or worse since the time the document is produced.[8]
Documents of commercial interest
The second exception provides for the protection of documents that involve the commercial interests of natural or legal persons, court proceedings or legal advice and information that details the purpose of an inspection, investigation or audit.  Documents, for instance, involving someone’s personal finances or information surrounding an investigation into personal finances are protected by the EU institutions.  More complicated is the exception for “court proceedings and legal advice”. This exception has been interpreted quite liberally.  It has been held that any documents drawn up by the institutions’ legal services for any purpose qualify for protection under this exception.[9]  The court may order the release of documents protected by this exception if it determines that there is an overriding public interest in the disclosure of the information they contain.
Documents crucial to the decision-making process of an institution
The third exception provides for protection against the release of documents that are crucial to the decision-making process of an institution.  This exception applies both before and after any decision has been made or course of action has been taken by the institutions. The institutions believe that the disclosure of these documents can severely undermine the decision-making process in general.  Again, the court may order the release of these documents if it finds there is an overriding public interest in their disclosure.
Documents created by third parties
This exception has long been one of the most contentious exceptions carved out of the right to access documents within the EU.  Prior to its present form[10], the individual institutions considered documents created by third parties, including Member States, to be outside the scope of the freedom to access documents[11].  This has been modified in the current regulation. Consultation with third parties is now only required in order to determine if there may be grounds for withholding documents authored by them under either of the first two exceptions under Article 4 of 1049/2001.
 
The new language requiring only “consultation” is a significant advancement from the old language that permitted the institutions to automatically withhold anything authored outside a EU body[12]. 
 
Significant problems emerged from this authorship exception.  In particular, persons seeking a series of documents in an attempt to justify an allegation of violation of law were often only provided with those correspondences authored by EU institutions.  Access to all other documents generated from third parties and Member States was denied under the authorship exceptions.
Documents authored by Member States
The fifth exception provides a new, separate rule for documents authored by Member States, splitting the former authorship between third parties, as outlined in the fourth exception above, and Member States. 
 
States may request institutions not to release a document without the prior assent of that State for those documents originating there.[13]  Thus, the Member States receive “special treatment” under Regulation 1049/2001 in that they retain the power to withhold, without reason, any documents they do not wish to have released.[14]  This is consistent with the Community’s objective[15] that has no intention to object or amend national legislation on access to documents.
Additional guidelines to determine the exceptions
A couple of additional guidelines have been provided in order to determine when exceptions may be employed.  First[16], partial access to documents will be required if only certain parts of them are subject to the exceptions.  Thus, an institution or third party cannot insert information that would meet the requirements for an exception and use the presence of such information in a document to block access to the entirety of the document.  The Court has often used this device to strike a balance. It often looks at what the EU institution might have done to release portions of the information contained in the document while at the same time it tries to protect the interests by denying access.  The court has been explicit in noting that this upholds the principle of transparency while at the same time observing the principle of proportionality.[17] 
 
However, in spite of this, the Court has taken a very pragmatic approach to the logistics of such principles.  In some cases, general information may regularly contain protected information, such as the names of private parties.  Thus, the Court has held that when there is a heavy administrative burden associated with providing partial access to documents by having to remove all the protected information of a document, the request for access may exceed what is reasonable and the Court will deny access completely.[18]
 
The other mitigating factor in the application of the exceptions to the right to access documents involves information that is time sensitive.  Thus, documents may be protected for up to 30 years.  After 30 years those documents are declassified and the protections they have no longer applies.  Sometimes documents won’t be made accessible even after 30 years. An extension of protected documents beyond 30 years can be warranted.
Conclusion
The freedom to access documents is often disappointingly not as closely protected as many of the other freedoms afforded under the Charter of Fundamental Rights.  The institutions of the EU and Member States have been given a great deal of power with respect to what documents they find and have often been exempted from the obligation to disclose.  Generally, the can protect the documents they produce by claiming protection of the public interest or by deferring to the Member States. 
 
There are some watch groups within the EU that closely monitor the access to documents.  They estimate that less than one-half of all Council documents generated by the EU are actually accessible to EU citizens and that the register the Commission keeps of its documents is “disgraceful.”[19]  More and more representatives are calling for greater transparency today, however.  In a hope to be viewed as a much more transparent governing body and reliable public authority, there is a movement to open up the access to information and documents more than before.
 
The EU Ombudsman, for instance, is designed to review complaints of mismanagement or failure to comply with EU law by any of the governing institutions.  The Ombudsman begins by making an inquiry into the facts of the allegation, requesting a response of the institution involved, assessing the procedures undertaken and providing decisions related to the conduct of those institutions.  Viewing his homepage is very helpful in understanding a more basic application of the right to access documents as he often hears complaints on this issue.  To view his page, click here.
 
Finally, there is additional legislation concerning the access to documents relating to the historic archives of the European Economic Community (EEC) and the European Atomic Energy Community (Euratom).  Council Regulation 1700/2003 of 22 January 2003 provides guidelines for the release of and access to information concerning these bodies.
 


[7] Ibid, paragraph 56.
[8] Ibid.
[13] Ibid, paragraph 54.
[18] Ibid, paragraph 57.