His experience calls into question the good faith of those politicians and diplomats who declare support for transparency in principle, but work behind the scenes to defeat it in practice.t

The complaints relate to documents concerning the workings of the Council of Justice and Home Affairs Ministers, the K4 Committee, and its Steering Groups.

Tony Bunyan commented:

The Council of Justice and Home Affairs Ministers decides olicies and practices in secret which cannot be amended and are not subjected to open, democratic debate. It is time to again challenge the culture of official secrecy advocated by some EU Member States before it is too late.

The 1996 Intergovernmental conference is intending to introduce a clause into the Treaty of European Union on openness and transparency. But, at the same time, it is being proposed that public access to documents should only be allowed to tlegislative actst of the Community – which would exclude 95% of the decisions taken by the Council of Justice and Home Affairs Ministers and its subordinate groups. If this happens any commitment to openness will be meaningless. – ends –

BACKGROUND NOTES

1. On 20 May the Council of Ministers split 8-7 over a decision to deny Tony Bunyan access to K4 Committee Minutes. The voting was: For secrecy: France, Belgium, Spain, Germany, Austria, Luxembourg, Portugal and Italy. For openness: Denmark, Sweden, Finland, Netherlands, Ireland, Greece and the UK.

2. In the Secretary General’s report on the Council’s implementation of public access to documents in the 2 years 1994 and 1995 it states on page 9: ta single applicant submitted 14 requests involving more than 150 documents, i.e: more than one third of all the documents requested by all applicantst (emphasis in original). The person referred to is Tony Bunyan. The respective figures so far in 1996 are: 24 applications for information, 12 confirmatory applications (appeals), total of documents applied for: 774 (160 concerning 1996 reports; the rest for 1992-5).

The question of numbers of documents requested is irrelevant, partly, because since 27 February 1996 the Council has charged applicants for copying and postage. More importantly, the Council of Ministers having agreed policies and measures in secret which affect the rights of citizens and refugees then complains because people want to find out what has been decided.

3. The European Ombudsman was set up in 1994 to investigate cases of maladministration concerning European community institutions and bodies. The first European Ombudsman, Mr Jacob S?derman, was elected on 12 July 1995. His office is in Strasbourg (tel: 00 33 88 17 23 13).

4. Tony Bunyan is a journalist who specialises in the tthird pillart and is editor of Statewatch. Statewatch, founded in 1991, is an independent group which works on the state and civil liberties in the UK and Europe. It publishes Statewatch bulletin, has an extensive library and a searchable database on the Web (http://www.poptel.org.uk/statewatch/).

5. This press release is being simultaneously released in: Brussels (Press Conference), London, Dublin, Amsterdam, Bonn, Copenhagen and Bern.

Secrecy, democracy and the European Union

Open, transparent and accountable decision-making is the essence of any democratic system. Secrecy is its enemy and produces distrust, cynicism and apathy among voters and closed minds among policy makers. EU governments must not assume that they know best and can legislate without informing the public and without allowing any debate.

The current battle to obtain documents produced by the Council of Europe and the Home Affairs Ministries is central to the maintenance of democratic standards within the European Union. We must have the right to be informed of new policy proposals and the practices that flow from them, we must have the right to be able to comment upon them, and we must have the right through democratic processes to oppose or alter them. None of these rights currently exist in relation to the majority of policies developed in relation to policing, immigration and asylum. Dozens of new policies have been developed in secret and agreed in secret.

These policy areas pose the biggest threat to civil liberties and the human rights of citizens both within the EU as well as those who seek to enter as refugees and asylum seekers. European history suggests that it is in these areas that it is essential to have the most open and transparent system of policy-making. Yet policy-making in these areas is highly secretive and undemocratic. Citizens in the EU are currently more informed and have more chance to influence regulations concerning the shape and size of a cucumber than they are concerning new laws extending the powers of the police and immigration officials.

The complaints registered with the European Ombudsman all concern gaining access to documents on measures already agreed by the Council of Ministers. The fundamental issue, however, is for parliaments and people to have access to proposals before they become law so that they can seek to influence, amend, or oppose them. This issue is not even addressed by these complaints.

At the very least people and parliaments have a absolute right to get all the documents which have led to a decision and which have been agreed. In the case of the Council of Justice and Home Affairs Ministries this means documents considered by: the Council itself, COREPER, the K4 committee and the three Steering Groups. This excludes the findings of the “experts” at the Working Party level.

Legitimacy

For measures adopted by governments to be legitimate, that is to be accepted by citizens as valid, four criteria have to be met:

• the measures must be seen to meet a “need” which the executive (governments) is able to argue publicly and in detail
• measures must be open to public debate and discussion, be open to amendment, and be adopted in an open democratic manner
• measures adopted must be available to citizens
• measures must be seen as “fair”, and subject to accountability (to parliaments and/or courts) in practice.

The intergovernmental “third pillar” of the European Union meets none of these criteria.

DOSSIER of COMPLAINTS:

Complaints concerning the European Council’s code on public access to documents lodged by Tony Bunyan, Editor of Statewatch, with the European Ombudsman on 27 November 1996

Statewatch, PO Box 1516, London N16 0EW, UK tel: (00 44) 181 802 1882 fax: (00 44) 181 880 1727

COMPLAINT No 1

This complaint concern the misapplication of the Council decision on public access to Council documents

1. On 27 February 1996 I requested copies of the Minutes of the meetings of the K4 Committee (known as the “Outcome of Proceedings”). The K4 Committee comes under the Council of Justice and Home Affairs Ministers.

In making this request I listed all the dates of the 14 meetings to avoid being ruled out of order by being “imprecise” – a reason given in previous replies for applying a “fair solution” which usually means supplying on some of the documents requested.

2. On 3 April the General Secretariat of the Council replied sending only 5 of the 14 requested documents on the grounds that they were applying a “fair solution” as my application was a “repeat application” and it concerned a “very large number of documents”.

3. On 17 April I made a confirmatory application saying that it was not a repeat application as I had never applied for these documents before. Nor did it concern “very large documents” (that is, a large number of pages) as the Code of Access sets out.

4. The Council Presidency replied on 23 May 1996 upholding their original decision.

Background

1. A request to the Council dated 3 May 1994 (Council reply: 9 June 1994; ref: 4981) asked for the: “Timetables and provisional agendas of meetings of the K4 Committee held so far this year” was provided by the Council. No dates of the meetings had been provided in my letter, and the request was not treated as invalid on grounds of being “imprecise”.

Two previous requests for information had led to only a partial response from the General Secretariat (their letters of 22 November 1995 and 1 December 1995). These were on the grounds that the request was “too imprecise” (under Article 2.1 of the Code) and that therefore a “fair solution” (Article 3.2) had been applied.

In neither case did I consider my requests “imprecise”.

In the first (reply of 22 November 1995) I had requested the Agendas of “each of the three Steering Groups under the K4 Committee since November 1993.” I received 3 random Agendas, one from each of the Steering Groups.

In the second I had requested copies of the Agendas of “each of the Working Parties under the three Steering Groups of the K4 Committee since November 1993” and those of the “Horizontal Group since 1 November 1993”. I received the Agendas of 1 meeting of each of the 16 Working Parties.

I had named the groups precisely and asked for information from the start of the new structures under the Maastricht Treaty which came into effect since 1 November 1993.

As these replies did not provide the information asked for I decided to obtain the actual dates of the meetings for future requests into order not to fall into the “imprecise” trap.

In two requests for information, dated 27 February 1996, I included dates of the meetings. In the first I requested the Agendas of 22 meetings of the three Steering Groups in 1995. In reply, on 28 March 1996, I was told a “fair solution” was to be applied, not on the grounds of being “imprecise” but now on the grounds that:

“Your request in this regard [referring to Article 3.2] is considered to be a repeat application which relates as well to very large documents.”

I was sent 3 Agendas out of the 22 requested (two of which were for dates I had not listed).

A few days later I received a second reply, 3 April 1996, from the General Secretariat of the Council using exactly the same grounds to refuse access to the Minutes of the K4 Committee.

In neither case had I applied for these documents before.

In retrospect it appears that it was about this time that the Council had completed its review of the Code of access for 1994-1995 which was made public in October 1996. It included the following paragraph:

“a single applicant submitted 14 requests involving more than 150 documents, i.e. more than one third of all the documents requested by all applicants” (emphasis in original)

This is clearly a reference to my applications. The report goes on to suggest ways of trying to limit requests from people such as me.

These facts were unbeknown to me when I decided to make a confirmatory application on one (the K4 Committee Agendas) of these first two instances of applying a “fair solution” inappropriately.

Analysis of the Council’s response:

1. The key phrase is at the end of the second paragraph:

“your request… constitutes a repeat application similar to those you have presented in the past.”

To the layperson the meaning of a “repeat application” and a “similar” application is quite different.

It seems they are trying to argue that because most of my requests for access have concerned the Council of Justice and Home Affairs Ministers (JHA field) all my requests for access can be viewed as “repeat applications” because they concern the JHA field and are therefore “similar” – even though each of my requests is distinct and different.

The 1st sentence in the 2nd paragraph says:

“Your applications, which in an overwhelming number of cases have been related to activities in the JHA field, have always involved requesting first the agendas and then the documents referred to in the agenda.”

How I was meant to know which documents to apply for unless I had the Agendas is beyond me – especially as I had to avoid being “imprecise”.

2. “Repeat applications” were – as I know from my long correspondence with the Council – clearly intended to refer to a situation where an individual having been refused a document once applied for it again and again (see Declaration by Denmark and Sweden below).

3. The argument that I had applied for a “very large number of documents” is equally invalid. The “Council decision on public access to Council documents” states in Article 3.2:

“The relevant departments of the General Secretariat shall endeavour to find a fair solution to deal with repeat applications and/or those which relate to very large documents.” (emphasis added)

There is no reference to the number of documents but to documents with a large number of pages.

Moreover, since the Council introduced a system of charging for documents provided (27 February 1996) the size or number of documents surely become irrelevant.

Paragraph 4 of the Council’s reply on 23 May seems to imply that I am correct about “very large documents” not meaning “a very large number of documents” (although they have continued to apply this rationale since).

4. My view was supported in the Council of Ministers on 20 May 1996 by the governments of: Denmark, Sweden, Finland, Ireland, Greece, the Netherlands, and the UK. The Council divided 8 votes to 7 votes in favour of the reply I was given – this apparently followed very lengthy discussions in the Working Party on Information (the first stage of the appeal process) and then in COREPER.

On 20 May 1996 (Industry Council, Mr Bersani for the Presidency) the Danish and Swedish delegation made a Declaration which says:

“They disagree with the interpretation of the term “repeat application” contained in Article 3(2) of the Council Decision as they consider that the term must be particularly intended for cases where the same applicant requests access to the same document on more than one occasion.”

Indeed the public Declaration made by the French and Belgian delegations indicates that the decision was taken in a charged atmosphere over the general issue of citizens’ access to documents.

The French and Belgian delegations said, in a Declaration officially published in the Council press release of the meeting on 20 May 1996:

“They consider the applications by Mr Bunyan are repeat applications, that they are contrary to the spirit of the 1993 decision and that they abuse the good faith of the Council in its willingness to be transparent. They accordingly consider the reply to be “fair” within the meaning of the 1993 decision.”

Complaints

1. That a “fair solution” should not have been applied, within the reasonable meaning of Article 3.2, in response to my request.

2. That the Council’s response to my request constitutes maladministration on grounds of: refusal of information, unfairness, and abuse of power.

COMPLAINT No 2

This complaint concerns three instances where the Council appears to have destroyed documents which are of “historical value”.

1. I had been told on 22 November and 1 December 1995 that my requests for the Agendas of the groups coming under the K4 Committee were “too imprecise”. After making inquiries I obtained the dates of meetings held under the K4 Committee structure since 1 November 1993 (when the Maastricht Treaty came into effect).

On 5 December 1995 I sent a request for the Agendas of 11 meetings, with dates, which had been held between 1 November 1993 and 31 December 1993.

The Council replied on 3 January 1996 as follows:

“.. I have to inform you that Agendas for these meetings only existed as telexes which are not kept for more than a year.”

2. A further letter, dated 19 December 1995, requesting the Agendas of the meetings of the Steering Groups and their Working Parties during 1994 (a full list of the dates of the meeting was enclosed). I had not, of course, at this stage received the Council’s letter of 3 January 1996 (above).

On 2 February 1996 the Council replied to my letter of 19 December 1995 again stating:

“Agendas for these meetings only existed as telexes which are not kept for more than a year.”

3. On 22 May 1996 I wrote to the Council requesting copies of the “Calendar of Meetings” held under Justice and Home Affairs for the following Presidencies: July-December 1994; January-June 1995; July-December 1995; January-June 1996.

I did this in the knowledge that I had previously received from the Council a copy of the “Calendar” for March-June 1994 (Council reply 9 June 1994; ref: 4981).

On 1 July 1996 (ref: 5797) the Council replied:

“The Calendars of these Meetings are not conserved.”

4. On this occasion I decided to take the matter up and wrote to the Council on 16 July 1996 asking it to re- consider its policy of not “conserving” the “Calendar of Meetings”. In replying to this letter Mr Lowry, for the Presidency of the Council, failed to address my request (30 September 1996; ref: 8529).

Analysis:

1. It appears that the Agendas referred to have been destroyed, while the “Calendars” which are “not conserved” presumably have also been destroyed.

2. It is suggested that these Agendas were not kept because they “existed as telexes which are not kept for more than a year”. Is a “telex” not a document? Why is an Agenda in “telex” form different from another form? The Agendas I had received on 22 November and 1 December 1995 were photocopies of “telexes”.

3. The Council Decision of 31.12.93 clearly states that an application can be made for “any document, whatever its medium..” and makes no reference to “telexes” being an exception.

4. Moreover, “Council Regulation (EEC, EURATOM) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community” refers to the creation of “Community archives” and “historical archives” (para.2 a & b).

“Community archives” is defined as:

“all those documents and records of whatever type and in whatever medium which have originated in or been received by one of the institutions or by their representatives or servants in the performance of their duties, which relate to the activities of the European Economic Community…”

“historical archives” is defined as:

“that part of the Community archives which has been selected, on terms laid down in Article 7 of this Regulation, for permanent preservation.”

Article 7 says each institution shall transfer to the historical archives “all documents and records contained in their current archives no later that 15 years after the date of their creation.” The exception being “according to criteria laid down by each institution.. there shall be an initial sorting process with the purpose of separating documents and records that are to be preserved from those that have no administrative or historical value.” (emphasis added).

The European Council appears to be destroying Agendas of meetings

held under the Council of Justice and Home Affairs Ministers after 1 year which clearly have an “historical value”. The same applies to the “Calendar of Meetings”. Both contain essential information for the citizen in establishing the historical record of the Council’s activity.

Complaint

1. The action of the Council in not “conserving” documents of “historical value” constitutes maladministration on the grounds of: administrative irregularities; negligence; and possibly unlawful procedures.

COMPLAINT No 3

This complaint concerns lack of information.

On 22 May 1996 I wrote to the Council requesting a list of all the decisions concerning “Justice and Home Affairs” taken by written procedure or by another Council of Ministers since 26 October 1995 (having received such a list covering 1995 to this date).

On 1 July 1996 (ref: 5797) the Council replied that:

“Such a list does not exist; there are no Council documents as such (Article 1.2).”

This response was clearly not open to a confirmatory application.

Analysis

1. It appears that the only obligation placed on the Council is to provide a list of all decisions covering decisions relating to the Council of Justice and Home Affairs Ministers at the end of each calendar year (report on the functioning of the Treaty of the European Union).

2. A number of decisions relating to the business of the Council of Justice and Home Affairs Ministers are not taken by the Council of Ministers itself but by either by written procedure (eg: the Europol Convention in July 1995) or by another Council of Ministers (eg: the Telecommunications Council on 27 September 1996: Recommendation on Combatting the illegal employment of third-country nationals and the Environment Council on 15 October 1996: Joint Action concerning the creation and maintenance of a directory of specialised counter-terrorist competencies, skills and expertise).

Indeed at the Council of Justice and Home Affairs Ministers in Luxembourg on 4 June 1996 a total of 11 measures were blocked by the UK government. These included the two measures put through the Telecommunications and Environment Councils above.

3. The citizen is unable to obtain a list of the measures agreed by this Council of Ministers (except at the end of the year).

Complaint

1. It appears that the Council is not obliged to produce a regularly updated list of the measures agreed by the Council of Justice and Home Affairs Ministers. In the interests of informing the citizen and of democratic standards the Council should maintain a list of measures adopted. Moreover, it is surely unacceptable that citizens cannot find out what measures have been adopted. The complaint of maladministration is: lack of information.

COMPLAINT No 4

This complaint concerns lack of information.

Following the response received on 1 July 1996 (see complaint no 3) to the effect that “Calendars of Meetings” under Justice and Home Affairs were not “conserved” I, logically, wrote requesting said “Calendar” for the current Presidency of the Council (July-December 1996) on 11 July 1996.

The Council replied on 29 July 1996 (ref: 7279), citing Article 2.2 of the Decision:

“where the requested document was written by a natural or legal person, a Member State, another Community institution or body, or any other national or international body, the application must not be sent to the Council, but direct to the author.”

The letter went to say:

“The responsibility for the Calendar of Meetings lies with the Presidency and not with the Council’s General Secretariat, and you must therefore ask the Irish Presidency directly.”

I duly wrote to the Irish Delegation in Brussels for a copy of the “Calendar” on 15 August 1996. They replied two months later on 15 October 1996 saying: “I regret to have to inform you that it is not proposed to make publicly available the information in question.”

As the “Presidency” was being represented as a separate “institution” to the Council no appeal mechanism existed.

Analysis

1. Following this correspondence I took legal advice. This was that the “Presidency” is not “another Community institution or body”. The Presidency is rather a function and an office of the Council. It appears therefore that the response from the Council’s General Secretariat on 29 July 1996 was totally misleading.

Complaint

1. In the light of previous attempts – partly documented in these complaints – by the Council to restrict my access to information the complaint of maladministration is based on: lack of information and unfairness.

COMPLAINT No 5

This complaint concerns the Council’s failure to give specific reasons for denying access to each individual document and using arguments for denying access which have no basis on the Council Decision

On 15 February 1996 I applied for copies of the reports considered at the meeting of the Council of Justice and Home Affairs

Ministers held on 9-10 March 1994 (24 documents) and for those considered at the meeting of the K4 Committee on 3-4 February 1994 (17 documents).

The documents applied for were, by the time of the Council’s reply on 15 March, two years old.

Initially I was granted access to:

a) 7 out of 11 reports on the “A” point Agenda b) 5 of the 13 documents from the Main Agenda c) 5 out of 17 documents from the K4 Committee meeting

Access was given to a total of 17 out of 41 reports requested. 24 were refused.

Access to 19 documents was refused on the following grounds:

“It has been decided that the interest of the Council in maintaining the confidentiality of its deliberations is greater that your interest in obtaining access. Consequently, the following documents will not be disclosed to you.”

Access to 4 reports was refused under Article 4. and to 1 report because it was a letter from UNHCR and therefore originated in another body (Article 2.2)

On 2 April I made a confirmatory application for access to 23 reports to which the Council Presidency replied on 2 May 1996.

Access to 7 more reports was granted. This meant that overall:

access was given to a total of 24 out of 41 reports requested. 17 were refused.

Access was denied to 10 reports (5 from the Council meeting and 5 from the K4 Committee meeting) reports on the grounds that:

“consideration of your request involved balancing your interest in gaining access to these particular documents against the interests of the Council in maintaining the confidentiality of its deliberations. The Council concluded that the latter interest outweighed the former in this case, particularly since the documents in question record detailed national positions with regard to Conventions which have only recently been established or other legal instruments still under discussion or very recently adopted . They also contain internal information on procedures for the recruitment of staff to the institutions and the choice of consultants in the JHA field. Moreover, one of these documents is a working document for internal organisation purposes on protection of classified information, and others contain opinions of the Council Legal Service, which are for the exclusive use of the Council in its deliberations although they are not binding on it.” (emphasis added)

Access to 5 reports was denied under Article 4.1 and access to 1 report under Article 4.2.

Analysis:

1. All 7 documents to which access was now granted had originally been defined as inaccessible because the Council interest’s of confidentiality were greater than mine. So between 15 March and 2 May these reports had acquired a different status.

2. The category of refusal of access which gives the greatest cause for concern is also that under which most of the documents were refused under the confirmatory application: 10 reports.

The long, undifferentiated, list of reasons for refusing access to these 10 reports is unacceptable. Some seven different reasons are offered for refusal of access without specifying which reasons apply to which documents. The attached Declaration by the Danish delegation supports my view on this:

“The Danish delegation does not find, however, that the reasons given for denying access to other documents are satisfactory as the answer does not explain to the applicant the background for denying access in respect of each individual document.” (ref: 6796/96 Presse 116)

However, if phrases like:

“Conventions which have only recently been established” and

“very recently adopted”

are employed to deny access the citizen in entitled to ask: when is a decision not recently adopted or established? Is it 6 months, one year, two years, or longer?

Two of these reports referred to the Europol Convention which had been signed by the governments of the Member States the previous summer, on 26 July 1995. Three referred to immigration and asylum policies.

The concept of “recently” adopted or established is nowhere referred to in the Council decision on public access to Council documents.

3. One of the 10 reports refused in this overall paragraph – clearly SN 1100/94 dealing with the “protection of classified information” – is described in the 3rd paragraph on page 3 of the Council’s reply of 2 May 1996 as not having: “a classification code” because it is a “working document.. produced for internal purposes only.”

However in the 5th paragraph of the Preamble to the Council Decision of 20 December 1993 it states that the Decision is “applicable to any document held by the Council, whatever its medium… “. Therefore the grounds that it was for “internal purposes only” is not sufficient grounds for refusal of access.

4. As a footnote to this application it was one of two occasions when the Council invoked Article 3.1. This clause allows the Council to grant access by the applicant to documents “on the spot” instead

of sending copies through the post as they had done in over a dozen previous instances. This meant I had to go to Brussels to photocopy the documents in order to gain access, which is what I did on the first occasion. When I arrived in Brussels on the second instance of access being granted “on the spot” I was informed that a charging system had been introduced and that in future it would not be necessary to go to Brussels.

Complaint

1. The Council failed to provide specific reasons for the refusal to give access to each individual document.

2. The Council denied access to some documents on the grounds that they were “only recently been established” or “very recently adopted” which have no basis in the Council Decision of 20 December 1993.

3. The complaint against the Council of maladministration in this instance is: refusal of information and administrative irregularity.

Statewatch

PO Box 1516, London N16 0EW Tel: 0181 802 1882 Fax: 0181 880 1727 e-mail: statewatch-off@geo2.poptel.org.uk

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