Keynote speech delivered by Graham Smith, Senior Adviser at the European Ombudsman's Cabinet during a meeting discussing work of Information Commissioners and Ombudsmen on public access to information and documents
Freedom of Information at the EU-level from the point of view of the European Ombudsman
1. European Ombudsman
Meeting of European FOI Commissioners
and Ombudsmen
Berlin 23rd
February 2017
Graham Smith
Cabinet of the European Ombudsman
Freedom of Information at the
European Union Level
2. European Ombudsman
Outline
• The European Ombudsman
• The EU Access to Documents regime
• Transparency and Access to Documents
• Access to Information or Documents?
• Information Commissioner or Ombudsman?
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3. European Ombudsman
European Ombudsman
Created in Maastricht Treaty (TEU) 1992
To reinforce the safeguarding of the rights of
citizens of the European Union
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4. European Ombudsman
Legal Framework
Ombudsman statute adopted 1994
To help uncover maladministration in the
activities of EU institutions, bodies, offices
and agencies
Make recommendations with a view to
putting an end to it
Complaints and own-initiative
powers
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5. European Ombudsman
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Ms. Emily O’Reilly
Investigative journalist and
author
Former Irish Ombudsman &
Information Commissioner
(2003 – 2013)
Elected 2013 & 2014
Mandate until 2019
6. European Ombudsman
Access to EU Documents
Regulation EC1049/2001
Former Code of Practice on Access to
Documents
Amsterdam Treaty
Remedies through court proceedings
And/or complaint to European Ombudsman
Charter of Fundamental Rights 2010 –
citizens’ rights
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7. European Ombudsman
Regulation EC 1049/2001
19 Articles
Art. 1 – Purpose Clause (+ 17 recitals)
... in such a way as to ensure the widest
possible access to documents
... ensuring the easiest possible exercise
of this right
... to promote good administrative
practice...
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8. European Ombudsman
Recitals
Treaty... enshrines the concept of openness... in
which decisions are taken as openly as possible
and as closely as possible to the citizen.
Openness enables citizens to participate more
closely in the decision-making process...
...and guarantees that the administration enjoys
greater legitimacy...
Openness contributes to strengthening the
principles of democracy and respect for
fundamental rights.
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9. European Ombudsman
Legislative Process
Wider access should be granted to
documents in cases where institutions
are acting in their legislative capacity,
including under delegated powers...
... while at the same time preserving the
effectiveness of the institutions’
decision-making process
Art. 12(2) “directly accessible”
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10. European Ombudsman
Transparency and Access to
Documents
Regulation 1049 – “The Transparency
Regulation”
Real-time and retrospective
transparency
Accountability and citizen participation
Access to documents as good
administration
Non-compliance = maladministration
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14. European Ombudsman
Access to Documents or Information?
6
Does it matter?
Issues of statutory definition
Art.3(a) “... any content whatever its medium
(written on paper or stored in electronic form or
as a sound, visual or audio-visual recording)
Scotland & UK: “... information recorded in any
form”
Partial disclosure is required and very common,
with redactions where parts are excepted
16. European Ombudsman
Procedural issues
• Written applications
• “Confirmatory applications”
• Time limits
• Fees
• Duty to advise and assist
• Third party consultation
• Member State consultation
• Reciprocal requirement on MS
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17. European Ombudsman
Other features of the EU regime
• Few exceptions, but very broad
• More absolute exemptions
• Class presumptions from case law
• Courts put onus on applicant to demonstrate
overriding public interest
• Strict necessity test for personal data
• Institutions shall refuse access if an exception
applies
• Ombudsman as alternative to court remedy
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18. European Ombudsman
Information Commissioner or
Ombudsman?
Ombudsman role – maladministration
Not limited to subject-matter of complaint
Can make recommendations for future
action
Decisions not legally binding
Respect for decisions vital to success
Power of (adverse) publicity
Importance of Parliamentary support
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19. European Ombudsman
Review Reg.1049/2001 unlikely
EU directive on access to information unlikely
Standards and expectations across Europe vary
Transparency is more than access to documents
Best practice v lowest common denominator
Importance of working with what you’ve got
Nothing can be taken for granted
Making it work for citizens
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Concluding remarks
TTIP transparency
Concerns about key documents not being disclosed, alleged granting of privileged access
July ‘14: EO opened investigations against Council and Commission
Oct. ‘14: Council published negotiating directives
Nov. ’14: Commission announced broader access to TTIP documents
Jan. ‘15: EO welcomes these steps, but makes 10 recommendations on how to further increase TTIP transparency