3. Specification of the Concept

and article 8:79 of GALA. Article 121 of the Constitution, in short, is about the obligation that judgments shall be held in public and specify the grounds on which they are based. Article 8:79 of GALA is about the obligation to send judgments to the parties and the possibilities for others to ask for judgments. It is about the question of whether one party can get information from the other party in the trial in which the first party wants to build up its argumentation. Mostly, there are specific regulations about transparency on this type of information.

Finally, there is a topic where the principle of transparency has already functioned for a long time and in a rather different way. Sometimes the government uses market competition to get a contract with the lowest price, or at least with the best pricequality ratio. There are different examples in the field of economic law but we find it also in the field of public procurement law.13

3. Specification of the Concept

Transparency and transparent governance are—as we saw earlier—related to democracy. In essence, three sub-principles are distinguished here: transparent meetings of the government; transparency of governmental acts; and transparency of governmental information.

(a) Transparent meetings of the government This paragraph will show how these three sub-principles have been specified in the Dutch legislation as a case study. Meanwhile, we have to make it clear that these three sub-principles are relevant for all the four powers in the state. First, the principle of transparency of meetings of the administration can be explained by an example of a regulation about the meetings in the Parliament of the Netherlands. In the Rules of the House of Parliament we read:

Article 38. Breach of confidentiality 1. Secrecy shall be observed with regard to the content of confidential documents and the exchange of views in a private Committee meeting, with the exception of what the Committee states in its report. 2. The Committee may permit the members and the Ministers to disclose what they themselves have said in a private meeting, provided that the confidentiality of statements made by other persons is not thereby breached. 3. The Presidium may propose to the House that a member who has breached the confidentiality of a Committee meeting or of a document be excluded from all meetings of one or more Committees and/or be barred from receiving confidential documents for a maximum of one month. 4. The proposal may not be made until after the member to be excluded and the chairman of the Committee meeting whose confidentiality has been breached have been heard or in any event properly summoned to attend. 5. The proposal shall be put to the vote at the start of the first meeting after the day on which the Presidium decides to make the proposal. No debate shall be held on this proposal. 6. A decision to exclude a member shall be immediately communicated in writing by the

President to the members of the House.

13 Wibowo 2017, 21.

This type of regulation on transparency in relation to the parliament can be found in almost every country. Similar regulations have often been developed for the meetings of the council of ministers and other institutions. These regulations can be found not only at the central level but on the level of the decentralized government as well.

(b) Transparency of governmental acts The second sub-principle of transparency is related to the transparency of other types of acts of the administration. For public acts, the most common are orders, regulations, decisions, policy rules, and plans, but sometimes public contracts and factual acts are also seen as examples of public acts.14 As an example, we will take the transparency regulation on ‘orders’ in the Dutch GALA. In this Act, a special paragraph is dedicated to ‘Notification and communication’. The content of some of the articles in this paragraph is as follows: Division 3.6 Notification and communication Article 3:40

An order shall not take effect until it has been notified.

Article 3:41 1. Orders which are addressed to one or more interested parties shall be notified by being sent or issued to these, including the applicant. 2. If an order cannot be notified in the manner provided in subsection 1, it shall be notified in any other suitable way.

Article 3:42 1. Orders which are not addressed to one or more interested parties shall be notified by means of a notice of the order, or the substance thereof, placed in an official government publication, newspaper or free local paper, or in any other suitable way. 2. If notice is given only of the substance, the order shall at the same time be deposited for inspection. The notice shall state where and when the order will be deposited for inspection.

(c) Transparency of governmental information Finally, some examples of Dutch regulations in the context of the principle of transparent governmental information are provided. The transparency of governmental information has been developed in the Dutch Information Act. Since the Information Act contains obligations addressed to all the government institutions, including those operating on the regional and international level, it is interesting to mention the European side of the grounds for refusal of information. It is interesting to see that in EC Regulation 1049/2011, another system of grounds for refusal is used (eg article 4), which could lead to different outcomes. So, a European institution is involved in a (European) citizen’s case. Instead of a Dutch institution, legal consequences may differ.

In the context of an information act, it is important to ask: what rights do people have to get information from state authorities? In this context, it is relevant to have the right to access your own personal file, ‘which may be considered as an individual

14 Zigirinshuti 2013, 37.

manifestation of access to documents and is explicitly recognized in Article 41(2) of the Charter of Fundamental Rights as part of the right to good administration’.15 Is there any absolute obligation for government authorities to provide this information? The questions in relation to public information are: to whom, about what, which rights, and when?

We first illustrate the passive obligation to inform and then the active obligation of the administration. We read in section 3 of the Netherlands Information Act:

1. Anyone may apply to an administrative authority or to an agency, service or company carrying out work for which it is accountable to an administrative authority for information contained in documents concerning an administrative matter. 2. The applicant shall specify the administrative matter or the document relevant to it about which he wishes information. 3. An application for information shall be granted with due regard for the provisions of sections 10 and 11.

Thus, anyone can ask for information from an administrative authority and has to specify his request. This request should usually be granted, unless one of the provisions of sections 10 and 11 has to be followed. The active obligation or duty of the administration is formulated as follows:

Section 8 1. The administrative authority directly concerned shall provide, of its own accord, information on its policy and the preparation and implementation thereof, whenever the provision of such information is in the interests of effective, democratic governance. 2. The administrative authority shall ensure that the information is supplied in a comprehensible form and in such a way as to reach the interested party and as many interested members of the public as possible at a time which will allow them to make their views known to the administrative authority in good time.

Section 9 1. The administrative authority directly concerned shall ensure that the policy recommendations which the authority receives from independent advisory committees, together with the requests for advice and proposals made to the advisory committees by the authority shall be made public where necessary, possibly with explanatory notes. 2. The recommendations shall be made public no more than four weeks after they have been received by the administrative authority. Their publication shall be announced in the

Netherlands Government Gazette or in some other periodical made generally available by the government. Notification shall be made in a similar manner of non-publication, either total or partial.

This means that the administrative authority is obliged to provide information about its policy of its own record in an adequate way when the information comes from an advisory institution. In the following articles one may find examples of exceptions and restrictions:

Chapter V. Exceptions and restrictions Section 10 1. Disclosure of information pursuant to this Act shall not take place insofar as: a. this might endanger the unity of the Crown; b. this might damage the security of the State;

15 Prechal and De Leeuw 2007, 52.