4. Institutions Involved

c. the data concerned relate to companies and manufacturing processes and were furnished to the government in confidence by natural or legal persons. 2. Nor shall disclosure of information take place insofar as its importance does not outweigh one of the following: a. relations between the Netherlands and other states or international organizations; b. the economic and financial interests of the State, other bodies constituted under public law or the administrative authorities referred to in section 1a, subsection 1 (c and d) and subsection 2; c. the investigation of criminal offences and the prosecution of offenders; d. inspection, control and oversight by administrative authorities; e. respect for personal privacy; f. the importance to the addressee of being the first to note the information; g. the prevention of disproportionate advantage or disadvantage to the natural or legal persons concerned or to third parties. 3. Subsection 2, chapeau and at b, shall apply to the disclosure of environmental information concerning confidential procedures. 4. Subsection 2, chapeau and at g, shall not apply to the disclosure of environmental information. It is possible to refrain from disclosing such information pursuant to this Act if its publication would make damage to the environment more likely.

Section 11

1. Where an application concerns information contained in documents drawn up for the purpose of internal consultation, no information shall be disclosed concerning personal opinions on policy contained therein. 2. Information on personal opinions on policy may be disclosed, in the interests of effective, democratic governance, in a form which cannot be traced back to any individual. If those who expressed the opinions in question or who supported them agree, information may be disclosed in a form which may be traced back to individuals. 3. Information concerning the personal opinions on policy contained in the recommendations of a civil service or mixed advisory committee may be disclosed if the administrative authority directly concerned informed the committee members of its intention to do so before they commenced their activities.

Articles 10 and 11 of the Act contain the grounds for refusal of information:

• Article 10 Subsection 1: absolute grounds of refusal of information; if this ground applies, information must remain secret; • Article 10 Subsection 2: relative grounds of refusal of information = whether or not the information needs to be given, depends on a balancing of interests between the interests of making the information public (the interest of the person who requests the information) and those of keeping the information secret (the general interest of society and/or the interest of the person about whom the information is requested); • Article 11: keeping secret information on internal debates; this is to protect personal opinions of civil servants, because they need to express their opinions freely without these being made public (it is essential in a parliamentary democracy). If the information requested is refused, a person can go to an administrative court to challenge the decision.

4. Institutions Involved

All the government institutions on the national level, in the broader sense, have regulations regarding the transparency aspects of their behaviour. This means that not

only the three traditional powers have to deal with it, but also the fourth power institutions. The relevance of this principle is multilevel. Transparency has been developed in different countries through civilians rebelling against official secrecy by utilizing the access to information laws with a ‘right to information approach’.

The first steps to transparency in relation to access to information in the EU faltered and were attacked for failing to appreciate the fundamental nature of the right in question.16 For example, many criticized the Council of Ministers because it merely adjusted its internal rules of procedure to allow public access to documents. In Netherlands v Council of the European Union, the Advocate General noted in his opinion for the ECJ that:

The basis for such a right should be sought in the democratic principle, which constitutes one of the cornerstones of the Community edifice ... in the Preamble to the Maastricht Treaty and Article F of the Common Provisions of the Treaty ... The right of access to official documents is now ... part of that democratic principle.

Thus, the Advocate General referred more broadly to a right of access to documents as a constitutional or legislative principle enshrined in the legislation of most Member States. The European Parliament, in its intervention before the ECJ, ‘rightly stress[ed]’ the democratic nature of the Community legal order. ‘[O]penness is a fundamental characteristic of a democratic system’, the European Parliament claimed. The Dutch government argued that the categorization of access as an internal bureaucratic matter—that is, a ‘right’ governed by internal rules of procedure—by the Council was misconceived. The reason was that procedure was a ‘fundamental right’, especially the public’s right of access to information, the rules governing which must be accompanied by the necessary safeguards. The right was an ‘innate feature’ of any democratic system. The ECJ declined to accept that it was such a fundamental right, although it acknowledged that the right of access has been reaffirmed by the Community ‘on various occasions’. To amend the rules governing its internal administration, which were based on confidentiality in order to allow access by the public to its documents, the Council confirmed this trend of openness that ‘discloses a progressive affirmation of individuals’ right of access to documents held by public authorities’.

The ECJ held that the Council was empowered to amend its internal organization in this manner, by an administrative code which is backed up by formal legal decisions. The ECJ and Court of First Instance (CFI)—the latter deals with most of the cases on access to information at first instance and from which there is an appeal to the ECJ— have subsequently avoided any ruling on the general principles of openness and access, finding technical or reviewable faults when the Council and Commission have denied access under the 1993 code and decisions. In Hautala v Council, both the CFI and the ECJ on appeal found for Ms Hautala, a Member of the European Parliament, in her claim for access to documents relating to Title V information, the common foreign and security policy, which the Council had wrongly refused to disclose in redacted form. In other words, the Council refused to fillet out information that was not covered by an exemption and claimed that the exemption covered every item of information in the documents. A failure to consider redaction rendered the decision null. Both courts found it unnecessary to rule on Hautala’s third claim that denial constituted a ‘breach of the fundamental principle’ of Community law that citizens of the EU must be given the widest and fullest possible access to documents of the Community institutions. That refusal amounted to a denial of Ms Hautala’s legitimate expectations. The ECJ did

16 Birkinshaw 2006.

not find it necessary to rule on the Council’s ground of appeal that the CFI wrongly based its decision on a ‘right to information’, finding that the refusal to consider disclosing redacted documents was illegal and disproportionate. General principles of law, such as proportionality, help to interpret the right to access, but according to the ECJ, access is not yet a general principle itself. It should be emphasized that the general principles of law include fundamental rights taken from national constitutional systems, international treaties, and legal traditions, as well as principles of judicial review within the member states.

A lot has happened since Hautala v Council. In 2001, the ECJ had not yet found the right of access to information a ‘principle’, but in the case Sison v Council, the ECJ did precisely that in paragraph 63.

As they [exceptions as found in Article 4 of Regulation 1049/2011] derogate from the principle of the widest possible public access to documents, such exceptions must, as the appellant has correctly observed, be interpreted and applied strictly.

Other cases related to the development of the right of access to information are Kuijer v Council17 and Turco v Sweden. 18

The Amsterdam Treaty on the European Union declares in article 1(2) that the EU should operate as ‘openly and as closely as possible to its citizens’. Specifically, article 255(1) provides for a right of access to documents of the European Parliament, Council, and Commission. The general principles and their limits are set out in Regulation 1049/2001. Recital 2 of Regulation 1049 notes that openness contributes toward strengthening democracy and the protection of human rights within article 6 EU and the Charter of Fundamental Rights. The purpose of Regulation 1049 is, among other things, ‘to give the fullest possible effect to the right of public access to [EU] documents’ that establish general principles and limitations (Recital 4). Subsequently, a Directive of the European Parliament and Council of Ministers has set out provisions that seek to facilitate the reuse of public sector information by private sector bodies.

The draft EU-Constitution (EUC) extended the right of access to cover all institutions, bodies, offices, and agencies of the EU, including the European Council, which has to conduct its work ‘as openly as possible’ in accordance with the draft-EUC article 1-50.19 The European Council of the EU is a meeting of the heads of state or government. It has no formal legal status within the EU Treaty, remarkably similar to the UK Cabinet within the British legal system. The European Council is the body that sets out the most important agendas for future development of the EU. The draft-EUC gave legal status to this body for the first time in article 1-19(1). No working group in the Convention on the Constitution, which drafted the Constitution, dealt with access

17 ECJ 7 February 2002, T-211/00, Aldo Kuijer v Council of the European Union, ECR II-488. 18 ECJ 1 July 2008, Joined cases C-39/05 P and C-52/05 P, Sweden and Turco v Council, ECR, 2008 I-04723. 19 The draft-EUC does this in a number of ways, which include simplifying the EU Annex. For 2004, see COM (2005) 348 final and Annex; for the general report on implementation of Regulation 1049/2001, see COM (2004) 45 final. See, eg, ECJ 17 September 2003, T-76/02, Messina v Commission, ECR II-03203 (finding the documents to be an exception to disclosure under art 4(5) of Regulation 1049); ECJ 23 November 2004, T-84/03, Turco v Council, ECR II-04061 (dismissing the request for access to documents under the art 4 exception); ECJ 30 November 2004, T-168/02, Internationaler Tiershutz-Fonds (IFAW) GmbH v Commission, ECR II-04135 (dismissing the request for access to documents under art 4(5)); ECJ 13 April 2005, T-2/03, Verein für Konsumenteninformation v Commission, ECR II-01121 (annulling the Commission’s decision to withhold access for lack of concrete examination, and setting a demanding test for examination of large files of documents by the Commission); ECJ 26 April 2005, Joined cases T-110/03, T-150/03,