It’s been a long time I’ve been waiting for a decision by the EU Commission on my requests for access to EU documents – but today I finally received a letter signed by the Secretary General of the European Commission, Catherine Day (photo).
This request concerned a set of five documents I need for my research, the first one requested on 5 July 2011 and the rest in mid-September.
Two of the documents are draft versions (for EU geeks: pre- and post-interservice consultation) of a regulation proposal published this year but with ongoing co-decision between Parliament and Council. The other three concern the comments of three Directorates General (during interservice consultation).
My initial request for these documents was completely refused by the EU Commission in mid-October. The reasoning given was:
“I wish to inform you that the requested documents come under the system of exceptions provided for in the document access policy, and that we cannot therefore provide them for you. […]
Disclosure of these documents would seriously undermine the Commission’s decision- making process and its right for enjoying a free ‘space-to-think’ area. Disclosure of the Commission’s internal opinions and views in preparation of its proposals can also seriously undermine its position and role in the context of the inter-institutional legislative procedure […]
In your request, you do not present any elements demonstrating the existence of an overriding public interest that would justify the disclosure of the requested documents.”
I thus started an appeal procedure (‘confirmatory application’) explaining why I was convinced these documents should still be disclosed. This appeal however took so long – exceeding the legal limits – that I started a complaint procedure with the EU Ombudsman (blog posts here, here, here).
Finally, today I got a decision to provide me with partial access to the documents requested. Partial access means that all documents have been redacted. A good number of paragraphs have been deleted with the following reasoning:
“[…] The undisclosed parts of documents (1) and (4) contain wording and positions that the Commission has not maintained in the final version of the proposal. However, as it was previously explained, during the course of the inter-institutional negotiations the Commission can amend its proposal and, at this stage, it can not be excluded that it will revert to these positions.
Public release of the undisclosed parts of documents (1) and (4) would, in the present circumstances, seriously undermine the Commission’s decision-making process with regard to the positions it may adopt in the course of the inter-institutional negotiations on this matter. Indeed, putting in the public domain the possible options the Commission may consider in the discussions with the Parliament and the Council would prejudice the Commission’s margin of manoeuvre and severely reduce its capacity to contribute to reaching compromises, thus seriously affecting its decision-making process.
In this situation, disclosure of the undisclosed parts of the two preliminary versions would hamper the Commission’s ability to take decisions in the inter-institutional debate. It would reveal to the public and to its negotiating partners possible changes to the proposal that may become relevant in the course of the legislative process and which are based on policy options that were considered in the internal deliberations but were not retained in the proposal submitted to Parliament and Council. This would be highlydetrimental to the decision-making of the Commission. […]“
I didn’t have an in-depth look into the documents so far, but from a quick look it is clear that compared to getting nothing I received quite some text. However, a quick view also shows that a good number of paragraphs in all documents have been deleted. [Following sentence added at 17:00] A second quick look made clear that in the earlier draft proposal quite a lot of paragraphs have been erased, meaning that an important part of the first draft did not make it through the interservice consultation.
What this proves is that the initial complete refusal to grant access to any part of these documents was wrong. It also shows that it is worth doing a confirmatory application when an initial request for documents receives a negative reply.
When you look at the statistics for the last three years (p. 10), your chances are higher than 50% to get more access after the appeal than you initially got. This shows that the Transparency Unit of the European Commission which is dealing with these appeals is doing a pretty good job.
Yet, the fact that I can get so much more after a confirmatory application casts doubts on whether my initial request (before I had to go into confirmatory application) had actually been properly checked to see whether these documents contained parts that I could get access to.
I have these doubts in particular because one of the five documents requested is not existent according to the latest reply I received. If my initial request had been properly checked, they should have realised earlier that one of the five documents did not exist and should have told me.
Furthermore, I don’t agree with all the reasoning to defend the deletion of those parts of the documents that according to the Commission could seriously undermine its decision-making. However, at least I’ve got some things to work with for my research. And let’s see what the complaint to the Ombudsman will do – I can still go to Court afterwards… (although any Court decision would be too late for my current research).
For now, I can start working with the partially published documents received, so there’s a guarantee the post-Christmas time will not get boring and that my research can continue…