Brussels keeps information under its hat. Proposed rules on opennes are too lax
October 28, 2008 20:09 | by Kartika Liotard
Brussels concerns itself with every aspect of our lives, but gives little away when it comes to information. This creates distrust. Even the European Ombudsman is now complaining that the hands of the openneness clock are being turned back. It takes a lot of clicks on the mouse to find out that a new European Regulation on openness in administration is on the way. The European Commission sees the Regulation as a way to bring Europe closer to the citizen. Why don't they turn this around and make rules which would help us get closer to Europe?
The EU continues to give the impression that it is frightened of the public. In 2001, with the introduction of the openness regulation now in operation, the fear was expressed that openness would 'paralyse' the policy-making process. The opposite is of course true: openness could strengthen confidence in Europe. The broad public is scarcely aided by the current rules. For the most part it has been professionals - people such as lawyers, researchers and lobbyists - who have been able to profit from them.
Now a new proposed regulation is before us. Preaching transparency and public participation, this proposal must itself surely live up to these criteria. Unfortunately, the silence surrounding the proposal from the European Commission says everything. The problem begins with the vague terms which occupy a central place in its text. The words 'openness' and 'transparency' demonstrate an administrative mentality, and are simply not achievable through judicial means. Openness of information, on the other hand, is: these words establish a legal situation, a set of rights and duties. The word 'access', used in the Amsterdam Treaty, is more 'citizen-friendly' and telling, but the Commission's proposal has little to say about this. The emphasis should be less on Europe's duty to provide information, and more on the public's right to have access to it. Only when the Commission's concomitant duty to provide becomes self-evident can confidence in 'Brussels' grow.
What could be improved? The European Commission sticks closely to the American or Swedish document system. This requires that you must first know in which document the information you are seeking lies, and gives you a right only to access to what you ask for. Brussels will be left to determine for itself what it hands over. Unrecognised or unregistered documents are simply not documents at all. The reasoning goes like this: it must have been sent, registered or received, or it didn't exist. This way of thinking recalls Bill Clinton's definition of sex: nothing was transferred, so nothing happened.
The existing Dutch law on administrative openness is better. It is based not on a documentation system, but on a true information system. This means that members of the public or journalists need only name the administrative subject for the authorities to have a duty to respond by providing relevant information.
As well as changing the proposal to reflect such concerns, other amendments must be made. The European Ombudsman must be given more space to assess the performance of the EU institutions, if necessary unannounced and uninvited. It would have a hugely preventative effect, if bureaucrats were obliged continually to run the risk of being caught failing to apply the rules on openness, or applying them inadequately. Keeping anything secret must become a genuine exception. Keeping whole categories of documents under your hat, as the Commission is now proposing, does not sit comfortably with the openness preached. The status 'secret' must derive from the content and should not be left vulnerable to the self-interest of the official so classifying it.
That documents relating to matters which are sub judice should generally be kept secret is understandable, but this should not be by definition the case, and certainly not if they are subject to what the Commission calls 'quasi-judicial' procedures. I hope that the European Commissioner responsible, Margot Wallström understands that this would create enormous problems..
Before proceeding further, however, the Communication should organise a broad debate around the way in which the proposed syetem of openness is expected to function and how the proposal might be improved. Policy-making should not be done from ivory towers, certainly not when the regulation involved advocates participation and transparency. Brussels should listen more, answer questions more readily, and preach less. .
The Dutch government, and any others which operate a genuine system of openness, must do all in their power to persuade those member states which have little tradition of openness that there is only one way to to exercise power democratically, and that is to monitor those who exercise it. If Europe wants to win public confidence, then it must become receptive to questions posed by ordinary citizens, and not meerly experts. Dutch regulations on openness are not perfect, but they are certainly rules from which Europe could learn.
Kartika Liotard is a Member of the European Parliament for the Socialist Party of the Netherlands.