Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The European Court of Justice held that the European Parliament must disclose audit reports unless it explicitly determines that (i) disclosure of a requested document would specifically and actually undermine a protected interest, and there is no overriding public interest justifying disclosure, and (ii) the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical. Irish lawyer Ciarán Toland, asked the Court to annul the decision of the European Parliament denying him access to an internal audit report concerning the assistance allowance given to Members of the European Parliament (MEPs) each year, including information regarding the operation of the allowance system and its abuses by its MEPs. Since the Parliament’s decision could not prove that disclosure would undermine any ongoing decision-making process, or identify any overriding public interest to justify non-disclosure, the Court found that the European Parliament had improperly withheld access to the impugned report, annulled its decision and awarded costs to Toland.
This case analysis was contributed by Right2Info.org.
In June 2008, Ciarán Toland, an Irish lawyer, applied to the European Parliament for access to the 2006 Annual Report of its Internal Audit Service (Report No 07/01), including the 16 audit reports referred to in paragraph 24 of the European Parliament Resolution of 22 April 2008 (para. 3).
The Secretary-General of Parliament granted Toland partial access to Report No. 07/01, redacting one paragraph dealing with an audit still pending (para. 4). The reply did not mention the other 16 requested reports (para. 4). Toland submitted a second request for those reports, including the redacted paragraph of Report No. 07/01 (para. 5).
By letter dated August 11 2008 (the “Contested Decision”), the Parliament denied access to the redacted paragraph, granted full access to 13 of the 16 internal audit reports, partial access to two further internal audit reports, and denied access to the fourteenth of those reports, namely Internal Audit Report No. 06/02 of January 9 2008 entitled “Audit of the Parliamentary Assistance Allowance” (Report No. 06/02) (para 6) and including information regarding the Parliamentary Assistance Allowance given to Members of the European Parliament (MEPs) each year, the operation of the Allowance system and its abuses by MEPs. In March 2008, the Bureau of the European Parliament had carried out a series of reforms to implement recommendations contained in the Report, but the European Parliament voted to keep the report confidential. Parliament viewed the Allowance as a “sensitive matter” and argued that disclosure of Report No 06/02 was not required because disclosure might compromise the report’s effective use and purpose (under Article 4(2) of Regulation 1049/2001) and that disclosure would be detrimental to Parliament’s decision-making process under Article 4(3) of Regulation 1049/2001 and compromise reform (para. 9-12).
The Applicant initiated proceedings against the Parliament in the General Court of the European Union and the Governments of Sweden, Finland and Denmark intervened in his favor.
The Court noted that, for purposes of the Article 4(2) and Article 4(3) exceptions to disclosure, Parliament would have had to determine that (i) access to a requested document would specifically and actually undermine the protected interest and that there was no overriding public interest justifying disclosure of the document concerned, and (ii) the risk of the protected interest being undermined was reasonably foreseeable and not purely hypothetical (para. 29).
Article 4(2) provides that institutions shall refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits unless there is an overriding public interest in disclosure (para. 42). The Court ruled that it would have been appropriate to ascertain whether, at the time of the adoption of the Contested Decision, inspections and investigations were still in progress which could have been jeopardized by the disclosure of the requested documents, and whether those activities were carried out within a reasonable period. Instead, the Parliament’s decision would have withheld documents until the “follow-up action to be taken has been decided,” which would make access to documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of various authorities (para. 45). Since the Contested Decision made no mention of any specific inspection or investigation or of any other administrative checks ongoing at the time of the decision that might have jeopardized implementation of the actions recommended in Report No 06/02, the Court said that the Article 4(2) exception could not apply. (para. 58). The Court found no need to examine the “overriding public interest” prong of Article 4(2) (para. 58).
Article 4(3) provides that access to a document drawn up by an institution for internal use or received by an institution relating to a matter concerning which a decision has not yet been made shall be refused if disclosure would seriously undermine the decision-making process, unless there is an overriding public interest in disclosure (para. 69). This exception requires it to be established that access to the document in question drawn up by the institution for its internal use in question was likely, specifically and actually to undermine the interest protected by the exception, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical (para. 70). In addition, disclosure must risk seriously undermining the decision-making process (para. 72). Though the audit report was drawn up by Parliament for internal use and related to an issue on which the institution had not yet taken any decision, the Court determined that disclosure of Report No. 06/02 would not seriously undermine its decision-making process (paras. 72-78). The Contested Decision made no mention of the existence, on the date on which it was adopted, of any acts undermining, or attempting to undermine, the ongoing decision-making process, or of objective reasons on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if Report No. 06/02 were disclosed (para. 79). Further, the Contested Decision failed to contain any reasoning regarding whether an overriding public interest did not, despite everything, call for disclosure of that report (para. 83).
Accordingly, the Court found that the European Parliament had improperly withheld access to Report No. 06/02, annulled its decision in this regard and awarded costs to Toland.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Let us know if you notice errors or if the case analysis needs revision.