Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The General Court of the European Court of Justice (ECJ) held that the Council of the European Union (Council) infringed Regulation No 1049/2001 by refusing to disclose information relating to the identity of Member State delegations making policy proposals. The Court reasoned that any exceptions to the public’s right of access to European Parliament, Council and Commission documents must be strictly applied because the public right of access to the documents of the institutions is an integral part the democratic nature of those institutions. It also ruled that the purpose of Regulation No 1049/2001 is to give the public the widest possible right of access. Accordingly, it found that the risk that delegations would refrain from submitting written proposals if their identity was disclosed did not sufficiently undermine the decision-making process so as to justify the refusal of access to the requested information.
This case analysis was contributed by Right2Info.org.
On December 3 2008, Access Info Europe applied to the Council under Regulation No 1049/2001 for access to a document concerning the proposal for a regulation of the European Parliament and of the Council regarding public access to documents. The Council granted access to the policy proposals in the document, but withheld the portions identifying which Member State had submitted each proposal.
The Council invoked the Article 4(3) exception to Regulation No 1049/2001, arguing that disclosure of Member State delegations would seriously undermine the decision-making process and that there was no overriding public interest in disclosure.
Further, the Council declared in a letter sent February 26 2009 by unregistered post that disclosure of the delegations’ identity would diminish the efficiency of the Council’s decision-making process by impairing the Council’s ability to compromise and by disincentivizing delegations from submitting written views. Access Info Europe said that it did not receive this letter until April 3, 2009, when it received an email version. Subsequently, Access Info applied to the ECJ on June 3, 2009, within the 2-month (plus 10 days for distance) time limit, as provided for under Article 230 EC and Article 102(2), of its email notification, but outside the limit based on the letter sent, but not received, in February.
Since the Council could not provide evidence that Access Info Europe had received notification of the decision before April 3 2009, the Court ruled that the time limit for bringing the appeal had not expired. The Court found that, although access to the requested document became available through other channels, Access Info still had an interest in its application to have the Council’s decision annulled because of the possibility of similar requests for access to the same type of document arising in the future.
The Court noted that all exceptions in Article 4 of Regulation No. 1049/2001 must be strictly applied because the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the the purpose of the Regulation is to give the public the widest possible right of access.
The Court then considered whether, for the reasons invoked by the Council, the disclosure of information relating to the identity of those who made proposals at a time when the Council had not yet taken a decision would seriously undermine the Council’s decision-making process. The Court found that the Council did not meet the required standard to come within the exception because any proposal for amendment of a draft regulation can be subjected to positive and negative comments by the public, and the risk that delegations would refrain from submitting written proposals if their identity was disclosed was not sufficient to establish that the decision-making process would be undermined.
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