Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The European Court of Justice (ECJ) upheld the decision of the European Central Bank (ECB) not to release documents to a journalist and Bloomberg News concerning economic policy. Bloomberg News had applied to the ECB, for access to documents concerning the use of derivative transactions in financing deficits and managing government debt. The ECB refused on the basis of the protection of the public interest regarding the economic policy of the European Union (EU) and Greece. The Court pointed out that where disclosure of a document undermined the public interest, the ECB was obliged to refuse access. The Court observed that at the time when the refusal was adopted, the European financial markets were in a very vulnerable environment, and that the release of the documents could have potentially mislead the public as well as financial market participants, thus adversely impacting the effective conduct of the economic policy in [Greece] and the Union.
This case analysis was contributed by Right2Info.org.
A journalist working for Bloomberg Finance LP (Bloomberg News), applied to the European Central Bank (ECB) for access to two documents, entitled “The Impact on Government Deficit and Debt from Off-Market Swaps. The Greek Case” and “The Titlos Transaction and Possible Existence of Similar Transactions Impacting on the Euro Area Government Debt or Deficit Levels.” The documents concerned the use of derivative transactions in financing deficits and managing government debt.
The ECB refused access to the documents on two grounds: 1) public interest in non-disclosure, since disclosure would undermine the economic policy of the EU and Greece; and 2) the protection of the ECB’s internal deliberations. As regards the second document only, the refusal was also based on the protection of the commercial interests of a natural or legal person.
The Court said that public access to the ECB documents, regulated by Decision 2004/258 (Decision), is subject to certain limits based on reasons of public or private interest. The Court found that on the one hand, the ECB had to explain how disclosure “could specifically and effectively undermine the interest protected by the exception”, but on the other hand, it enjoyed a wide discretion when assessing the risk of disclosure to undermine a particular public interest.
Regarding the exceptions to public access provided for in Article 4(1) of the Decision – including protection of economic policy – the Court pointed out that where disclosure of a document undermined the public interest, the ECB was obliged to refuse access. EU law did not provide for the weighing of that public interest against an “overriding public interest [in disclosure]”.
The Court further addressed the Applicants’ argument that the disclosure of the documents would not undermine the economic policy of the Union and Greece. The Court observed that at the time when the refusal was adopted, the European financial markets were in a very vulnerable environment, particularly because of the economic and financial situation of Greece. Although the information contained in the first document was outdated, it could have misled the public and financial market participants. Such an error might have had negative consequences on access to the financial markets, particularly for Greece, “and might therefore have affected the effective conduct of economic policy in [Greece] and the Union”. Thus, the ECB’s assessment that disclosure of the first document would undermine the economic policy of the EU and Greece was correct.
The second document included the background to the ‘Titlos’ transaction as well as an analysis carried out by the ECB that concerned the manner in which Greece had used off-market swaps and the consequences of those swaps for existing risks. The Court found that since the content of that document was closely connected with that of the first document, the ECB’s assessment was valid for the same reasons.
The Court did not find it necessary to examine the second and third pleas concerning the exceptions to the right of access provided for in Article 4(2) (commercial interests), and in Article 4(3) (internal deliberations) of the Decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by limiting the transparency of the ECB specifically at a time, during a financial crisis, when there was a strong public interest in knowing what the European bankers knew and whether they acted swiftly enough in response to the situation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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