Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Contracts Expression
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The European Court of Justice (ECJ) dismissed an appeal by Jose Maria Sison for the release of documents held by the Council of the European Union. Mr. Sison requested access to documents that had led the Council to include him in a list of persons whose funds and financial assets were to be frozen and which revealed the identity of the European Union (EU) Member States that had provided supporting documentation. The Court reasoned that the requested documents concerned persons or entities suspected of terrorism and fell within the category of sensitive documents which must not be disclosed to the public so as to protect the effectiveness of the operational fight against terrorism and public security. The Court said that the European Parliament, Council and Commission enjoy a wide discretion in respect of access to documents that fall within the category of sensitive documents and the Court’s review of the European institutions’ decisions refusing access to these types of documents is limited to verifying whether the procedural rules been complied with, the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers. In this case the Court found no reason to interfere with the European institutions’ decisions.
This analysis was contributed by Right2Info.org.
In 2002, the Council of the European Union (the Council) adopted Decision 2002/848/EC, which included the Applicant in the list of persons whose funds and financial assets were to be frozen pursuant to Regulation (EC) No 2580/2001 on Specific Restrictive Measures Directed Against Certain Persons and Entities with a View to Combating Terrorism. Later, the Council adopted Decision 2002/974/EC and Decision 2003/480/EC repealing the previous decision and establishing a new list. The Applicant’s name was retained on the new list.
The Applicant requested access to the documents which had led the Council to adopt all three decisions and information about the identity of the states that had provided certain documents in that connection. The Applicant also specifically requested access to the report of the proceedings of the Permanent Representatives Committee (COREPER) 11 311/03 EXT 1 CRS/CRP concerning the last decision. The Council refused to provide even partial access to the requested documents on the grounds that (i) information which had led to the adoption of the decisions was included in the summary reports of the COREPER proceedings which were classified as confidential (under Article 9(1) and (2) of Regulation No 1049/2001); (ii) disclosure of the COREPER reports would undermine the public interest as regards public security (first indent of Article 4(1) of Regulation No 1049/2001); (iii) disclosure of the COREPER reports would undermine the public interest as regards international relations (third indent of Article 4(1) of Regulation No 1049/2001). Disclosure of the identity of the states was refused on the ground that the originating authorities opposed the disclosure under Article 9(3) of Regulation No 1049/2001.
The Court of First Instance (CFI) [now the General Court] dismissed the Applicant’s appeal of the Council’s refusal to provide information. The Applicant turned to the ECJ.
The Court stipulated from the outset that the Council and other institutions enjoy wide discretion in determining whether the disclosure of documents relating to the fields covered by the exceptions set out in Article 4(1)(a) of Regulation No 1049/2001 may undermine public interest. EU courts’ review in such instances is limited to “verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers”. The Court emphasized that EU institutions have a margin of appreciation when making a “complex and delicate” decision regarding the protection of interests of “the particularly sensitive and essential nature”.
The Court dismissed the Applicant’s argument about “a right to be informed in detail of the nature and cause of the accusation made against him, which led to his inclusion on the list,” because the purpose of Regulation No 1049/2001 was to protect the public’s right to access documents, as opposed to the interest of a particular individual (paras. 43 and 48). It further held that, in any case, the exceptions under Article 4(1)(a) were mandatory in the sense that once they were invoked, there was no need “to balance the requirements connected to the protection of those interests against those which stem from other interests” (para. 46).
The ECJ sided with the CFI in finding that “documents held by the public authorities concerning persons or entities suspected of terrorism and coming within the category of sensitive documents as defined by Article 9 of Regulation No 1049/2001 must not be disclosed to the public in order not to prejudice the effectiveness of the operational fight against terrorism and thereby undermine the protection of public security”. It concluded that the Council “did not make a manifest error of assessment” in refusing access to the COREPER reports on the ground on protection of public security. However, it further held that the Council could not rely on the public interest exception as regards international relations because, contrary to the CFI’s finding, the documents emanated not from third countries but from Member States. The Court nevertheless concluded that the distortion of the facts could not lead to the annulment of the CFI’s judgment, since the documents were legitimately refused on the ground of protection of public security.
Regarding the disclosure of the states which sent the documents to the Council, the Court found that on the basis of Article 9 of Regulation No 1049/2001 “[the] originating authority is […] entitled to require secrecy as regards even the existence of a sensitive document and […] such authority also has the power to prevent disclosure of its own identity in the event that the existence of that document should become known”.
The ECJ dismissed the appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression by denying access to documents under a principle of the widest possible public access to documents. However many would accept the rationale behind the exception that was applied here, namely the protection of the public interest as regards public security specifically with regard to protecting the effectiveness of the fight against terrorism.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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