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ACCESS

TO

EUROPEAN

PUBLIC SECTOR INFORMATION

RECONCILING

The Access Needsof

ADMINISTRATIVE TRANSPARENCY

and

THE INFORMATION MARKET .

Christopher G. Quinton [LLB]

LLM Student

The Queens’ University of Belfast

January 1997

1ACCESS TO EUROPEAN PUBLIC SECTOR INFORMATION: Reconciling the Access Needs of Administrative Transparency and The Information Market. Christopher G. Quinton LLM StudentThe Queens’ University of Belfast : January 1997

ABSTRACT:

Over the past 30 years or more, innovations in the field of information storage,

processing and distribution have heralded what has often been referred to as the ‘information

revolution.’ The public sector, being by far the largest collectors, processors and consumers

of information, has now found itself in the possession of vast and growing quantities of an

increasingly valuable commodity.

The past three decades has also witnessed a noticeable change in the attitude of many

of the worlds governments towards the degree of administrative secrecy that is practised

within their ‘corridors of power.’ The presumption of secrecy that has for centuries been the

hallmark of government institutions and departments now appears to have given way to

policies which tend to place on such institutions and departments, a moral obligation to

provide members of the public with information which will enhance their awareness of the

decision-making processes which effect their everyday life.

It has been an often stated proposition of the European Commission and Council that

access to public sector information is necessary element in the EU’s aspirations to satisfy

both the democratic imperative of informing the public, and the economic imperative of

developing the information market. The problem however, is that the implementing of

policies which promote one of these imperatives, will have a tendency to be detrimental to

the promotion of the other. This is not to say that both aims are mutually exclusive. A

policy heavily favouring the promotion of one imperative will have an incidental, and

positive, effect on the other.

It is therefore of paramount importance that the dissemination of public authority

information should regulated in such a way as to maximise both of these objectives.

AIMS OF THIS RESEARCH PAPER:

1. To outline the evolution and nature of the policies and regulations governing access to

public authority information, that have been implemented by the European Union

institutions, the European Union member states and the United States of America.

2. To examine the degree to which the implementing of access policies and regulations has

maximised the promotion of the European Commission and Council’s objectives of (a)

increasing administrative transparency, and (b) developing the European information

market.

3. To identify problematic issues that arise, and attempt to address them effectively.

TABLE OF CONTENTS2

ACCESS TO EUROPEAN PUBLIC SECTOR INFORMATION: Reconciling the Access Needs of Administrative Transparency and The Information Market. Christopher G. Quinton LLM StudentThe Queens’ University of Belfast : January 1997

CHAPTER [1]:- This Chapter will contain an examination of the main arguments generally offered in support of the proposition that liberal access to public authority information is vital for the promotion of administrative transparency and for the development of the European information market.

CHAPTER [2]:- This chapter will contain an examination of the evolution and nature of access policies applicable to: (i) The European Commission and Council. (ii) Sweden. (iii) The United Kingdom.

CHAPTER [3[:-This chapter will contain an outline of the important aspects of the access policies implemented in other European Union member states

CHAPTER [4[:-This chapter will contain an examination of the evolution and nature of access policies applicable to The United States of America.

CHAPTER [5]:- This chapter will contain a summary of conclusions on Chapters 2 to 4

CHAPTER [6]:- In this chapter I will list a number of proposals which I believe may help to ensure that the European Unions aforementioned twin objectives will be maximised.


METHODOLOGY

CHAPTER 1:- The examination provides the philosophical background which is, I

believe, necessary for a better understanding of the issues involved.

CHAPTER 2:- The institutions of the European Union are examined as per aims (1)

and (2) of the paper;

Sweden is examined for the purpose of comparison, as Sweden has perhaps had the

longest history of the most open access policies:

The United Kingdom is examined for the purpose of comparison, as the UK has

perhaps had the longest history of closed access policies:

CHAPTER 3:- The other European Union member states are examined as per aims

(1) and (2) of the paper.

CHAPTER 4:- The United States of America is examined for the purpose of

comparison, as the USA claims to promote the same twin aims as the EU

Commission and Council, and has displayed a relatively high degree of success

realising both aims.

RESEARCH MATERIALS

Aside from the materials mentioned in the Bibliography, research for this paper has made full use of the Internet. In this respect, I accumulated over 1,500 ‘documents,’ amounting to over 50 Mbytes of information. In addition to this, I acquired much information by placing myself on a number of e-mail ‘mailing lists.’

ACKNOWLEGEMENTS

Research for this paper was greatly assisted by:· Ms Johanna Ohlsen:- [Translation of Swedish articles]· Mrs Jolanda Hanna:- [Translation of Dutch articles]· Mr Thomas Crane:- [Translation of French articles]


CHAPTER [1]:

An E xamination of the Arguments S upporting Liberal A ccess to Public

Authority I nformation.

Assess to public authority information is supported by arguments which

generally support two different imperatives, which may be termed:- The ‘Democratic

Imperative’ and the ‘Market Imperative’.

The ‘Democratic Imperative’ emphasises the importance of implementing

policies aimed at promoting administrative transparency and encouraging the active

participation of EU citizens in the democratic processes.

The ‘Market Imperative’ emphasises the need for implementing legislation to

fully exploit the economic value of the massive amount of data accumulated by the

public sector in the everyday running of its affairs.

THE DEMOCRATIC IMPERATIVE:

From the democratic perspective, it is argued that citizens’ access to

government information [termed ‘the currency of democracy’ by Thomas Jefferson],

when effectively exercised, can help ensure the legitimacy of the democratic process.

Political scientist Shalini Venturelli, has referred to open access policies as:-

“Mechanisms for fulfilling democracy's constitutive commitment to citizens' participatory rights ...1”

The European Council’s support of such policies has been made clear numerous

times. Referring to openness, in its Birmingham Declaration (1992), the Council

stated:-

“As a community of democracies we can only move forward with the support of our citizens. We are determined to respond to the concerns raised in the recent public debate.”2

1 Shalini Venturelli: (1996), “The Political-Competitive Order of Information Liberalization in the European Union”: Paper presented at the National and International Initiatives for Information Infrastructure Symposium January 25-27, 1996 John F. Kennedy School of Government, Harvard University.2 European Council, (1992) A Community Closer to its Citizens, adopted at its meeting in Birmingham, 16 October 1992.


Openness therefore, helps to ensure that the citizen, who, being made aware of

both the internal functioning of the government, and of the information on which

decisions are based, is therefore suitably equipped to actively participate in the

decision making process. Openness therefore helps guarantee that the respective

decisions gain a greater degree of democratic legitimacy. This, it is argued, will lead

to what political scientist Robert Dahl has called “the advanced democratic country.”3

The governments and institutions become more accountable and transparent. As

MEP John Tomlinson has emphasised:-

“... it is the right of every citizen to know exactly what their elected representative is doing on their behalf, and to have access to information about the process through which decisions are taken, as well as the decisions themselves. This is important not just in ensuring that our citizens are informed about the society in which they live, but it also gives them the opportunity to partake in the process through lobbying of their elected representatives, and ultimately through casting an informed vote at election time. Such participation is an essential pillar of democracy, as is the accountability that it helps to progress.”4

In a similar vein, Swedish Minister of Justice, Laila Freivalds, claims that:-

“ ... free access to official documents promotes the democratic process, the rule of law and the effectiveness of public administration ... transparency contributes to the efficiency of both administration and democracy...”5

Furthermore, Adam Smith, in emphasising the value of information in a democracy,

has commented that an informed public are:-

“... more disposed to examine, and more capable of seeing through, the interested complaints of faction and sedition, and they are upon that account less apt to be misled into any wanton or unnecessary opposition to the measures of government. In free countries, where the safety of governments depends very much upon the favourable judgement which the people may form of its conduct, it must surely be of the highest importance that they should not be disposed to judge rashly or capriciously concerning it.” 6

While Adam Smiths’ statement was first made over two centuries ago, its

application to present day politics is beyond argument. Indeed with the recent

advances in computer and communications technology, this statement even more

pertinent. 3 Robert Dahl, (1989) Democracy and its Critics: Yale University. New Haven P. 3394 ULR:- http://www.poptel.org.uk/john.tomlinson/5 Extract from a speech given by Swedish Minister of Justice Laila Freivalds at the conference "An Enlarged European Union: The Role and contribution of the New Member States” in Athens, 6-7 April, 19956Adam Smith [R.Campbell and A. Skinner {eds.)]: Reprint 1979, An Inquiry into the Nature and Causes of the Wealth of Nations :, 788. [First published 1776]


As Anderson et al have pointed out, current technology has:

“ ... democratised knowledge ... [and] ... increased participation in discussion, decision-making, and task processes by those who typically are politically or economically disadvantaged.7"

From the democratic perspective therefore, the main arguments in favour of

liberal access to government information appear to emphasis that the higher the

degree of citizens’ access then the greater is their capacity to directly influence

policy-makers. This it is argued will ensure that decision makers act in conjunction

with the public and in the public-eye, and bring an end to “insider politics” where

voter participation in the policy making process, is extremely limited..

THE MARKET IMPERATIVE:

The Market Imperative dictates that, as the increasing amounts of information

gathered by government departments and EU institutions is a vast source8 of

economic wealth, then access to this information is of paramount importance for the

development of a European information market which can compete with the

information markets of the USA and Asia. It is also argued that, thanks to ongoing

technical innovations in the field of data storage, manipulation and networking,

public sector information will be the driving force behind not only the European

information market, but the European market itself. As the European Commission

stated in 1993:-

“The move towards an information society is irreversible, and affects all aspects of society and interrelations between economic partners. Creation of a common information area within the Community will enable the Community fully to seize their opportunities9"

Over the past decade the European Union has placed increasing emphasis on

the development of this information market and has emphasised in numerous

7 Anderson, Robert, Bikson, Law, and Mitchell, (1995) Universal Access to E-Mail: Feasibility and Societal Implications: Santa Monica, (MR-650-MF), Calif: RAND 19958 The European public sector now produces over twice the volume of information related materials than its counterparts in the USA9 Delors, Jacques, (1993) White Book on Growth, Competitiveness and Employment,: Published Dec., 1993


publications that liberal access to public sector information is a vital element in this

goal.10

Furthermore, that urgent steps need to be taken to ensure the EU’s effective

exploitation of this new market, can be gleaned from a recent report to the European

Commission, published by the Information Society. The Report warns that:-

“The costs to Europe of failing to adapt swiftly and efficiently will be very high. We shall not only see a growing competitive weakness in relation to the US and the leading Asian economies but also the threat of widespread social alienation.11”

SUMMARY

As can be seen from the above outline, access to public authority information

is supported by strong arguments supporting both the democratic imperative and the

market imperative. As mentioned in the introduction the implementing of policies

which promote one of these imperatives will have a tendency to be detrimental to the

promotion of the other. It follows therefore that where both these imperatives are to

be given maximum support, then a careful balance must be sought.

With this in mind, I will next examine [in Chapter 2(i)] the evolution and

nature of access policies both implemented and aspired to, by the institutions of the

European Union.

10 For example:- Europe and the Global Information Society (Bangemann Report) (26/5/94); Europe's Way to the Information Society: An Action Plan, Europe's Way to the Information Society: An Action Plan, COM(94)347 final, Brussels,(19/7/94); PUBLAW 1 Studies, subject report, January 1991, p. 23; INFO2000, May 1995, p. 14.11 Networks for People and their Communities: Making the Most of the Information Society in the European Union: First Annual Report to the European Commission from the Information Society Forum : June 1996 Final rev: 5/7/96


CHAPTER [2] ( i ) :

An examination of the evolution and nature of access policies applicable

to the Institutions of the European Union

Debate within the European Union on access to government information

began many years before the possibilities of an information market could seriously be

considered. Arguments in favour of liberal access policies therefore, supported of

the democratic imperative.

For example, it was argued that liberal access policies would be

consistent with and supported by the Convention for the Protection of Human Rights

and Fundamental Freedoms (ECHR),12 to which all member states were and are

signatories. Article 3 [Protocol 1] obliges signatories to organise elections under

conditions:-

“... which will ensure the free expression of the opinion of the people in the choice of the legislature”.13

It was argued here that the above obligation can only be effectively fulfilled by

making all relevant government material available to the public. ECHR Art. 10 has

also been used in support of open access policies. Art (10)[1] provides that everyone

has the right to freedom of expression which includes the freedom to:-

“... receive and impart information and ideas without interference from public authorities and regardless of frontiers...”

This freedom is qualified in (10)[2], by making it subject to legal restrictions etc.,

which are:-

“... necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime...”

The term ‘necessary, (Par. 2), has consistently been interpreted by the European

Court as requiring ‘a pressing social need,’14 and it is for the European Court do

decide whether or not any loss of freedom in question proportionally addresses this

‘pressing social need.’ ECHR Art 10 does not however, imply a general right of 12 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 Nov., 1950 13 ECHR, Article 3, First Protocol.14 See for example:- Handyside 7/12/76 , Series A No. 24, NJ 1978, 236; Sunday Times (26/4/79 , Series A No. 30, NJ 1980/146


access. In Leander v. Sweden, (1987) 15, the court declared that the right to receive

information did not place an obligation on governments to provide information. The

provision was added so as to prohibit governments from:-

“ ... restricting a person from receiving information that others wish or may be willing to impart to him.”16

In Sunday Times v. United Kingdom (1991)17 however, the court ruled that Art 10

provided the press with the right to inform and provided the public with the right to be

informed.

Furthermore, it is argued that the freedom of expression outlined in the

Council of Europe's Convention for the Protection of Human Rights and Fundamental

Freedoms, is closely related to the concept of freedom of information.

A ctions taken by the EU institutions

By the mid-1970s, arguments in favour of an open access policy began

to influence the Council of Europe, and in 1977 the Committee of Ministers adopted a

Resolution on the protection of the individual in relation to the acts of administrative

authorities18. The Resolution recommended that access should be granted to

documents relating to administrative acts which effected the individual in question.

This was followed in 1979, with the Council of Europe Parliamentary Assembly

Recommendation on public access to government records and freedom of

information.19

This Recommendation suggested that a general right of access to public sector

information should not be based on an specific interest, legal or otherwise.

Exemptions to such a right should only be based on some overriding public or private

interest which should be narrowly defined. Response time and cost should be

regulated, and a refusal to access should be challengable in court. This was followed

15 Leander v. Sweden, ECHR, 26 March 1987, Series A, No. 116;16 Op Cite.15.17 Sunday Times v. United Kingdom, ECHR, 26 November 1991, Series A No. 216 en 217, Paragraphs 65-67.18 Resolution (77) 31. (1977)19 Council of Europe. Parliamentary Assembly. Recommendation on access by the public to government records and freedom of information. 854 (1979)


soon after by a Council of Europe Recommendation20 on public access which stated

that:-

“... everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities”.

A similar Recommendation was published in 1980 which advocated access to

information relating decisions involving the exercising of discretional powers.21

In April 1982, the principle of open access was further encouraged by the

adoption of the Council of Europe’s ‘Declaration on the Freedom of Expression and

Information’. This Declaration stated that one of the aims of the EU was:-

“The pursuit of an open information policy in the public sector, including access to information in order to enhance the individual's understanding of, and his ability to discuss freely political, social, economic and cultural matters'.22”

The Information Market

By the 1980s advancements in information technology were beginning to

highlight the commercial possibilities made possible by the electronic storage and

manipulation of the vast and expanding resources of public sector information.

The idea of open access to public authority information took on a new

urgency therefore, when plans for a European information services market were

unveiled in 1988.23 To this end, DGX111E24 set in place the Information Market

Policy Action Programme (IMPACT) which formulated a number of

recommendations to develop the European information market. These

recommendations formed the basis of the 1989 Guidelines for improving the synergy

between the public and private sectors in the information market25. The ‘Guidelines,’

20 Recommendation R(81)19 on the Access to Information held by the Public Authorities.21 Recommendation R(80)2.22 ‘Declaration on the Freedom of Expression and Information’ Art. 8(II)(c) Council of Europe, committee of Ministers, 70th Session ; adopted 29 April 1982.23 Council Decision concerning the establishment of a plan of action for setting up an information services market, DOC 88/524/CEC, OJ No. L 288, p. 39, 26 July 1988.24 Directorate-General for Telecommunications Information Industries and Innovation. Currently working towards the development of a single European information market25 Commission of the European Communities (DG XIII), Guidelines for Improving the Synergy between the Public and Private Sectors in the Information Market, Luxembourg, 1989.


recognised the importance of a partnership between public and private sectors in the

building of a strong information services market.

A year later, came the 1990 Directive on the freedom of access to, and

dissemination of, information on the environment. It is worth noting here, that where

access in granted under this Directive, it is granted any information written, visual,

aural or in database form26.

In 1993, the effect of these Synergy Guidelines was evaluated in a

Commission report, PUBLAW 2,27 which further emphasised the importance [from a

commercial rather than human rights perspective] of access to and the value of public

authority information.

Public access to public authority was given yet a further boost with the signing

to the Treaty on European Union (Maastricht) in February 199228. Article A of the

Treaty emphasised the need to make decisions, “... as closely as possible to the

citizen.” Declaration 17 of the Final Act of the Conference stated that:-

“... transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration.”

In addition to this, a declaration on the right to access is annexed to the

Maastricht Treaty.29

Later that same year, 1992, in the Birmingham Declaration, the European

Council stated:-

“... we can only move forward with the support of our citizens. We are determined to respond to the concerns raised in the recent public debate... [and] ... make the Community more open, to ensure a better informed public debate on its activities.”30

26 Council Directive on the freedom of access to information on the environment, 90/313/EEC, OJ. No. L-158, 23.6.90.27 PUBLAW.2 : Final Report Europe. A Report to The Commission of the European Communities on an Evaluation of the Implementation of the Commission's Guidelines for Improving the Synergy between the Public and Private Sectors in the Information Market'. 4 March 1993.28 Adopted at the Maastricht Council meeting on 9 and 10 December 1991. Signed by the Member States on 7 February 1992.29 Final Act, Declarations: No. 17, Declaration on the right of access to information, Maastricht, 7 February 1992, OJ, C 191, 29 July 1992.30 European Council, A Community Closer to its Citizens, adopted at its meeting in Birmingham, 16 October 1992.


In line with this policy, the Conference recommended that no later than 1993,

the Commission come up with a report underlining proposals which would increase

public access to EU institutions information. Consequently, two reports, ‘Public

access to the institution's documents 31 ’ , and ‘Openness in the Community 32 ’ , were

published in June 1993, emphasised the importance of balancing public and private

interests, and prompted the formulation of a set of guidelines designed to regulate

access to commission and Commission documents.

Code of C onduct on P ublic A ccess to Commission and Council D ocuments .

The guidelines took the form of a Code of Conduct, which was implemented

as Council and Commission Decisions with a view to providing the public with:-

“... the widest possible access to documents held by the Commission and the Council.”

This was to be achieved by permitting access to documents in the original

form, or by providing the requester with a copy 33. The term document however,

refers to any written text, whatever its medium, containing existing data.34 There

were however, certain restrictions applied where access was for commercial purposes.

These provisions were further outlined in a similar Commission decision in February

1994.35

The code of conduct of course stipulates circumstances under which

information will not be released. Under Article 4(l) of the decision, access to a

Council document will not be granted where disclosure could undermine certain

interests. Furthermore, Under Article 4(2), access to a Council document may be

refused in order to protect the confidentiality of the Council's proceedings. In

addition to this, under its Rules of Procedure, the Council has a margin of discretion

which it should use to give effect to its decision under Article 4(2). The council

31 OJ C-156, 8.6.9332 OJ No. C-166, 17.6.9333 ‘Council Code of Conduct concerning public access to Council and Commission Documents,’ (93/730/EC) and ‘Council Decision of 20 December 1993 on public access to Council documents,’ (93/731/EC) OJ No. L-340 31.12.93.34Council Decision of 20 December 1993 on public access to Council documents, OJ, No. L 340, 31/12/93, p. 43. 35 ‘Commission Decision of 8 February 1994 on public access to Commission documents' [94/90/ECSC, EC, Euratom] OJ No. L-46 18.2.94.


cannot however, refuse access under Article 4(2), simply by refusing to exercise its

discretion under Article 5(l) of its Rules of Procedure.

In the Carvel case36, the court ruled that by virtue of the aims of Decision

93/731 and the provisions of Art 4(2), the court, in exercising its discretion to release

information, must weigh up the access interests against the interests of maintaining

confidentially of Council Proceedings.

Decisions relating to requests for documents must be made by the institution

in question within one month of receiving the request. The person concerned must

then be notified immediately of the decision, the grounds for making it and the

available appeals procedures which may involve judicial proceedings or an appeal to

the ombudsman, both provisions being set out in Article 138c and Article 173 of the

EC Treaty respectively.

As was the case in the 1980s, the technological advances of the early 1990s

[this time in the field of communications] convinced the EU that, yet again, urgent

action was needed if the Union was to effectively exploit the information services

market. In the 1993 White Paper on Growth, Competitiveness and Employment37, the

EU recommended investment in the development of a European information based

society. A year later, the Bangemann Report38 was published, outlining measures

deemed necessary for the construction of a framework to regulate a European

information infrastructure.

Following the publishing of the Bangemann Report and its consideration by

the European Council at the EU Summit in Corfu in June 1993, the Commission

outlined details of an ‘Action Plan’ to address technological issues, such as the

liberalising of communications networks, and social issues such as citizens’

participation39.

36 Case. T-194/94 - 19.10.1995:37 Growth, Competitiveness, Employment: The challenges and ways forward to the 21st Century', COM(93) 700 final : 5 Dec., 199338 The High-Level Group on the information society, Europe and the Global Information Society: Recommendations to the European Council, (Bangemann Report), 26 May 1994.39 ‘Europe's Way to the Information Society: An Action Plan’, COM (94) 347 final.


The Global Information Market

The Uruguay round of GATT40 emphasised the global nature of

commerce and the need for freedom of trade. And at the G7 Conference in Brussels in

February 199541, which included EU representation, it was recommended that, in

relation to a global information society, private investment, open access and diversity

of content should be promoted. One result of the G7 Conference was the setting up of

the ‘Government On-Line’42 project with the aim of developing the use of

government information services which closely involved Citizens’ participation.

From a global information market perspective, the EU has much work to do to

effectively compete with USA information services. It is alarming to note that

despite the fact that the combined EU population exceeds that of the USA by over

100 million and its public sector produces over twice the volume of information

related materials than its counterparts in the USA , the USA’s information services

industry increased its turnover from 5 to 9.6 Million ECU in during the period 1988

to 1992, whereas the EU turnover only increased from 2.5 to 3.6 Million ECU during

the same period.43

In yet another attempt to redress this imbalance, the European Commission

launched the INFO2000 programme in 1995. This initiative is aimed at stimulating

the development of a European multimedia industry,44and will involve developing EU

policies to regulate exploitation of and access to public sector information, which,

according to the programmes objectives, will also increase efficiency, openness and

transparency within the Union45. The INFO2000 programme is therefore seen by the

European Union, as being a vital element in the promotion of democracy and the

40The Final Act and Agreement Establishing the World Trade Organisation, General Agreement on Tariffs and Trade, Uruguay Round (including GATT 1994), Marrakesh, 15 April 1994.41 G7 Ministerial Conference on the Global Information Society - Ministerial Conference Summary, Brussels 25-26 February 1995., (Office for Official Publications of the European Communities, Luxembourg, 1995).42 URL http:// ispo...html.43 Source: European Commission, Information Market Observatory, (IMO).44 ‘Communication from the Commission to the European Parliament and the Council concerning a multi-annual Community programme to stimulate the development of a European multimedia content industry and to encourage the use of multimedia content in the emerging information society’ (INFO2000), COM(95) 149 final. 18 May 1995.45 (INFO2000), DOC. IMPACT 68/95, 18 May 1995, Annex 1, (Action Line 2.12).


information market. Indeed Mr. R de Bruïne of DG X111 views the INFO2000

programme as:-

“... an absolutely necessary step both from the point of view of transparency and democracy, informing the citizens and industry of what is happening at the level of European institutions and national governments, and from the point of view of the information market which is a crucial element in Europe's competitiveness, growth and employment situation.” 46

Access Via The Internet

The rise to prominence of the World Wide Web (WWW) has vastly increased

the potentials for information dissemination and it appears that the European Union

has taken some important steps in this direction. The EUROPA server opened in

February 1995 for example, is accessed an average of 60,000 times per day. This

server includes a database containing up to date information relating to inter-

Governmental Conferences which is itself accessed over 25,000 times each month.

The effectiveness of an EU presence on the internet is highlighted by

comparing the EUROPA access figures with the following figures relating to more

traditional methods. Between 1993 and 1995, 142 requests were made to the

European Council resulting in the release of approximately 260 documents. During

the same period, 490 requests were made to the European Commission resulting in

the release of approximately 450 documents47. There are I believe important lessons

here to be learnt with respect to keeping the citizens informed.

Conclusions:

As can be seen, the European Union Commission and Council, in

implementing a rather progressive self regulatory framework on access to its

information, has set a standard which the member states are recommended to emulate.

From the democratic perspective, the EU institutions have set forth guidelines

aimed at ensuring that citizens’ access can only be prohibited under strictly defined

46 Mr R de Bruïne : Directorate General XIII European Commission : Workshop on commercial and citizens’ access to government information. Luxembourg 26/6/95.47 'Citizen-oriented measures' Unit Secretariat General European Commission. It is worth noting here that 40% and 18% of the requests to the Council and Commission respectively were refused.


circumstances, and that where such disclosure is prohibited, the citizen can avail of an

effective appellate procedure. The Commission and Council has also formulated

guidelines aimed at ensuring that requests are answered within a reasonable time, and

that such requests are not frustrated by the failure of regulations to take into account

technological innovations. Furthermore, in adopting the ‘internet’ as a means of

information dissemination, the Commission and Council have encouraged the

development of an active right to inform.

In terms of the information market, here too the Commission and Council has

taken some important initiatives. In this respects a number of programmes have been

set in place to reflect the opinion that the information market can only be effectively

developed were there is an alliance between public and private sectors, and where

there is open and uniform access to public authority information.

With this in mind, in Chapter 2(ii), (iii) and Chapter 3, I will investigate the

degree to which the European Commission and Council’s aspirations have been

reflected in the access policies of Sweden, the United Kingdom and the other member

states.


CHAPTER [2] (ii)

An examination of the Evolution and current nature of access policy in

Sweden

Of all the EU member states, Sweden has arguably had the longest history of a

liberal approach to the subject of access to government in formation.

The emphasis on open access which prevails in Sweden today, can be traced

back to 1776. On 2 December of that year, the increasing criticism of prevailing

government secrecy48 under the ‘Hattarna’ administration finally led to the adoption

of the Freedom of the Press Act. The act, inter alia, permitted the printing of certain

documents emanating from e.g., Parliament and Civilförvaltningen [Civil Service].

More importantly perhaps, the act permitted anyone to personally copy such

documents or have a copy made available to them. Unlawful refusal to release a

requested document, meant that the official concerned would be dismissed from his

post.

Although the act was the first of its kind, many of its provisions survived the

temporary demise of parliamentary authority in 177249, and later formed the basis of

the Freedom of the Press Acts of 1810 and 1812, and influenced the Instrument of

Government of 1809. The current Freedom of the Press Act was passed in 1949 and

is reflected in the Swedish Constitution. Its central tenet, is that:-

“To further free interchange of opinions and enlightenment of the public, every Swedish national shall have free access to official documents.” 50

The right of access to government information and the associated right to

disseminate information, have since become ingrained in Swedish society51. The

existence in Sweden of a general access right per se, can be construed from the

legislation, regulations and case law relating to: the creation and use of public

information resources; the regulation of access to public information; the regulation

48 E.g.:- The printing of Royal ordinances and state documents was banned [they were deemed to be Crown property]. Furthermore under the 1720 instrument of government, Parliamentary protocols were explicitly decreed to be kept secret.49 Heralded by the coup d'etat of King Gustavus III in 1772.50 Svensk förffattningssamling; Tryckfrihet Lagen : Freedom of the Press Act (1949)51A declaration on ‘open government,’ has been annexed by Sweden to the EU Accession [OJ, 1994, C 241]


of rights in and use of information, and the regulation of public and private sector

information activities.

As is the case with states that promote such open access policies, the scope of

such policies in Sweden, is defined in terms of areas of exemption from access,

rather than areas where access is permitted. The exemptions under the Swedish

Freedom of the Press Act52, cover areas broadly similar to those relating to data

protection legislation, viz:- State security, relations with foreign powers, public

authority activities, crime prevention and prosecution, and the protection of personal

and economic information on individuals.

These exemption areas are not however to be construed broadly. The

circumstances under which access to government document is denied under these

exemption areas, are clearly defined by the Secrecy Act 1980, and a decision to refuse

access can therefore only be justified with reference to this Act.

The Secrecy Act itself is a complex piece of legislation, comprising 16

chapters. Amongst its main provisions is the requirement that the possibility of

damage to the interests of the relevant party must be shown. The act also stipulates

the maximum duration of any refusal of access. For example, information likely to

damage the interests of national security or foreign relations may be withheld for up

to a maximum of 40 years and information likely to damage the interests of

individuals may be withheld for 50 -70 years.

However, whereas public bodies have no discretion in relation to these

restrictions, there are exceptions which may, for example, permit an individual to

access sensitive information relating solely to themselves. In such circumstances,

access may be permitted subject to it being restricted to the individual concerned, i.e.,

the individual may not communicate the information to another party.

Purpose of the Request

52 Svensk förffattningssamling Chapter(2) Sec[2]19


Generally, a government department or institution cannot require the

information seeker in question to explain his/her reasons53 for requiring the

information and the information seeker can in fact remain anonymous. Furthermore,

access rights are granted to non-Swedish nationals54.

Legal C hallenges to the D enial of A ccess

Where a public body refuses access to official documents, an appeal can be

made first to the ‘Courts of the Chamber’55 and where applicable, to the ‘Supreme

Administrative Court.’ Locus Standi for such an appeal is granted only to the person

seeking the information.56 As a final mechanism, the Parliamentary Ombudsman can

intervene and, where he deems public authorities have acted illegally, can prosecute

the individual[s] concerned. 57

Unfortunately however, despite the prevailing rules, it appears that in practice,

while some government departments and institutions appear quite willing to provide

the information required, others can often obstruct information seekers.

C ommercial Exploitation of Government Information

While the various access laws in Sweden clearly place obligations on

government departments and institutions to provide information to the public, many

of these bodies have attempted to use the Freedom of the Press Act, in particular, to

justify quasi-commercial practices. However, the Swedish Parliamentary Committee

on Constitutional Law has stated consistently that Swedish FPA can not be employed

to justify the commercial ventures of either Government bodies, or those seeking

information from such bodies.

It is often difficult however, in respect of government departments, to separate

the free giving of information, from the more commercial aspects of making such

information available. Indeed, the levying of charges for certain government

53 However, enquiries of this nature may occur when necessitated by specific secrecy requirements.54 This is also the case in Denmark, Finland, France and the Netherlands. [CMLR, 1995 (32), pp.390-442.]55 The administrative courts of second instance.56 Appeals by public authorities seeking to prevent disclosures and by third parties to whom the document[s] in question concern, are not permitted.57 The Ombudsman can often make statements concerning access to public authority documents. These statements, while not actually constituting case law, are nevertheless extremely influential.


information is in some instances, specifically provided for by statute. For example,

Swedish law 825 [1993] provides that a charge be made for access to personal files

held in Rixlex, the Swedish Parliament’s information system. Furthermore, data held

on Rixlex can be provided to commercial enterprises. However, with the rise of the

internet and the continued emphasis on freedom of access, the Swedish Government

has recently proposed that most of the Rixlex information should be freely available

on the internet. It should be noted, that under Swedish access laws, there is no

distinction between private citizens and commercial enterprises, i.e., documents that

are available free of charge to the citizen are available likewise to the commercial

sector.

Extent of the Right of Access

A major issue in respect of the right of access to government information in

Sweden, relates to extent of such a right. The main issue relating to whether access

should be restricted solely to information generated and held by government bodies in

the course of their normal day to day activities, or whether here such a right of access

obliges government bodies to process information in ways other that those employed

in their day to day operations. Current law suggests that where the information

seeker requires a government body to process its information in form other that that

which it normally employs, then such a request falls outside the provisions of the

Freedom of the Press Act, and the government body in question has a certain

discretion as to the extent to which they may comply with such a request and to the

charges they may levy.

Influence of Technology on the Existing Law

Prior to the enactment of recent data and computer related legislation, many

states believed that existing law was sufficient to deal any problem that computer

technology could generate. Sweden however, did not take this view. For example,

the first national data protection legislation was passed by the Swedish Parliament as

early as 1973.58 However, the passing of this act, did attract criticism. The main

argument being that too if great an emphasis was placed on data protection this would

58 The Swedish Data Act.[1973].21


have a detrimental effect on access to information, inasmuch as digitised data would

be afforded great protected from disclosure.

In answer to this criticism however, the Swedish Supreme Administrative

Court, in declaring that the term ‘document’ as referred to in the FPA, should be

construed so as to include magnetic tapes and other machine-readable media,

underpinned the policy that the implementation of technological innovations should

not have an adverse effect on Swedish rights of access. The arguments nevertheless

continue over exactly where the line should be drawn between the protection of data

and access to it, and this is despite the fact that this issue has been debated in Sweden

for over 30 years.59 The problem of course being that the acceleration in

technological innovation60 has made it extremely difficult for legislators to construct a

precise regulatory framework which can deal effectively with future innovations. It

should be noted however, that Swedish law obliges public authorities to implement

computer systems in such a way as to facilitate ease of access by information seekers.

As can be seen, Swedish access laws have been piecemeal in nature and where

the law has not quite kept pace with the technology, certain problems have arisen. In

this respect, innovations in the area of information retrieval have not yet been

adequately catered for. For example, despite the increasing ease of use that computer

technology brings to information retrieval, and despite the fact that public bodies are

obliged to publicise the existence of information that they hold, there is as yet in

Sweden, no recognised right to search for information. Under current Swedish law,

the information seeker must clearly describe the document[s] required. It would

appear that were a right to search to be recognised then this would at least greatly

relieve the pressure on public employees engaged in client searches.

The legal status of electronic data is yet an other problematic issue which the

recent advances in computer networking technology have created. Under current

Swedish law, access is permitted, subject the usual exclusions, only to documents

kept by public bodies. Such documents must either be generated by public bodies or 59 The first legislative committee to debate such issues, ‘The Committee on Openness’, was set up in the mid 1960’s.60 A survey conducted in 1993 by the World Economic Forum concluded that Sweden exploited the use of Information technology to a greater degree than any other country.


made available to them. The problem here is that under Swedish law, the definition of

term ‘kept’ includes ‘having access to,’ therefore, taking a broad construction of the

law, access could be granted to any document that any public body may have the

possibility of accessing. The Swedish courts have yet to adequately address this

issue.

Conclusion

It can be seen therefore, from the above, that, at least in terms of promoting

openness and transparency, Sweden has generally exceeded the express and implied

standards of access set and required by the European Commission and Council.

During the past two hundred years and more Swedish access law has evolved to

produce a right of access which now provides nationals, and to a lesser degree non-

nationals, with a scope of access limited only by clearly defined and narrowly

interpreted exemption grounds. Where access is denied, appellate procedure can

ultimately involve the ombudsman,61 who has power to prosecute where necessary.

Sweden’s access policy has also attempted to keep pace with technological

innovations by formulating effective definitions and obligating the use of IT.

In terms of promoting the information market, here Sweden appears to have a

rather neutral policy. Where there is a conflict of interest between the information

market and citizens’ access, the existing body of law ensures that the latter will

prevail. It is however, only to this extent that the Swedish information market does

not receive active support. Where information is available to citizens and no conflict

exists, then such information is also available to the private sector.

In general, the scope access to public authority information in Sweden is

defined in terms the circumstances under which access is prohibited. Such a policy

has created a relatively high degree of confidence amongst Swedish citizens towards

their Government and has placed these citizens in a better position in relation to

negotiating their way around administrative bureaucracy.

61 The word ‘ombudsman’ is derived from the Swedish for representative!23


Unfortunately, as will now be made clear in Chapter [2](iii), the same can not

be said of the access polices implemented by the United Kingdom.


CHAPTER [2](iii)


The United Kingdom

Whereas Sweden has consistently adopted a liberal approach to the

dissemination of public authority information, the United Kingdom government has

consistently adopted the opposite approach. Where access regulations in the UK exist

with any potency, they are largely defined in terms of areas where access is permitted

and not, as in Sweden, to areas of exemption.

The main result of this, in terms of citizens’ participation in democratic

decision making, is that the average UK citizen’s involvement is usually restricted to

the exercising his or her franchise every 4 years. The influencing of UK Government

policy is therefore restricted to the efforts of lobby groups whose composition is far

from representative of the average UK citizen.

Crown Copyright

One of the traditional legal obstacles to the accessing of government

information in the UK has been the existence and enforcement of Crown and

Parliamentary Copyright. Under the provisions of the Copyright, Designs and Patents

Act 1988, copyright protection is afforded to any work made by a servant or officer of

the Crown in the course of his or her duties62. The administration of Crown Copyright

and Parliamentary Copyright, is the responsibility of the Controller of HMSO. Until

quite recently, these provisions were strictly enforced.

The current position, which is under review, is that the conditions under which

Crown material may be reproduced without either permission or charge, have now

been extended. In terms of materials subject to Crown Copyright protection,

reproduction [for non-commercial purposes] is generally permitted free of charge and

without need for permission, provided that: value has been added to the material; it is

reproduced accurately and it is acknowledged as being subject to Crown copyright.

62 Copyright Designs and Patents Act 1988 (c.48) ss.163-16725


Similar provisions regulate the reproduction of Material subject to Parliamentary

Copyright. [Hansard, Bills of Parliament, House Journals etc.]

However, despite the relaxing of Government attitudes towards such

enforcement, the very existence of such provisions does little to promote the ideals of

open access.

Such ideals however, would have been greatly assisted in the UK with the

enactment of legislation similar to the Freedom of Information Act passed in the USA

in 1966 [See chapter 4] . Unfortunately, attempts at passing such an act have been

continuously thwarted by successive conservative administrations.

Ministerial Accountability

The last attempt at tabling a Freedom of Information Bill was pre-empted by

William Waldegrave in April 1994 when he introduced the rather paternalistic ‘Code

of Practice on Open Government.’63[see below] A decade earlier, the then Prime

Minister, Margaret Thatcher, vehemently opposed a Freedom of Information Act,

claiming that it would reduce Ministers’ accountability and diminish Parliament.

‘Ministerial Accountability,’ has often been argued as being an effective legal

mechanism for the protection of democracy in that it permits ministers to be questioned

in Parliament about the reasons for their decisions.

Unfortunately however, the effectiveness of this provision is contingent upon:

(a) the ministers providing full and honest answers, and (b) the MPs who question them

having sufficient knowledge of the issue to ask pertinent questions. Ministerial

Accountability therefore does little to engender trust and confidence in the political

process when one realises that the honesty of certain ministers is not beyond reproach.

Furthermore, the provisions of the Public Records Act do little to ensure that MPs ask

meaningful questions in the House64. This act stipulates that certain government papers

can be withheld from the public for a period of at least 30 years from the time of their

63 HMSO (1994b) Open government. Code of practice on access to government information. London:

Cabinet Office/HMSO. See also: White Paper on Open Government, HMSO Cm 2290 (1994).64 NB. The Code of Practice on Open Government {op. Cit. 15} will not override the provisions of the Public Records Act. HMSO (1994b) sect 9.


creation. There are in fact 40 categories of documents, comprising 5% of all official

documents, which can be withheld for periods of up to 100 years65.

The result of withholding such materials has been to ensure that MPs have not

been sufficiently ‘armed’ with suitable questions, and that Ministers and Civil Servants

have been free to provide answers that can only be adequately scrutinised, several

decades later.

Commercial Exploitation & Executive-Agencies

During the 1980s the UK government policy was largely preoccupied with the

idea of privatising. Privatising, it was alleged, would increase administrative

efficiency and of course ease pressure on the public purse. In line with this drive, the

government began setting up self-funding governmental E xecutive A gencies, under

the “Next Steps” programme.66 HMSO is such an agency, and as such, has began to

charge for its publications and has entered into licensing agreements with the private

sector in order to recoup operating revenue.

While executive-agencies operate under guidelines which are supposed to

ensure that they are non-profit making67, the subsidising of unpopular services can

mean that dissemination prices exceed the costs actual incurred. Similarly, the Royal

Ordnance Survey, set up in 1791 to create maps for the armed forces, became an

Executive Agency in 1990 and is obliged to maximise revenue from the sale of its

data. From 1990 to 1994, the OS increased the percentage cost recovery from 64% to

71.8%,68 and aims at 100% cost recovery by 199769.

While the effectiveness of cost recouping has often been called into question, a

number of joint ventures have been set in place and appear to be producing the

desired results. In 1994, the Central Statistics Office appointed a Head of Marketing

and Sales and entered into a partnership with Taylor Nelson with a view to marketing

business data with an estimated annual profit of £1.3m. Similarly, the Ordnance

65 Such categories comprise documents generated between 1910 and 1930 relating to the treatment of prisoners and mentally handicapped persons; industrial strikes and the prosecution for sedition.66 `Improving Management in Government: the Next Steps', by the Efficiency Unit, HMSO 1988.67 Provided the agency in question has not become a Trading Fund under the Trading Funds Act [1973]. NB:- HMSO has Trading Fund status.68 Annual report and accounts (1993/94). Ordnance Survey : Southampton.69 Ordnance Survey's Corporate Plan (1993-1997) Ordnance Survey : Southampton.


Survey is currently involved in a number of joint enterprises which have broadened

its services and made it more responsive to market needs.

While such practices however, may well result in the release of hitherto

unpublished information, the argument, from the democratic perspective, is that such

ventures have only been set in place to create extra government revenue and have

little to do with democratic accountability. The other main criticisms being (a) that

such dissemination is inequitable as it favours only those who can afford to pay the

required fees, and (b) that as tax payers, the nation has in fact already paid for the

information70.

The Government’s overall policy towards the utilisation of its information was

outlined in a series of guidelines published in 1986.71 These guidelines suggested that

government data could have its commercial value increased by: (a) making it more

quickly and easily accessed; (b) placing within easy access to other government

information; (c) producing software capable of complex data manipulation; (d)

making the data available to facilitate a decision-making or a trading activity; and (e)

using data for purposes other than the purpose for which it was originally required.

As far as disseminating government information was concerned, the policy

statement issued guidelines aimed at ensuring that Government departments and

agencies, in either charging or providing information without charge, did not

competed with existing or potential private sector services72.

The government’s attitude towards the private sector stems from the widely

held belief that the private sector is better placed in terms of both technical and

commercial expertise to be the dominant partner in a public/private sector partnership

intent on capitalising on the ‘information revolution’.

The problem however, as far as formulating a policy that could actually

promote a viable information market, has been that the UK Government’s

70 That the taxpayers have already paid for government information, appears to be the view of the US Federal Government 71 "Government Held Tradable Information: Guidelines for Government Departments in Dealing with the Private Sector". (1986) Revised 198872 ibid. Guideline 11 (a) (b) (c)


information policy has in fact been, at best, a ‘sit-on-the-fence,’ policy, which is in

effect, not policy at all. This has resulted in a lack of government intervention to curb

the effects of the twin evils of, (a) a technologically archaic governmental working

environment and (b) the enforcement of Crown Copyright. Both these factors have

combined to ensure that the government’s vast information resources have never been

effectively exploited by the private sector.

As far promoting transparency and keeping the public informed was concerned,

the only way citizens could access government information was either to contract

directly with the government or claim access rights under some legal provision such as

judicial review73 or the provisions of the LGATIA, Local Government Access to

Information Act 1985.74 This act, as the name suggests, does not cover Central

Government information, it only permits access to local government documents and

meetings. Other possible access claims exist of course under the data Protection Act

(1984), and the Consumer Credit Act. Rights of access are also available, under

certain conditions, to medical and educational records.

EU Influences

While the UK Government has consistently appeared to be unwilling to adopt

open access policies of its own volition, it, like the other member states, is constantly

under pressure from the European Commission and Council to do so. This pressure

eventually paid off, when in 1992, the EU Directive on ‘Freedom of Access to, and

Dissemination of, Information on the Environment75,’was implemented in the UK in

the form of the Environmental Information Regulations. 76 These Regulations operate

under the principle that all environmental information should be released unless there

are compelling reasons to withhold it.

Unfortunately however while the endorsement of such a principle was, at the

time, seen as an important step towards a more open and accountable government, 73 Judicial Review places a duty on public authorities to disclose information by way of reasons and explanations for decisions or actions where, in the circumstances, such an explanation is demanded in the interest of fairness.74 Local Government Access to Information Act 198575 90/313/EEC. O.J. No. L-158, 23.6.90.76 ‘Environmental Information Regulations’, S.I. 1992 No. 3240 (31 December 1992.)


ingrained attitudes, practices and policies have ensured that while much hitherto

undisclosed information has undoubtedly been released, exemption provisions have

been interpreted in a manner which ensues that the amount released is kept to an

absolute minimum.

For example, in relation to the commercial confidentiality exemption, in cases

where industry supplies information to the government, the government bodies in

question generally operate on the assumption that all such information is confidential

and therefore exempt from disclosure. Furthermore, the provision exempting

unfinished documents has provided government bodies with endless possible reasons

for withholding important information.

Even when consent is given for the release of documents, the fees charged can

often be prohibitive. For example, whereas the regulations stipulate that charges

should be ‘reasonably attributable,’ to the supply of the information, the National

Rivers Authority regularly charges £50 per page for its information. Similarly, when

Hazard, the safety monitoring organisation, requested information on Health & Safety

Executive improvement and prohibition notices to factories, the ‘reasonable charge’

the Executive quoted them was £226, 399.41p77. Furthermore, the fact that

information relating to ongoing legal cases can in certain circumstances be kept

secret, can be, and allegedly has been, used by public authorities to withhold

information relating to cases they claim they are intending to prosecute.

The Code of Practice on Open Government

As mentioned [above], William Waldegrave introduced the Code of Practice

on Open Government, in April 1994, as part of the Citizen’s Charter78 [introduced in

1991]. The Code of Practice obliges those government departments and public bodies

coming under the jurisdiction of the Parliamentary Commissioner for Administration

[the Ombudsman]79, to release information used in policy making80.

77 Peter Victor (1995) From the article ‘Freedom of Information,’in the Independent on Sunday 18 June 199578 The citizen's charter. HMSO (199la) : HMSO; London.79 In Northern Ireland, the Parliamentary Commissioner for Administration and the Commissioner for Complaints.80 In June 1995, a similar Code of Practice relating to the NHS came into effect.


Where information may be released, the categories include, facts and analysis

underlying Government policies; guidelines on dealing with the public; details

concerning the provisions of public services and other information which falls within

the particular department’s or agency’s area of responsibility.

The code does not however provide unlimited access to all government

information or require government departments to acquire information or to provide

information free or charge where such a charge previously existed. There are of

course areas of exemption, which include: confidential personal or commercial

information; information relating to law enforcement, state security and international

relations. 81

Appeals

If a particular government agency refuses a request for information, then it

must state its reason[s] for doing so. If the respondent is not satisfied, then he/she can

demand a review of the decision by the agency in question and can ultimately have

their MP refer the case to the Parliamentary Ombudsman82 who can obtain access to

the documents relating to the request and can then judge whether or not the refusal

was justified83.

Charges

Generally, no charged will be levied in relation to information which explains:

benefits, entitlements and grants; the nature of government services and

performances; business related regulations and decisions and appeals procedures

relating to a request for information.

81 For information regarding the operation of the Code of Conduct or for the release of information under the Code, contact:- The Open Government Enquiry Point (tel. 0171-215 6668, fax 0171-215 0105). Or The Open Government Enquiry Point, Department of Trade and Industry, Room LG.E.36, 1 Victoria Street, London SW1H 0ET.82 Contactable at:- The Office of the Parliamentary Commissioner for Administration, Church House Great Smith Street, London, SW1P 3BW Tel 0171-276 2130 : The Northern Ireland Ombudsman: 33 Wellington Place, Belfast BT1 6HN Tel 01232 233821 83 The appeals procedure, which is free of charge, may also be used to query the unreasonable response times [in access of 20 working days] or the fees charged for providing information.


The Code of Practice on Open Government therefore appears to represent a

major step towards realising the ideals of open access. The problem however is that

being a ‘code of practice,’ it lacks the potency of legislation and, to the delight of

obstructive bureaucrats, it is riven with exemption clauses84, the interpretations of

which, are generally at the discretion of the agencies in question. There is in fact an

exemption on 'vexatious’ or ‘unreasonable’ requests, such as would require ‘the retrieval

of information from files not in current use’. 85

Influence of The Internet

The rise to prominence of the ‘internet,’ over the last number of years has

encouraged many countries to attach open access provisions to their Information

Infrastructure programmes and to provide access to much public authority material.

The UK Government however, has been slow in following this example, as its

information policy consistently favours the commercial exploitation such information.

Furthermore, the UK administration argues that the internet is available only to a

minority of the population and is therefore not an equitable means of information

dissemination. Indeed the government body responsible for the development of UK

internet policy, the Government Centre of Information Systems (CCTA), in its 1995

Report, advised government departments and agencies that any revenue they lose by

placing information on the internet, may not be reimbursed86.

The same report however, outlined the fact that network users consistently

expressed a desire to access full text government reports and not just abstracts and

price lists.87

In an attempt to debate issues surrounding the use of the internet for the

dissemination of Government material, a Paperwork Reduction Bill88 was introduced

to the House of Commons under the ‘10-minute rule.’ While the attempt was 84 In the documents explaining the operation of the Code, one page is devoted to the releasing of information, while 4½ pages are devoted to exemptions. HMSO (1994b)85 HMSO 1994b, 886 `Making the Best Use of The Internet', CCTA (April 1995) p.8. 87 ibid P.988 ‘Government Paperwork Reduction and Electronic Information Bill’- introduced by David Shaw MP (1/3/95)


unsuccessful, it did at least raise awareness of some of the issues involved, and over

the past year the UK government appears to have relaxed its attitude to the provision

of government information on the internet. For example, the Houses of Parliament

Public WWW Service,89 has been set up to provide information about the business of

both Houses. Indeed, the House of Lords has decided to make its information

available under the principle that the information should be freely available in

electronic form on the ‘internet,’ to individuals and to commercial enterprises who

may further process or add value to it90.

Such HOL information includes Hansard, and will include the publication of

Committee Reports and Bills before the house. Furthermore, HMSO,91 in addition to

publishing details of its publications, has begun publishing the summaries of over 200

UK Acts of Parliament and will publish full text copies of all new Acts.

Conclusions:

As this examination shows, aside from recent moves towards internet

dissemination and relaxing crown and parliamentary copyright control, the United

Kingdom access policies fall far short of standards exhibited in Sweden and expected

from the European Commission and Council.

In terms of openness and transparency, the best that he UK government can

come up with is the Code of Practice on Open Government, which, while

representing a long awaited step in the right direction, nevertheless appears easily

circumvented and lacks effective enforcement procedures. The dictates of the

Executive Agencies and the existence of crown and parliamentary copyright control,

have greatly decreased the possibilities of the equitable dissemination of public

authority information in the United Kingdom. However, a number of recent joint

enterprises between the public and private sectors, show some promise. Nevertheless

the lack of a coherent UK information policy. Such policies are also ensuring

that the potentials of the information market far from being realised.

89 Available at http://www.parliament.uk/90 House of Lords Debates, 2 April 1996, col. 142.91 Her Majesty's Stationery Office. Available at:- http://www.open.gov.uk


As far as balancing the needs of openness and information market, current

policy and practice suggests that the UK government is quite happy to prioritise (a)

the market needs over those of the citizen, and (b) public sector enterprise over that of

the private sector. Such an attitude, has so far ensured that the European Unions

aspirations relating to transparency and to the information market, have had little

assistance from the United Kingdom.


CHAPTER [3](iii)

An outline of the important aspects of the Access Policies implemented in

other European Union Member States

In the previous chapter, tracing the evolution and nature of access policies in

Sweden and the United Kingdom, I have highlighted both, the extreme positions

taken on the issues in question, and the huge distances between them. In this chapter

I will outline some of the main aspects relating to positions adopted in the other

European Union member states.

The most striking aspect of the access policies implemented by the other EU

nations, is that there is so far little consistency of approach, both amongst, and indeed,

within, these nations.

Turning first to Denmark, here the democratic needs of the citizens appear to

be promoted well by an open access policy similar to that implemented by Sweden.

Indeed Denmark’s ratification of the Maastricht treaty was greatly aided by the

Treaty’s ‘transparency’ provisions. Under the Danish Act on Access to Public

Administration Files92, the scope of access is broadly similar to that of the Swedish

Freedom of the Press Act. Restriction apply in relation to personal privacy, or where

disclosure would reveal commercial secrets or endanger national security or

international relations. 93 Restrictions also apply in relation to the minutes of Danish

Council of State meetings. Here restrictions may only be lifted with the permission

of the Queen94. Despite the recent computer related advances however, access where

it is permitted, relates to documents. Where access is sought, a reply must be given

‘as soon as possible.’ Unlike Sweden however, access in Denmark is not extend to

foreign nationals.

In Finland, open access policy is similar to that of the country’s Scandinavian

neighbours and has almost as long a history. The access provisions in Finland have

92 Danish Act on Access to Public Administration Files, Act No. 572 (1985)93 ibid Art. 12 (1) (2) : Art. 13 94 ibid. Art. 10(1)


recently been reinforced by an amendment of the constitution which obliges the

government to release, on request, public authority information, or show where

existing law prohibits disclosure. Again as is the case in Sweden, access provisions

are extended to foreigners.

In the Netherlands, the idea of openness is also given a relatively high degree

of support. It is worth noting here that access rights are extended to foreign nationals.

Provisions of the Dutch Constitution,95 and the Act on Openness and Access,96 have

combined to ensure a degree of access that is on a par with that provided the USA..

A specific law however, had to be enacted to permit access to information from

privatised sectors of the Dutch administration.

While access is granted to information, requests for such, when directed to the

relevant government body [Overheidsorgaan], must related to specific matters.97

Selective censoring of material however, greatly facilitates the release documents

which would otherwise be withheld on the ground that they contained information not

directly related to the original request. When a request is made, a reply must be issued

within 15 days, and where the request is addressed to the wrong department, it must

be passed on to the correct one.98 Refusals must be accompanied by reasons based on

the relevant law and may be challenged by judicial review.

Denial of access in the Netherlands is based on the usual grounds relating to,

for example, personal privacy, national security, foreign relations, the investigation or

prosecution of crimes, commercial secrecy and administrative discussion documents

containing value judgements. 99 Dutch law however, provides that where disclosure is

in the public interest, then the information must be disclosed.

95 Article (110) Dutch Constitution 1983.96 Wet openbaarheid van bestuur, Stb. (1991) 703.97 For futher information see discussion in: Chairman Afdeling: Council Committee; Voorzitter Afdeling rechtspraak Raad van State, 4/12/86, Administratieve Beslissingen 1988, 339. See also commentary by J.M. de Meij, in: `De grens tussen openbaarheid en geheimhouding: Afwegingsproblemen in de Wob-jurisprudentie', Nederlands Tijdschrift voor Bestuursrecht (NTB), 1993, No. 7, p. 27098 Article (4): Wet openbaarheid van bestuur ; Stb. 1991, 703.99 Articles 10(2)(e) and 12(1)(1): Article 10(1)(c): Article 11(1): Wet openbaarheid van bestuur : Stb. 1991, 703.


Access to public authority documents in France, is primarily regulated

by Freedom of Access Law (1978)100 and Law 79-587 (1979)101 relating to

administrative decisions. With respect to personal privacy, access is only permitted to

‘personal’ documents which do not identify individuals or contain value

judgements.102 The French Access Commission (CDA)103 supervises access to

government documents and acts in an advisory capacity to interested parties. Under

French law, access is given to ‘documents.’ A document however, is defined as any

written paper, sound or video recording, or computer file. Requests for documents

are made to the relevant body, and a reply, (and where necessary, reason[s] for any

refusal) must be given within 2 months.

In an effort to formulate a policy which would deal adequately with both the

information market and the democratic goals, the French government attempted to

differentiate between possible categories of information which could be made

available to serve the two needs. The attempt failed however, and the government

finally agreed that , subject to a number of exceptions, public sector information

should be generally available to commercial enterprises, public and indeed foreign

nationals104.

French law does however, differentiate between access for personal use and

access for commercial use. It is interesting to note that the original text of the 1978

Freedom of Information Act was changed to include a provision which prohibited

access for commercial purposes. Charges however, are now levied for commercial

access, and the prohibition provision, according to the CAD, applies only to privacy

legislation, and cannot be used as the sole means of denying access to documents.105

Currently therefore, where documents are required for commercial purposes, charges

may be levied indeed many French government publications are sold at market value.

100 Loi no 78-753 du 17 juillet 1978: Titre premier: de la liberté d'accès aux documents administratifs.101 Loi no 79-587 du 11 juillet 1979 relative à la motivation des actes administratifs et à l'amélioration des relations entre l'administration et le public.102 Articles 1 & 3 of Law No. 78-753 of 17 July 1978.103 Commission d'accès aux documents administratifs104 CMLR, 1995 (32), pp. 395-442.105 See French Report in PUBLAW 2 Studies, final report, Appendix C, p 48.


Where documents are requested for personal use, access is free and the request

must relate to specific document. Government agencies will not supply a generalised

list of documents or create documents to suit the enquirer’s specifications.

While, some of the French access laws do in theory promote both commercial

and personal access to public authority information, the laws are mainly used by

individuals seeking information relating to themselves. The fact that little has been

done to publicise the nature of the information available and to implement practical

means of accessing it, has meant that few requests have come form the business and

professional sector.106 Despite this however, the rise in popularity of the ‘internet’ has

seen increasing amounts of French government material being actively communicated

to the public.

Looking now at Belgium, access here is provided by Act No. 1380/1-90/91107

However, pre-decisional documents are protected by a draft amendment to the

constitution. Fees for personal use exclude research costs and varying conditions apply

to the release of information for commercial reuse.

The legal provisions in Germany relating to public sector information appear

to be aimed more at restricting access than assisting it. The German Constitution, for

example, guarantees a principle of secrecy relating to the civil service108. This

provision operates along similar lines to the UK official Secrets Act. In addition to

this, the German Act on Federal Civil Servants109 outlines the nature of ‘official

secrets.’ The disclosure of such secrets, in circumstances that may harm national

interests, may be the subject of criminal proceedings.110 While Germany does not

have any general access laws per se, 111 the German Basic Law guarantees access

from generally accessible sources, 112 and most of the federal states permit specific

106 Maisl: Workshop on commercial and citizens’ access to government information. Luxembourg 26/6/95.107 Act No. 1380/1-90/91,.108 Article 33 (5) Constitution109 Bundesbeamtengesetz, par. 61110 Paragraph 353b Strafgesetzbuch. German Criminal Code.111 PUBLAW 3 Studies 3, 1995, country reports.112 Article 5(1), section (1). German Basic Law: See also PUBLAW 1 Studies, 1991; OJ, No. C 156/5, 8 June 1993 ,


access to documents by members of the press. Administrative law also provides

access to information under limited circumstances.

In Austria the constitution and federal law [Auskunftpflichtgesetz],113

provides for access to government documents. As far as pricing policy is concerned,

each public sector body formulates its own.

In Spain, while Article 105 (b) of the Constitution does stipulate a right of

access, there are no general access laws per se. As far as pricing is concerned, Spain

has no discernible policy.

Portugal too has yet to implement access legislation, however the Portuguese

Constitution does provide for access to administrative documents.114 Access however,

is restricted to Portuguese nationals. Unlike France, Portugal does differentiate

between types of information. ‘General interest’ information is provided free of

charge, however ‘special interest’ information attracts fees which vary in relation to

the government body concerned.

In Italy, access is provided for by Act of 7 August 1990.115 This permits

citizens to access administrative documents relating to themselves. The exact scope of

the act however, is uncertain. In terms of a pricing policy, the Italian government is

currently experimenting with a system whereby personal access is free but fees are

applicable for commercial users.

Finally, in Greece, access is governed by Law No. 1599.116 The provisions

however, are weak and rarely oblige public bodies to disclose information.117

Furthermore, where access is permitted, it is not extended to foreign nationals.

113 See:-PUBLAW 1 Studies, 1991 and PUBLAW 3 Studies 3, 1995, country reports.114 Article 37, section 1 (general right of information); article 48, sections 1-2 and article 268, sections 1-2 (access) of the Portuguese Constitution.115 Act of 7 August 1990 article 22(1).116 Law No. 1599/1986, article 16,.117 PUBLAW 1 Studies, subject report, January 1991, p. 18.


Conclusions:

The member states outlined above can be seen therefore to exhibit a high

degree of divergence in terms of the scope and nature of their respective access

policies. Furthermore, within individual states many inconsistencies exist.

The needs of administrative openness and transparency appear best served in

Finland, Denmark, the Netherlands and France, while access provisions in Italy and

Greece appear ineffective.

In relation to the information market, policies on pricing and public and

private sector roles, where they exist, lack the cohesion to operate on either a state or

an inter-state level.

Having examined the evolution and nature of access policies implemented by

the EU member states, I will, in the next chapter (chapter 4), now, for comparative

purposes, examine those operating in the United States of America, a country that

places great emphasis on freedom of speech and currently leads the world in terms of

annual turnover from its information market.


CHAPTER [4]


The United States of America

The current nature of access policy in the USA is a product of the tension

between constitutional guarantees concerning freedom of speech and freedom of the

press, and the economic dictates brought about by the commercial value of

government information.

The American Constitution

The current body of law which supports the citizen’s right of access to

government information can be traced directly to the United States Constitution First

Amendment which provides that:

“... no act of congress shall abridge either freedom of speech or freedom of the press.”

While the US Constitution does not mentions the nature of access to

Government information, it is unlikely that restrictions as to its use, could be enforced

once the information in question has been made public. Indeed Robert Gellman has

concluded that a right to access under the US Constitution actually exists,118 although

it may be limited to judicial records.

Government Copyright

Ease of access to government information has also been facilitated by

provisions of the Copyright Act. The US Constitution, as well as securing freedom

of the press and freedom of speech, also provided Congress with the power to:-

“... promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”119

As has been highlighted in the previous chapters, the enforcement of government

copyright has always been seen as an impediment to the equitable dissemination of

118 Robert Gellman (1995) Public Records -- Access, Privacy, and Public Policy: in 12 Government Information Quarterly 391 (1995).119 The Constitution of the United States of America Article 1 Par. 8 cl.8


public authority information. In the United States however, the current Copyright

Act,120 reiterating provisions first passed in 1895, provides that:-

“Copyright protection ... is not available for any work of the United States Government ...”121

The Act defines ‘a work of the United States Government,’ as being:-

“ ... a work prepared by an officer or employee of the United States Government as part of that person's official duties.”122

This prohibition on government copyright, can be traced directly to a Supreme Court

decision in 1834. The case, Wheaton v. Peters (1834),123 concerned a former

supreme court reporter (Wheaton) who sued the then current reporter (Peters) for

infringing the copyright protection he allegedly held in court reports which formed

the basis of a Peters publication. In giving its decision the court ruled that neither man

could have copyright in the decisions of the courts.

While copyright protection was available for value added publications,124 e.g.,

those including annotations etc., the idea of a general prohibition on protection for

government works spread, and became enshrined in the Government printing office

Law (1895) which provided that:-

“... no publication reprinted from stereotype or electrotype plates and no other Government publication shall be copyrighted.”125

This provision in turn, formed the basis of paragraph 8 of the Copyright Act of 1909

which stipulated that:-

“No copyright subsists ... in any publication of the United States Government, or any reprint, in whole or in part, thereof ..."

While this prohibition is now well settled in law, no single reason for its

existence has ever been unanimously agreed on. The most plausible reasons, I

believe, emanate from the US Constitution where (i) the First Amendment

discourages interference with the dissemination of information, and (ii) copyright 120 17 U.S.C. §105 (1994).121 US: Copyright act: 17 U.S.C., Para.105, It should be noted that the US Copyright Act does not prohibit copyright in this instance,, outside of the United States122 US: Copyright act :17 U.S.C., Para. 101123 Wheaton v. Peters 33 U.S. (8 Pet.) 591, 668 (1834). see also, "Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations" Patterson & Joyce: 36 U.C.L.A. L.Rev. 719, 731-4 (1989)124 See Davidson v. Wheelock 27 F. 61 (1866); Howell v. Miller 91 F. 129 (6th Cir., 1898): Banks v. Manchester 128 U.S. 244 (1888)125 28 U.S. Stat. 608 (1895)


protection is provided for, to promote the ‘useful arts.’ The argument in relation to

(ii), of course being that Governments do not need such encouragement.

While such a prohibition greatly facilitates the dissemination of government

information, the US Government can of course withhold information where

disclosure would be detrimental to the interests of state security, individual or

corporate privacy etc. Aside from such restrictions, US citizens may reproduce

government documents in whatever form they wish, and for what ever purpose,

including profit. The reproducing of government documents is even aided by printing

laws126 which provide that the US Printing Office must sell copies of the plates used

to print such documents at a maximum price of cost plus 10%.

State Law

It should be noted here that the restrictions on government copyright to not

apply to state government and local governments. Individual states can exercise, and

have exercised copyright in their statutes and other works, and while the copyrighting

of state statutes may have a dubious constitutional basis, such control exercised in

relation to for example, geographical and personal data have so far largely survived

legal challenges.

The irony here worth noting is that much of this type of information, which

was formerly available to the public, has now, thanks to its increased value in

digitised form, become increasingly regulated on a commercial basis.

Aside from the inconsistencies relating to state and local government control,

the provisions of the American Constitution, Copyright Acts, and Printing laws, are

therefore of particular significance to the issue of open access, as they greatly reduce

the number of legal impediments to the equitable dissemination of information. This

is particularly important when one realises that the US Government is by far the

largest producer of information in the USA.127

126 44 U.S.C. Para. 505 (1994).127 Office of Management and Budget Circular A-130 : Para.7a, 58 Federal Register 36068, 3607 (2/7/93).


The Freedom of Information Act

While the provisions of the US Constitution and the Copyright and Printing

Acts together helped foster the idea of open access to Government information, they

acted more as restrictions to Government interference than as facilitators of open

access. Many Government bodies during this period adopted the policy of discretion

in relation to requests for information and this usually meant that such requests were

denied. The situation however, changed radically in 1966 with the passing of the

Freedom of Information Act.128 The main provisions of the FOIA require federal

agencies to provide on request, any document in their possession. The act stipulates

time limits within which agencies must respond.129 Refusal to grant such a request

must be justified by the agency in question and such a refusal can ultimately become

the subject of judicial review.

There are of course a number of grounds on which an agency may refuse a

request. These grounds concern the protection of government and individual interests

such as national security, law enforcement, commercial confidentiality, pre-decisional

opinions [not facts] and personal privacy etc. However, a document can not be

withheld simply because part of it contained sensitive information. Where this

situation arises, the agency in question is required to release the document with the

‘offending’ part censored.

The FOIA also sets out the level of charges which can be levied for

information released. The underlying policy here is that despite the fact that

information may reused commercially, fees levied must not reflect the commercial

value of the information released. The fees levied at educational, media and scientific

[non-profit making] establishments are restricted to copying costs, while commercial

enterprises are charged an additional fee to cover searching costs. However, no fees

are involved where disclosure of the information in question is deemed to be in the

public interest.

128 Current law:- (1994). [FOIA] 129 It should be noted that since the act came into force agencies have regularly failed to respond to requests within these time limits.


While many agencies are still reluctant to part with their information, the

passing of the FOIA has meant that now they are at least under a legal obligation to

do so, and aside from the symbolic importance of such an act, the effect has been that

much information previously guarded jealously by these agencies, has now become

available to US citizens and corporations.

The Influence of Technology

As the previous chapters of this paper have highlighted, much debate over the

past couple of decades has centred on the sufficiency of existing laws to deal with the

issues raised by the ever increasing rate of technological innovations. In relation to

access to government information, debate in the US focused on the effectiveness of

the Freedom of Information Act, and in this respect a House Committee on

Government Operations concluded in 1986130 that the FOIA, being geared towards

answering specific requests for paper documents, was becoming increasingly

ineffective in dealing with requests at a time when more and more records were held

in digitised form and where information could be placed on computer networks and

accessed without the need for time consuming requests.

Again, as was previously the case, many agencies, knowing they were under

no legal obligation whatsoever to store and release information this way, refused to

do so and complied only with their obligations as set out in the FOIA.131 In SDC v.

Mathews (1976),132 for example, the court decided that the National Library of

Medicine was not obliged, under the FOIA, to release a copy of its database after a

request, under the act, to do so. This decision attracted much criticism as it, in effect,

awarded the agency a form of copyright control. Furthermore, the court, in

sanctioning the charging of a high price by the agency’s for its information, gave

great encouragement to other government agencies intent on doing likewise.

130 Electronic Collection and Dissemination of Information by Federal Agencies: A Policy Overview , House of Representatives Committee on Government Operations, House Report No. 99-560, 99th Congress, 2d Session (1986).131 It should be noted however, that a number of agencies readily adopted the idea of computerised storage and dissemination. 132 SDC v. Mathews , 542 F.2d 1116 (9th Cir. 1976).


Fortunately however, the aspirations of such agencies were severely dented by

a decision nine years. The case, Legi-Tech v. Keiper(1985),133involved the

challenging of law which had the effect of creating a state monopoly on the

dissemination of legislative materials. The court rejected the argument that the

agency’s sole incentive was financial and not regulatory. In its decision, the court,

noting that:-

“... the profit motive which is the incentive for creation is also a disincentive for suppression of the work created,”134

was persuaded that the provisions of the statute [which prohibited the granting of

licences], precluded the possibility of a solely financial incentive and were consistent

with regulatory intent. The statute was therefore struck down as being contrary to the

provisions of the First Amendment.

Budget Circular A-130

During the early 1980s, with the potentials of an information market a high

governmental priority, the Reagan Administration, published Budget Circular A-

130.135 This document outlined Government policy towards the dissemination of

public authority information. The policy favoured the private sector, in that the

public sector was restricted to disseminating either information it was legally obliged

to release or information which was not dealt with by the private sector. This left the

private sector in a position where it could process vast quantities of raw government

data in ways which would make it a valuable commodity on the information market.

Fair competition and equitable distribution of information were also encouraged by

prohibiting public sector bodies from entering into exclusive joint ventures with

private sector commercial enterprises.136

Aside from actively promoting the private sector, this policy may also have

been formulated to ensure that any open access zealots in the public sphere were

133 Legi-Tech v. Keiper[9] 766 F.2d 728 (2d Cir. 1985).134 Legi-Tech v. Keiper 766 F.2d 728 (2d Cir. 1985): at 735.135 Office of Management and Budget Circular A-130: 50 Federal Register 52729 (24 Dec., 1985).136 See for example the revocation of the US PTO’s exclusive agreement with private sector enterprises which would have had the effect of creating a private sector monopoly on patent and trademark information, in Electronic Collection and Dissemination of Information by Federal Agencies. Hearings before a Subcommittee of the House Committee on Government Operations. 99th Congress, 1st Session. (October 18, 1985).


discouraged from trying to emulate the private sector, the argument being that the

private sector is always in a better position to commercially exploit government

information.

While Reagan’s Budget Circular A-130 did much to restrict the degree of

control that government agencies exercised over the dissemination of their

information, a number of rather dubious statutes and regulations seem to have run

contrary to the spirit of the Reagan [and later Clinton] policy.

In the early 1990’s, for example, a bill was introduced to Congress which had

the effect of levying a fee of 46 cents per minute for the use of a Federal Marine

Commission database, or any 3rd party database containing the same information.

The aim of this fee was to recoup losses incurred by the ending of a type of taxation

directed towards boat owners. Although contrary to the growing body of law

favouring equitable access, the bill had a virtually unhindered passage through

congress and became eventually entered the statute books. 137 It is interesting to note

however, that whereas it was estimated that the act would generate over $800 million

over 3 years, it only raised $0.5 million.138

Similarly, two years later, Congress passed a law which created and regulated

the National Technical Information Service,139 a government agency which stores and

disseminates government complied scientific data. The statute provides that the NTIS

should be self financing. This of course means that while some of the information it

holds has little value, the costs incurred in administering this data are added to the

fees charged for the release of the other more valuable data. Furthermore, to offset

competition from the private sector, which has access to non-copyrighted government

information, the NTIS has a number of its products under conditions quite similar to

those demanded by copyright holders.

Furthermore, even when it is obvious that the exercising of copyright-like

control is inconsistent with prevailing law, Government agencies have done their best

137 High Seas Driftnet Fisheries Enforcement Act, Public Law 102-582, 106 Stat. 4900 (1992).138 ATFI User Fees: General Accounting Office [1995] (AIMD-95-93R).139 15 U.S.C. Para.1152 (1994).


to retain control of their information for as long as possible. In Petroleum

Information Corporation v. Department of the Interior [1992],140 the Bureau of Land

Management refused a request made under the FOIA by a commercial enterprise for

geographical data which was held on a database that the Bureau was setting up. The

Bureau claimed that the information was pre-decisional in nature and therefore

exempt under the FOIA. It appears however, that the Bureau intended to set up a

quasi-commercial information service of its own. The court decided that even if the

information was pre-decisional it comprised facts and not opinions and should

therefore have been released. However, as the litigation lasted a number of years, the

plaintiff in question had lost valuable time in setting up the commercial enterprise.

While this decision did much to reduce Government agencies’ use of

copyright-like controls, such legal devices were finally prohibited under the

provisions of the Paperwork Reduction Act [1995]. 141

The Paperwork Reduction Act

The Paperwork Reduction Act was first passed in 1980 with the intention of

reducing the amount of paperwork that the private sector had, by law, to produce and

manage. The scope of the PRA was broadened in 1995 to regulate the dissemination

of government information and prevent government agencies implementing

dissemination practices which would create monopolies, regulate or restrict reuse of

information, and profit from the release of information. The PRA also stipulated that

information technology should be implemented,142and that government agencies

should:-

“[encourage] a diversity of public and private sources for information based on public information.”143

The greater emphasis here on ‘public sector sources’ has been made possible

over the last couple of years by virtue of the fact that the wide availability of

sophisticated data processing software and the rise of the ‘internet’ has made adding

value to data and dissemination the results, comparatively cheap, simple and

140 Petroleum Information Corporation v. Department of the Interior, 976 F.2d 1429 (DC Cir 1992).141 44 U.S.C. Para. 3506(d)(1)-(4) (1994).142 44 U.S.C. Para. 3504(d) (1994).143 44 U.S.C. Para. 3506(d)(1)(a):(1994).


effective, and as therefore increased the feasibility of government agencies to set up

information services.

Accordingly, in 1993, the Clinton Administration amended the Reagan policy

document (Budget Circular A-130) to broaden the remit of government agency

dissemination and remove the protected status of the private sector.144

Current US policy therefore recognises that while the private sector is best

placed to exploit information, the public sector must make this information available

both to the private sector and to the citizens, in such a way as encourage

entrepreneurial efforts of the private sector.

The result now, is that the government is providing information, previously

disseminated for a high price by the private sector. For example, THOMAS145

information service provides free access via the ‘internet,’ to congressional legislative

materials formerly provided by the private sector. Legislative materials are also

being made freely available on the ‘internet,’ by law schools146 and legal

newsgroups.147

Pending Issues:

The Sufficiency of the Paperwork Reduction Act:

As has been previously outlined, the technical breakthroughs of the 1970’s

and 1980’s in the field of digital storage had greatly reduced the effect of the

Freedom of Information Act and paved the way for the Paperwork Reduction Act of

1995. Similarly, the innovations in computer networking, were by the mid-1990’s,

beginning to highlight weaknesses in the Paper Reduction Act.

144 Office of Management and Budget Circular A-130 at §7a, 58 Federal Register (2 July, 1993). Reissued 20 /2/1996:- 61 Fed. Reg. 6428. Available at http://www.whitehouse.gov/WH/EOP/omb.145Operated by the Library of Congress, named after Thomas Jefferson and accessible at http//thomas.loc.gov146 For example:-Harvard Journal of Law & Technology-:-http://studorg.law.harvard.edu/jolt/ ; Web Journal of Current Legal Issues -available at:- http://www.ncl.ac.uk/~nlawwww/ ; Villanova Federal Web Locator and Federal Court Locator- http://www.law.vill.edu147 For Example:-Legal Domain Network - available at:- http://www.kentlaw.edu/lawnet/lawnet.html Mailbase Law Listservs - available at:- gopher://nisp.ncl.ac.uk UK Legal Newsgroup - at:- http://bas-a.bcc.ac.uk/~uctlxjh/uk.legal/uklhome.html


The main reason that the PRA had lost much of its effectiveness soon after it

was enacted is simply that it took six years to pass through Congress, by which time

of course, networking was replacing tape and disk distribution as the main means of

information dissemination. As has been the case in, for example, Sweden, the exact

legal status of networked data under the existing laws, is as yet unclear.

The Balance Between Public and Private Sector

While the ideals of equitable dissemination are arguably best served by a

diversity of information providers, the recent increase in government sponsored

information dissemination on the ‘internet,’ has raised a number of fundamental

issues.

The crux of the problem is that any implemented policy in this area must

provide incentives for the private sector. It is the private sector that has spearheaded

most of the recent technological breakthroughs and is best placed to do so in the

future. This however will not be possible if the private sector is unable to compete

with the public sector due to the latter’s increasing ability to cheaply process its own

raw date. Should this happen, then not only will the rate of technological

advancement be reduced considerable but, perhaps more importantly from the

democratic perspective, the government will have a virtual monopoly on the

dissemination of its own information.

The US administration is therefore attempting to come up with a formula

which can delineate the roles of both sectors, so that the private sector has sufficient

incentive to operate and spearhead innovations without creating pricing structures

which interfere with the equitable distribution of information.

Conclusions:

As outlined above, the constitutional guarantees on freedom of speech and

freedom of the press have formed the backbone of access regulations that have done

much to promote openness and transparency in the United States of America. US

citizens, with the help of (a) the recent Paperwork Reduction Act and OMB circulars,

to ‘free up’ more government information, (b) the Freedom of the Information Act to

permit access to it, and (c) the utilisation of the internet to ease the practicalities of


access, currently enjoy a level of access that comes close to level aspired to by the

European Commission and Council.

As far as the information market is concerned, the United States is currently

the world leader, and the various initiatives employed over the past decade by the US

administrations to regulate the partnership between the public and private sectors are

intended to ensure that the United States maintains its dominant position in the Global

information market.

In this respect, I believe that the European Union institutions and the member

states have much to learn from the American model.


CHAPTER [5]

S ummary of Chapters [2] to [4]

As has been highlighted in Chapter [2], the effectiveness of access policies

implemented by the EU member states, falls far short of that hoped for by the

European Commission and Council.

The promotion of administrative transparency and the development of an

information market, which are increasingly being effectively catered for in the United

States, is current being impeded by a wide variety of policies conflicting policies.

Transparency & Openness

Looking first at the regulations aimed at promoting transparency and

openness, it can be seen that as democratic and constitutional issues are closely

intertwined then it is no surprise that where democratic ideals are valued, regulations

promoting such ideals are often backed by constitutional guarantees. The scope of

these guarantees however, can vary from state to state.

There are strong constitutional provisions in the Swedish, Dutch and Finnish

Constitutions, while those in the Austrian, Spanish and Portuguese constitutions are

more limited in nature. The United Kingdom of course does not have a written

constitution and the German and Belgian Constitutions actually guarantee certain

forms of administrative secrecy.

Looking further a field, the open access policies in the USA, are firmly rooted

in the American Constitution. The prohibition on federal government copyright,

which greatly facilitates the dissemination of government information, is entirely

consistent with the constitutional provision which stipulates that protection should be

awarded to provide the incentive for creativity.

Within the European Union, the Commission and Council have been greatly

influenced by the freedom of information aspects of many of the international treaties


and conventions that the member states are signatories to. Consistent with this, the

European Union has outlined in numerous publications, including Directives,

Decisions, Action Plans and Recommendations, that access by the public to

government information is a vital element in its move towards promoting openness,

transparency and citizen participation within the Union. The past 20 years has seen

the scope of such access enlarged to include guidelines on reply time limits,

exemptions and appeals procedures. The past couple of years has seen an increase in

the amount of EU material placed freely on the World Wide Web.

While the European Union has set in place procedures aimed at giving citizens

access to information generated by its institutions, so far few of the member states’

governments have followed this example. Access laws vary greatly from state to

state. Sweden however, has had a long history of open access and since the Freedom

of Information Act of 1776 has had an almost unbroken succession of potent access

legislation. The scope of access legislation in Sweden today is extremely broad and

even gives rights of access to foreign nationals. The Swedish government has done

its best to ensure that both legislation, and public bodies, keep pace with

technological innovations. Exemptions areas are strictly defined and disclosure can

only be refused where likelihood of damaging the specific interest is clearly shown.

Appellate procedures are clearly defined and extensive. Sweden therefore is one of

the few member states to implement access regulations defined primarily by

exemptions.

The United Kingdom, on the other hand, has done little in terms of legislation

to guarantee citizens access to its vast quantities of information. Where regulations

do exist they have generally come by virtue of the EU and even then the opt out

clauses and price structures have been such as to contributed little to openness and

transparency. The same can be said of the Code of Practice on Open Government

which, although not aimed at generating income, nevertheless lacks the potency of

actual legislation. The often cited so-called provision of ministerial accountability

may at best guarantee the truth but has rarely guaranteed the whole truth and nothing

but the truth. The recent easing of Crown Copyright control however, has increased

the dissemination possibilities for government material and some of this is now freely


available on government web servers. The new joint public body/private sector

ventures into the information market has also made more government available,

however, this is aimed more at recouping revenue rather than providing information

to the people who paid for it in the first place.

Of the other European Union member states, where access regulation have

actually been implemented, their strength can vary greatly from state to state. The

Danish, Dutch and French access laws for example, are relatively effective, while

those in Belgium and Austria are less so. The access laws in Italy and Greece are weak

and easily circumvented by government officials. Furthermore, reply time limits,

where they exist, vary from 15 days in the Netherlands to 2 months in France and

include an uncertain ‘as soon as possible,’ in Denmark. Most states, except Sweden,

Finland, France and the Netherlands deny access to foreign nationals.

Aside from the Scandinavian countries, the Netherlands and France, the

member states have therefore much to do, if their countries are to demonstrate the level

of openness and transparency that the European Union Council and Commission

aspires to and expects of them.

While the access policies in majority of the EU member states do little to

promote the ideals of administrative openness transparency, the same can not be said

for the policies implemented in the USA. Here, the legislation promoting the idea of

informing the public is heavily grounded in the US Constitution. From the

Constitution and in particular the first amendment, has come: a restriction on

enforcement of government copyright; printing law legislation guaranteeing the

dissemination of government publications; a Freedom of Information Act obliging

government bodies to supply information at cost on request; a Paperwork Reduction

Act to prevent government bodies creating either monopolies, copyright-like controls

or indeed profits in relation to the information they hold, and finally a policy

document aimed at ensuring a diversity of information sources. A diversity of

sources is a necessary factor which ensures that a suitably encouraged private sector

will preclude the possibility of a government monopoly and an adequate level of


government service will preclude a private sector price structure which will be

detrimental to the public at large.

Development of The I nformation Market

Looking now at the policies and regulations effecting the development of the

information market, again there appears to be wide diversity amongst European

countries, and again the European Commission and Council has outlined on many

occasions its belief that access to public authority a major factor in the promotion of

this valuable market. DGX111, the Directorate-General within whose remit this task

falls, has published many documents outlining the possible means by which the task

could best be accomplished. The IMPACT programme in 1988 formed the basis of

the Synergy Guidelines which recommended co-operation between the public and

private sector in the developing of the information market. The necessities of access

to public authority information, the partnership between public and private sector and

the liberalising of communications were further emphasised in the 1993 White Paper

on Growth Competitiveness and Employment, the various PUBLAW Reports, the

1995 INFO2000 programme and the Uruguay Round of GATT. A number of EU

policy documents suggest that the Union’s competitive position would be enhanced

by the adoption of liberal access laws similar to those adopted in the USA.148

Despite these recommendations and initiatives, the development of a

European Information market is as yet, far from being realised. The Uruguay Round

of GATT raised awareness of the global nature of the market however, the PUBLAW

reports have shown how far the European Union has lagged behind the USA in

developing the market and how ineffective the Synergy Guidelines have been in

helping to close the gap.

While the Commission and Council have formulated a number of potentially

effective proposal. The information policies of the member states either don’t exist,

148 For example:- Council Decision of 26 July 1988 concerning the establishment of a plan of action for setting up an information services market, 26 July 1988 88/524/EEC; Council Decision of 12 December 1991 adopting a programme for the establishment of an internal information services market, 12 December 1991 91/691/EEC; White Paper on Growth, Competitiveness and Employment: The Challenges and Ways forward into the 21st Century, 5 December 1993 COM(93) final; Europe and the Global Information Society (Bangemann Report) 26 May 1994; Europe's Way to the Information Society: An Action Plan, 19 July 1994 (follow-up to the Bangemann Report) COM(94) 347 final.; PUBLAW 2 Studies


or are at best fragmented, varying greatly amongst the member states and even within

individual countries.

In Sweden for example, the emphasis on the democratic rights perspective has

resulted in a rather neutral attitude towards the private sector. In the United Kingdom

however, the lack of any recognisable information policy has greatly inhibited the

development of an information market. This has resulted in, amongst other things,

the haphazard and slow implementation of computer technology within the various

government departments. In addition to this, the long history of administrative

secrecy has greatly hindered the development of vital access regulations and has

instead given rise to given rise to such impediments as Crown Copyright control,

Official Secrets and Public Records legislation. The establishing of the Executive

Agencies mandated to generate revenue, has been a further impediment to the

information market.

In the other member states, again few discernible policies exist.. In Belgium

Austria and Portugal where policies do, conditions of access vary amongst these

countries and vary within each country. This lack of a co-ordinated approach has

meant, amongst other things, that few in the private sector know what information is

available or how and where to obtain it.

In the United States itself, the information market policies and regulations are

more effective. The constitutional guarantees and the general prohibition on

government copyright have formed the basis of open access policies which have

greatly benefited the development of America’s information market. The access

policy in the USA highlights the tension between (a) the democratic imperative and

the market imperative, and (b) the dissemination roles of the public and the private

sector. The general policy in the USA has been that the private sector must

spearhead the development of the market. To this end, the Paper Work Reduction

Act has been instrumental in promoting this policy inasmuch as it prohibits the

commercial ventures and monopolising practices of government departments.

Current US policy is now more focused and is so far paying huge dividends.


CHAPTER [6]

RECOMMENDATIONS

As has been made clear in the preceding chapters, the access policies of the

EU member states have so far proved singularly ineffective at maximising the twin

goals of information market development and administrative transparency. While the

Scandinavian countries in particular have done much to promote openness and

transparency within their respective administrations, the development of a European

information market has so far had little effective encouragement from any of the

member states.

As a consequence, the European Information market has yet to offer a serious

challenge to the US information market.

In this final chapter therefore, in an attempt to remedy this situation, I intend

to examine a number of the problematic issues highlighted in this paper and offer

some tentative recommendations aimed at addressing them.

1 . The Variations amongst the M ember S tates in the N ature and S cope of A ccess R egulations

Effect of Variations on the development of the European Information Market:

While it is clear from the previous chapters that few European nations have

implemented effective and cohesive access policies, the fact that such provisions vary

from state to state has been equally detrimental to the development of a European

information market. Such diverging policies operating at state level have created

distortions in the internal market, inhibiting its growth and doing little to improve the

European challenge to the American information industry.

For example the extension of access rights to non-nationals places gives unfair

advantage to markets in states where such extensions are prohibited.


Similar distortion occurs where states differentiate between legal persons and

natural persons and grant access accordingly. Throughout the member states, the

pricing structures, where they exist, vary greatly and such variations often exist

amongst the public sector bodies within individual states.

Prices levied on the private sector can range from dissemination costs to

market price. It can therefore be easier and cheaper to obtain information in some states

than in others.

Again distortion occur where the formats in which information is released differ

from state to state [digitised data being more valuable that reams of paper].

Finally this lack of an overall cohesive policy causes problems for enterprises

intending to operate in more than one market, as they to discover and then negotiate the

various access regulations.

It appears obvious therefore that as any variation in the nature and scope of

access laws will create distortions and unfair competition, then any proposals aimed at

developing the information market, will have to adequately address this issue.

Effect of Variations on Openness and Transparency

While fact that access regulations vary from state to state, has an undoubted

detrimental effect to the development of a European information market, such

inconsistencies may seem inconsequential to the promotion of openness and

transparency. This however is not quite the case. Where particular states intend

amending, overhauling or in some cases implementing access regulations, it is easy for

them to implement low levels of access where there is no unified approach to the subject

amongst their neighbours.

It can concluded therefore, that maximising the twin goals of

information market development and administrative transparency requires the

implementation of access regulations in the member states that are equal in nature,

scope and effect.


2. The Type of Regulation Required

In 1989 the European Commission issued the Guidelines for Improving the

Synergy between the Public and Private Sectors in the Information Market. The

issuing of ‘Guidelines’ dealing with specific issues within the EU has been provide

for under Article 103 of the EC Treaty, and inasmuch as they operate at an EU level,

the Synergy Guidelines would appear suitable for the harmonising of access

regulations. The problem with the Synergy Guidelines, as has been outlined by

PUBLAW 2, is that, lacking the potency of actual legislation, they have proved

ineffective. The EC Treaty however, has also provided for the adoption of

Directives as a means of harmonising regulations effecting the establishment or

functioning of the internal market.149 The Commission has been given the power to

issue Directives by virtue of Article 90 (3) of the EC Treaty. Issuing a Directive

however, must be consistent with the principle of Subsidiarity. This principle, as set

out in Title II Art (3)B of the Treaty on European Union (Maastricht) is defined as

follows:-

“In areas which do not fall within its exclusive competence, the Community shall take action .... only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed actions, be better achieved by the Community.”

One of the European Union’s most fundamental objectives has been the

creation of an internal market. This has been placed on a firm legal footing in a

number of treaty provisions. The EC Treaty provides for the creation of a

competitive internal market,150 free from distortions151, in which obstacles to the free

movement of goods, persons, services and capital between states, is abolished.152 As

distortions within the information market have a detrimental effect, not only on this

market, but on the European market in general, then there is an increased legal

justification for such distortions to be removed.

149 Eureopan Community Treaty Art. 100(a)150 ibid. Articles 3(1), (7) a151 iid. Art (3) g152 ibid. Art.(3) c ; See also Articles 30 to 37


As far as promoting access from the democratic perspective is concerned, while this is

not mentioned per se in any of the Treaties,153 it can be implied from various

conventions and international treaties which the EU member states are signatories

to154. Furthermore, the need, from the democratic perspective, to harmonise access

regulations is implied in Article B of Maastricht which emphasises, inter alia, the

need to promote economic and social cohesion.155

Therefore, taking into considering, the effects of the current variations in

access regulations amongst the member states, the need for harmonisation, and the

inability of the Synergy Guidelines to provide effective harmonised regulation, a

Directive would appear to be the legal instrument most suited to address this problem,

and the European Commission would appear to have the competence and justification

to issue one.

The problem however, is that the provisions of a Directive have to be agreed

upon between member states and this process can often take five or six years.

Furthermore, when one considers for example, the UK’s stance on access, it may take

much longer. It is necessary therefore to ‘pitch’, any proposed Directive in broad

terms so that, ‘qualified majority,’ aside, a broad consensus can be reached. As

Jacques Santer pointed out in a recent ‘key messages for the Union', speech on

Subsidiarity:-

“... it [Subsidiarity] ... means not harmonising every last nut or bolt ... ”

3 . The N ature and S cope of A ccess R egulations

While it is true however, that ‘every last nut and bolt’ of any proposed access

Directive should not be regulated, when one takes into consideration all of the

aforementioned arguments, it would appear that, at its most basic, such a Directive

should provide that access should be permitted to all public authority information

except under clearly defined circumstances.

153 A delecration on the right of access is of course annexed to Maastricht, (No. 17 Final :Maastricht, 7 February 1992, OJ, C 191, 29 July 1992.154 For example Art. (3) and Art. (10) of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950)155 Treaty on Eureopan Union (Maastricht) Art B


Exemptions

Consistent with the prevailing body of law relating data protection, access should

only be denied where disclosure can be shown to cause potential harm to an interest or

interests which have been clearly defined. Where a request is denied, the refusal should

outline the reasons and provide details of the appeals procedures which should, as a final

resort, involve the European Court.

The definition of public authority information

If access is to be permitted to public authority information then quite

obviously it must be established with certainty, exactly what this means. If ambiguity

exists then obstructive bureaucrats may not find it too difficult to argue that the

relevant regulations do not apply to what ever information they may be requested to

release. It is also true however, that formulating an exhaustive list of exactly what

constitutes such information can cause similar problems. With this in mind, it would

appear that such a definition should take the following form: Public authority

information includes all information collected by public authorities in the normal

functioning of their duties.

Response times

On receipt of a request, the authority in question should issue a reply within a 14

days. Refusal to reply within this time limit should be construed as a refusal and, for the

purposes of appeal, treated as such.

Access for non-nationals:

For the purposes of equity, access should be permitted to nationals and non-

nationals alike.

4 . Implementation and effects of Technology


Public authorities should employ technology to the best effect taking into

consideration: (a) the uses data will be put to by the private sector and

(b) the public authority’s commitments in relation to transparency and to

keeping the public informed.

Access regulations should be formulated so as to ensure that their aims cannot be

adversely effected by the implementation of computer and network technology

5 . Government Copyright

One of the main impediments to the equitable dissemination of public

authority information, has been the exercising of copyright control. As mentioned

[above] the awarding of copyright protection has the primary aim of encouraging

creativity and as such, therefore appears inapplicable in relation to Government

works. It is also argued that awarding such protection to government works ensures

that such works are protected from distortion and can be universally accepted as

representing ‘official’ governments positions. It would appear therefore that if a

general prohibition on government copyright cannot be agreed to, the nature of this

protection should be altered so as to limit the holders rights of action to those relating

to misrepresentation. The ‘fair use’ doctrine should be extended to include all access

to government information.

2 . The R oles of the P ublic and P rivate S ectors

As has been previously outlined, the private sector is best placed to collect

information and the private sector is best placed to market it. The private sector must

therefore be given suitable incentives to do so, and must do so, with out creating price

structures that result in a so called ‘nation of information haves and have nots.’

It is possible however, to formulate a policy whereby the private sector can

have access to information at competitive rates and the public sector can provide a

level of information to the citizens which would satisfy the transparency criterion,

while at the same time allowing a degree of cost recovery which would not place the

public sector in a position where they could seriously challenge the private sector.


The role of the public sector would be to provide data to the private sector at

dissemination cost plus a factor which would represent the fact that the private sector

by its nature can increase the value of data and market it more cheaply and efficiently

than the public sector can. Therefore in a given situation where the public sector may

‘pay’ less for data [as they already have it] than the public sector does, the private

sector, by its nature, can realise more profit from it than the public sector can. This

of course only holds true where the cost to the private sector is calculated to give this

result.

Alternatively, if the member states can agree a binding policy which does not

entail public sector attempts at cost recovery [the UK for example may object] then

the public sector should provide its information to whoever request it for a price

reflecting dissemination cost alone.

Active or Passive dissemination of information

The right of access to information should be complemented by a duty to

provide it. This would include ensuring that both the public at large and the private

sector, were aware of exactly what information is available, where and how to obtain

it. There is need, also for economic reasons, to have an active policy of offering

information rather than to wait to be asked for it.

CONCLUSIONThe weight and cogency of the arguments as set out in Chapter 1 of this paper

point convincingly to the conclusion that liberal access policies are vital both to the

democratic ideal of transparency and to the effective development of the European

market in general, and to the information market in particular.

Furthermore, with particular reference to the information market and

European market in general, the nature and effect of existing member states’ policies

strongly suggest that harmonised regulation across the member states is a vital.


As the existing guidelines and recommendations have proved ineffectual in

providing this harmonised regulation, a Directive appears to be the only effective

solution, and in this respect, the European Commission has the competence to issue

one.

In terms of fulfilling the three main objectives of this paper, I believe I have

accomplished this by:-

(1) Outlining in Chapters 2, 3 and 4, the evolution and nature of the policies

and regulations governing access to public authority information, that have

been implemented by the European Union institutions, the European Union

member states and the United States of America

(2) Examining in Chapters 2 and 3, the degree to which the implementing of

access policies and regulations has maximised the promotion of the European

Commission and Council’s objectives of (a) increasing administrative

transparency and (b) developing the European information market.

(3) Outlining, in chapter 5, the nature of the main problematic issues that have

arisen.

(4) In chapter 6, setting out a number of proposals aimed at addressing these issues.

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