THE CONCEPT OF DOCUMENT (VS INFORMATION)

When colliding rules of data protection and public access to documents legislation are assessed, one of the central issues to consider is how the material scope of the data protection legislation and public access to documents legislation overlaps.

The Transparency Regulation applies to all documents held by an institution.²⁷⁹ It is therefore essential to elaborate the concept of document in detail. For the purposes of this thesis, it is of a particular interest to assess how document differs from information, and how it relates to data banks. This will be assessed later in the concluding chapter together with the material scope of data protection legislation and, in particular, with the concept of personal data.

European public access to documents legislation provides the public with access to documents, not to information as in some Member States.²⁸⁰ The difference between document and information might seem significant. Information is considered a wider concept and it can be argued that it covers more different types of data than a simple document does. However, the wide definition of document together with the case-law of the Court of Justice of the European Union has rendered the difference a minor one.²⁸¹

The Transparency Regulation defines document as “any content whatever its medium (written on paper or stored in electronic form a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility”.²⁸² Roughly, three

279 Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents (OJ L 145, 31.5.2001, p. 43–48), article 2(3).

280 H. Kranenborg and W. Woermans, Access to Information in the European Union – a Comparative Analysis of EC and Member State Legislation (Europa Law Publishing, 2005); See also for example P.Birkinshaw, Freedom of information The Law, the Practice and the Ideal, (Cambridge, 2010) 29, 118–120.

281 For case-law, see for example Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634 and Case C-353/99 P Council of the European Union v Heidi Hautala, ECLI:EU:C:2001:661. Also, it should be noted that according to Aarhus Regulation (1367/2006), the objective of the Regulation is to guarantee the right of public access to environmental information received or produced […] Thus the vocabulary adopted in the Aarhus Regulation differs from the Transparency Regulation.

282 Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents (OJ L 145, 31.5.2001, p. 43–48), Article 3(1).

elements can be identified; first, the content, second, the medium and third, the matter. While the content and the matter are quite multilateral elements and they need to be examined in more detail, the third element, namely medium, seems more clear. Therefore, this section will first elaborate the notion of medium and thereafter the two other elements of document; concept and matter.

2.1 MEDIUM

It is quite clearly spelled out in Article 3 of the Transparency Regulation that the medium is not be considered when assessing whether some data forms a document.

Regardless of this rather clear provision, the question has also been tried before the Court of Justice of the European Union. And the Court has confirmed that medium is insignificant when assessing whether data can be a document.²⁸³

However, this question is twofold. On the one hand, the medium can be considered the data itself and on the other hand, it can be seen as the base that the information is saved on. These elements might share some features, but they should be considered separately to draw the line between the information and the base it is attached to. As for the first point, the Court of Justice has clarified that for example audiotapes are documents.²⁸⁴ Furthermore, the General Court has specified that the definition covers also CDs, videotapes etc.²⁸⁵ Besides moving pictures and voice, the General Court has confirmed that information in a database is also a document. However, the General Court did not reflect on the question whether the database as such could be considered a document.²⁸⁶

2.2 CONTENT

Once it has been established that the right of access covers the information in the documents regardless of the medium, the next step is to assess whether all information should be considered a document. While it is relatively easy to state that medium is indifferent when assessing whether the requested data forms a document, the question of content is more challenging.

How to define what constitutes the content of a document is a fundamental question from many perspectives. If all information were to be considered a

283 See for example Case T-121/05, Borax Europe v Commission, ECLI:EU:T:2009:64; Case T-166/05, Borax Europe Ltd. v Commission, ECLI:EU:T:2009:65.

284 Case T-121/05, Borax Europe v Commission, ECLI:EU:T:2009:64; Case T-166/05, Borax Europe Ltd. v Commission, ECLI:EU:T:2009:65.

285 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, para 90.

286 Ibid., paras 125, 164.

document, the applicant could request, for example, some information from a databank, like a series of numbers or personal data based on his or her right of access to documents. This is a highly relevant question, in particular regarding the relation of personal data and access to documents. So far, the tension between access to document and data protection legislation has concretized in situations where the applicant has requested a document containing personal data, or certain personal data which has been a part of a document, not purely personal data which could, for example, be retrieved from databanks.

The right of partial access to documents which stems from the Hautala²⁸⁷ case, and was later incorporated into the Union legislation, renders the difference between the concepts of information and document nearly insignificant.²⁸⁸ It has been argued, however, that information should form a understandable entity, or be understandable to be considered a document.²⁸⁹ The interpretation of the highest authority, the Court of Justice of the European Union, is still missing. However, the General Court did assess and elaborate this question in the Dufour case. The General Court elaborated the elements for defining document in a context where access had been requested to European Central Bank documents.²⁹⁰

The General Court adopted a very broad approach regarding the definition of a document. It first concluded “that a document […] may be a book of several hundred pages or a ‘piece of paper’ (to borrow the term used by the ECB in an argument summarised in paragraph 70 above) containing a single word or figure, such as a name or telephone number. Similarly, a document may consist not only of text, as in the case of a letter or memorandum, but also a picture, catalogue or list, such as a telephone directory, a price list or a list of spare parts”. The General Court went further by stating that “as has already been noted […], the terms used in that definition necessarily imply that even content of minuscule proportions, such as a single word or figure, is, if it is stored (for example, if it is written on a piece of paper), sufficient to constitute a document”. And even more importantly, it stated “it is clear […] that a literal interpretation of the definition of the term

287 Case C-353/99 P Council of the European Union v Heidi Hautala, ECLI:EU:C:2001:661.

288 The case T-264/04 World Wildlife Fund EEP v EU Council has been interpreted by some as General Court taking a stand of the definition of document [A. Bicarregui “Rights of Access under European Union Law”

in Coppel (ed.) Information Rights, Law and Practice, (Oxford, 2010), 102]. However, it seems like this reference to the General Court holding that the Regulation “applies to information generally and not only simply to documents” is incorrectly interpreted as the Court’s statement when it actually was the conclusion of parties’ arguments. Also, the case relates the relationship of Aarhus Regulation and Regulation 1049/2001 and as earlier noted, the Aarhus Regulation governs access to information when Regulation 1049/2001 covers access to documents.

289 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 112, 114, 115–117.

290 Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB 2004/3)(2004/258/EC) (OJ 2004 L 80, p. 42). The definition of a document is similar with the Transparency Regulation and the recitals of the said decision refer to the Transparency Regulation. See in particular case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 54–55, 66, 68, 80, 106, 119, 121, 123, 157–159, 162, 164, 166.

‘document’ […] leads to the conclusion that the entirety of the data contained in a database constitutes a document within the meaning of that provision and that no considerations of a practical nature, and none of the various documents to which the parties refer, can call that conclusion into question”.²⁹¹ In other words, all information in the databanks is to be considered a document. The General Court did not take the view that, for example, the entity which the information forms could be of relevance when assessing what constitutes a document.²⁹² The approach adopted by the General Court follows the direction established by earlier case-law and Union legislation, drawing strong parallels between information and document. The General Court concluded that separate words, lists, catalogues or for example figures can be considered a document. The General Court underlined that, for example, length cannot be considered relevant when assessing whether the information at hand is to be considered a document.²⁹³ Consequently one name or a set of names could be considered a document in the meaning of the Transparency Regulation.

Another interesting and relevant point, which the General Court considered in its judgment was how to assess whether the applicant had requested information where its disclosure would require the institution to create a new document. This is an interesting point, particularly because it has often been argued – and also confirmed by the General Court – that an institution does not have an obligation to create a new document for the applicant.²⁹⁴ The General Court first clarified that such information, which is not saved on any base, does not constitute a document.

An example of such information would be discussions in a meeting, which all the participants would indeed remember but which has not been recorded. In other words, the civil servants would not be obliged to present this information as a document.²⁹⁵ Secondly, the General Court set out the rather evident point that a document which is removed or deleted from the database is not to be considered a document in the meaning of the Transparency Regulation.²⁹⁶ This is the case even when those documents could somehow be retrieved from the database.²⁹⁷

291 Ibid., paras 94, 108, 125, 164.

292 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 94, 108, 164. For the coherence of the information see for example Government bill for the Public Access to Document Law HE 30/1998 vp, p. 19,53,73 and 82 (Finland, laki viranomaisen toiminnan julkisuudesta 21.5.1999/621).

293 Ibid., paras 91, 93, 94.

294 See for example Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 73, 149. See also case C-491/15 P, Typke v European Commission, ECLI:EU:C:2017:5, para 37.

295 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 88–89, 126–127.

296 The reference was to the Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB 2004/3)(2004/258/EC) (OJ 2004 L 80, p. 42). See what has been said earlier of the similar interpretation of this decision and Transparency Regulation.

297 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 128–130.

In other words, the applicant cannot expect that an institution takes up the aforesaid measures. Thus, an institution cannot be expected to create a new document which corresponds to the needs of an applicant. However, the institution has certain level of responsibility to assist the applicant.²⁹⁸ As the Republic of Finland submitted in the Dufour case, the term document “also includes any combination of data in a database that can be produced using the tools for that database. The fact that such a search, although possible, is not carried out by the institution in question as part of its day-to-day activities is, in that regard, irrelevant”.²⁹⁹ The Kingdom of Denmark took a similar approach and the General Court confirmed this view in its decision.³⁰⁰

The aforementioned measures could be described as gathering information.

Thus, the institution is not required to create a new document, but simply put together the information it already has. This would be the case, for example, when an institution has the information an applicant is requesting, but it was dispersed in different registers and data banks. If the information could be retrieved from the data banks by using normal search functions, the current “non-existence” of a document should not be accepted as grounds for non-disclosure of the information.

Another interesting element, which the General Court clarified in its judgment was that the permanent nature of the information is insignificant. Thus, the constantly changing content of a database would not be an obstacle to consider the information a document. The content of the database should be assessed according to the date of the request.³⁰¹

The General Court’s approach is justified. First, even if it might at first seem quite far-reaching to consider all information a document regardless of size or coherence, the institution that examines the application cannot know what might be relevant information for the applicant. Thus, if none of the exceptions would be applicable in the said case, access should not be refused based on irrelevance of the information.³⁰² Second, the requirement set for the institution to gather information which already exists seems more than reasonable. Data filing systems are constantly developing.

If fragmented information was to be excluded from the scope of the Transparency Regulation, it could lead to a situation where a vast amount of information was dispersed in different databanks and therefore unreachable in the meaning of the Transparency Regulation. The General Court found a fair balance between the applicant’s right to receive information and the institution’s administrative burden.

298 See for example Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents (OJ L 145, 31.5.2001, p. 43–48), Article 6(2)–(3).

299 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, para 63.

300 Ibid., paras 59 and 153.

301 Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, para 130.

302 See also Case T-436/09, Julien Dufour v European Central Bank, ECLI:EU:T:2011:634, paras 111, 112, 115.

2.3 MATTER

The two first components of the document were medium and content. The third element is closely related to content, but instead of the form of the content, the third element draws from the substance of the content.

The third element in Article 3 limits the scope of a document to those matters which concern the policies, activities and decisions falling within the institution’s sphere of responsibility.³⁰³ This would basically exclude the personal communication of civil servants from the scope. However, it would not automatically exclude, for example, all e-mails exchanged between civil servants. Provided that these e-mails relate to policies etc. falling within the institution’s sphere of responsibility, they would indeed be documents in the meaning of Article 3 of the Transparency Regulation.