REQUESTS FOR DOCUMENTS

This section will address two main elements of requests for public access to documents. The first element relates to the notion of an applicant, in other words the question of who can file an application for public access to documents. The elaboration of this notion will be followed by the question of whether an applicant should state reasons for the request. The latter topic is particularly important in the context of data protection.

3.1 APPLICANT

Any citizen of the Union and any natural or legal person residing in a Member State is entitled to access to documents of the institutions. This follows from the Charter of the Fundamental Rights and is also clearly stipulated in the Transparency Regulation.³⁰⁴ Even if the Charter limits the access right to Union citizen and to those who are permanently staying in the Union, the institutions have adopted a wider approach.³⁰⁵ The wider approach derives at least partly from the possibility to make

303 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.

304 Article 42 of the Charter of Fundamental Rights; Article 2(1) of Regulation 1049/2001.

305 See for example Report from the Commission on the application in 2015 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, ANNEX 1, Brussels,

an application for access to documents anonymously.³⁰⁶ When access to documents is applied for anonymously, the identity of the applicant cannot be verified. Hence, it has been a very practical approach to waive the narrow interpretation of Article 2(1) of the Regulation and broaden the scope of applicants. Also, this seems to be entirely in line with the underlying principle of the Transparency Regulation aiming to guarantee the widest possible access to documents.

The Commission has proposed enlarging the scope of beneficiaries to any natural or legal person in its proposal for the Regulation on access to documents.³⁰⁷ This proposal broadening transparency vis-à-vis current legislation might be prejudiced by the inadequate legal basis.³⁰⁸ Even if the current practice allows wider access to documents than required by the secondary legislation, the primary legislation limits the beneficiaries to the citizen of the Union, and to any natural or legal person residing, or having its registered office in, a Member State.³⁰⁹

If the strict interpretation is adopted, the applicant should have some connection to the European Union, be it either citizenship or permanent residence in the European Union. Thus, non-citizens residing outside of the European Union would not have the right of access to documents. For example, an Australian living in the United States would not be entitled to information held by the EU institutions.

3.2 STATING REASONS FOR THE APPLICATION

One of the core elements of public access to documents legislation in the European Union legal framework has been the equal treatment of applications regardless of the origin of the application. This feature follows from the idea of public access to documents. The situation is slightly different in the other main European institution, namely in the Council of Europe. The case-law of the European Court of Human Rights indicates that access is granted to official documents and for individual

24.8.2016, COM(2016) 533 final, p. 7, available on the internet < http://eur-lex.europa.eu/resource.

html?uri=cellar:3a0be84b-69fd-11e6-9b08-01aa75ed71a1.0003.02/DOC_2&format=PDF > [last visited 5.3.2017].

306 See article 6(1) of the 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).

307 Commission Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents COM(2008) 229 final (30.4.2008).

308 The settled case-law of the Court of Justice does allow though that secondary measures are adopted based on the primary legal basis of an act, or when necessary, see Case C-211/01, Commission v Council, ECLI:EU:C:2003:452, paras 38–40 and case C-178/03, Commission v Parliament and Council, ECLI:EU:C:2006:4, para 43.

309 During the past years, the EU body has asked the requester’s postal address in some cases. See for example AsktheEU.org, available on the internet <https://www.asktheeu.org/en/help/privacy> [last visited 19.8.2018].

applicants rather than public access to documents.³¹⁰ The Convention negotiated in the framework of the Council of Europe sets as a principle access to public documents.³¹¹

At first sight, this difference might seem minor. However, it leads to significant differences in the application of the rules. When access is granted to the public, the information of the applicant becomes irrelevant. As previously noted, the documents can be requested anonymously. That is, the identity of the applicant does not play a role when assessing whether the document should be disclosed. Also, the settled practice of the Council is indeed to disclose all documents on the internet, if access has been granted to one applicant.³¹²

Quite interestingly, when placing this feature of European access to document legislation into the Dworkinian theory of rights and principles, the separation of individual aims and collective aims seems to play a role.³¹³ When application can be filed anonymously and even more importantly, the identity of an applicant is insignificant, the right of an individual seems to approach the features of collective right. Furthermore, the right of access to documents is precisely defined as the public’s right.³¹⁴ Now, if the right was considered collective instead of individual, it would be based on policies instead of principles and in a Dworkinian world could not collide with rights based on principles.³¹⁵ Policies always weigh less and as such, principles trump policies regardless of the circumstances of the case.³¹⁶ Regardless of the rather abstract features of the right of access, it does take the form of an individual right, in other words as concrete right. The one exercising the right of access to documents is always a natural person, or legal person. It follows that the right of access to documents is concretized in the form of an individual right in each case. It differs in this respect from democracy, for example. The difference between aims and objectives and principles will be further developed and examined in the concluding chapter. At this stage it suffices to say that regardless of the described characteristics, the right of access to documents is considered a right based on principles in this thesis.

310 See for example ECtHR 2 November 2010, Gillberg v Sweden; ECtHR 7 July 1989, Gaskin v the United Kingdom;

ECtHR 14 February 2006, Turek v Slovakia, (2006–II); ECtHR 19 February 1998, Guerra and Others v Italy.

311 Council of Europe Convention on Access to Official Documents, (ETS No 205).

312 For Council’s erga omnes practice, see B. Driessen, Transparency in EU Institutional Law: A Practitioner’s Handbook, (Kluwer 2012) 44.

313 For individual and collective rights, see R. Dworkin, Taking Rights Seriously, (London, 2009) 90–100.

314 On freedom to receive information, see for example R. Gisbert, The Right to Freedom of expression in a democratic Society, in Roca & Santolaya (ed.) Europe of Rights: A Compendium of the European Convention of Human Rights, (Leiden, 2012) 386.

315 See Chapter I section1.2. See in particular R. Dworkin, Taking Rights Seriously, (London, 1977) 90–122; R.

Dworkin, Rights as Trumps, in Waldron (ed.) Theories of Rights, (Oxford, 1984), 153–167.

316 Ibid.

The question of the applicant’s identity becomes interesting when it is assessed in the context of stating reasons for an application – or to be more precise, in the context of not being obliged to state reasons for an application. Article 6 of the Transparency Regulation stipulates that the applicant is not obliged to state reasons for the application.³¹⁷

The Council legal service’s interpretation of the said provision together with the element of public access to documents has been that the Council must abstain from taking into consideration individual reasons presented by the applicant. This is the case when, for example, an academic has filed a request for documents. The personal interests of the applicant have not been considered.³¹⁸ Still in 2009, this approach seemed justified based on the case-law together with the existing legislation. At that stage there did not seem to be reasons to adopt a different approach.

At this stage it is important to note that the specific interest of the applicant does not necessarily equal the reasoning of an application. Application can, of course, also be justified in more general terms. This would be the case if the information was necessary for example for the protection of the environment. This question is also linked with the question of the existence of an overriding public interest, which will be examined later in this chapter.³¹⁹

While the right to file a request for a document anonymously is an important element of the Transparency Regulation, it does not necessarily belong at the hard core of the said right. While the legal framework created in the Council of Europe also sets weight on the right not to state reasons, the European Court of Human Rights has often assessed the right of access to documents precisely through some specific interest the applicant has in the case.³²⁰

Public access to documents in the European Union should rather be understood as wide access to official documents instead of party access to these documents. Party access would always relate to a certain situation and circumstances while simple

317 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).

318 Case C-266/05 P, Sison v Council, ECLI:EU:C:2007:75, para 43; B. Driessen, Transparency in EU Institutional Law: A Practitioner’s Handbook, (Kluwer 2012) 45,70; B. Driessen, “The Council of the European Union and access to documents” in European Law Review 30 (2005), 690.

319 For reasoning on general terms, see Case T-115/13, Dennekamp v Parliament, ECLI:EU:T:2015:497, para 68.

320 Council of Europe Convention on Access to Official Documents lays down following conditions for requesting the access in its Article 4:

1. An applicant for an official document shall not be obliged to give reasons for having access to the official document.

2. Parties may give applicants the right to remain anonymous except when disclosure of identity is essential in order to process the request.

3. Formalities for requests shall not exceed what is essential in order to process the request.

For the case-law, see ECtHR 2 November 2010, Gillberg v Sweden; ECtHR 7 July 1989, Gaskin v the United Kingdom;

ECtHR 14 February 2006, Turek v Slovakia, (2006–II); ECtHR 19 February 1998, Guerra and Others v Italy.

access to documents could relate to a wider range of situations, even if the specific interests of the applicant are taken into account. Thus, when assessing whether to disclose documents, the weight should rather be in granting the widest possible access to information, not in disclosing the documents to the public as a whole.

This should be the approach in particular in such cases, where the interpretation of public access to documents would actually limit access to documents.