Kraetzig, Viktoria

Marti, Neus Vidal

English

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1/6Why Europe Needs a Harmonised Access to InformationActverfassungsblog.de/why-europe-needs-a-harmonised-access-to-information-act/Neus Vidal MartiViktoria Kraetzig03 May 2024May the 3rd marks press freedom day around the world. Today, many articles and editorialswill be published across Europe, highlighting the need to put an end to threats faced byjournalists in Member States such as reporters being attacked by protestors while coveringdemonstrations or media outlets being sued by powerful individuals to prevent them frominvestigating them. While all these pan-European threats certainly need to be tackled – infact the European Commission has recently addressed them via the Recommendation onthe Safety of Journalists and the Anti-SLAPP Directive – one fundamental pan-Europeancrisis faced by journalists across the continent remains widely ignored: the difficulties toaccess information held by public authorities and the disparities among Member States whenrequesting data.This article aims to review the current situation of the right to request information from publicbodies in EU Member States and offers a proposal that opens the door to discussing thepossibility of harmonising such a right through the internal market competence. This is nowmore important than ever in the digital society we live in since, despite many benefits, therise of digitisation can also bring dangers to democratic processes in Europe. Externalinterference by foreign powers can easily be done through targeted content on social mediaand online, with rising fake content serving antidemocratic interests being disseminated toEuropean citizens on a daily basis. Arguably, that makes the need to harmonise andstrengthen access to verified information held by public authorities even more important,since reliable official information can act as a counterbalance to dubious and one-sided fakeinformation.The right to request information in EuropeThe right to request information in possession of public bodies in Europe was first recognisedby Nordic countries, and has been eventually followed by the majority of states in thecontinent. More recently, Austria has passed a new law on Access to Information (hereafter“ATI”) while Germany still has to wait for its new federal transparency law, which was2/6promised by the coalition government but has not been presented yet. ATI laws give alljournalists and – most importantly – all citizens, a legal tool to know what their governmentsand representatives are doing and how taxpayer’s money is spent. However, while broadlysimilar, each national law has different characteristics, from different time frames to reply torequests, to different exemptions to deny access or different appeal mechanisms. Even moreimportant, the implementation of the law and how the law works in practice is not necessarilylinked to the strength of the legal text, since political culture and a pro-transparencyindependent judiciary play an important role when predicting the outcome of requests forinformation. Strikingly, there is no database that systematically tracks the implementation ofATI Laws across the Union, but there is plenty of evidence that clearly indicates thatdisparities in the application of the law are creating inequality amongst European citizens:some information that can be requested from public authorities in one Member State caneasily be denied when requested in a neighboring country.In Spain, the Medicines Agency took the media outlet Maldita to Court over a resolution bythe Transparency Council that stated that the agency had to release information requestedby the outlet regarding agreements between the Spanish Government and other countries toresell or donate Covid-19 vaccines (the Court eventually ruled in favour of the outlet). InGreece, the government refused to grant a request by NGO Vouliwatch to accessinformation about a media advertising campaign by the executive and the distribution ofpublic funds, which was clearly in the public interest. In Malta, the Shift News requestedinformation about contracts and payments between public entities and Malta Today co-ownerSaviour Balzan. The Information and Data Protection Commissioner ordered the disclosureof documents, but 30 public entities refused to oblige and challenged the decision at theAppeals Tribunal, forcing the media outlet to embark in a hugely time and resource-consuming process. In Germany, the Berlin-Brandenburg Higher Administrative Court ruledagainst Tagesspiegel and held that the chancellery didn’t have to disclose off-the-recordconversations between Angela Merkel and journalists on topics such as the refugee crisis orhow to work with the far-right AfD party. The court did so after 5 years on the grounds thatthe government had changed since the case had been filed. And, to be fair, the EuropeanUnion itself does not necessarily fair better in this regard as Päivi Leino-Sandberg’s well-documented quest for background information on the EU’s big Covid-relief measure shows(see here, here, only upon involvement of the Ombudsman and the General Courtsomematerial was eventually released, see here).Now or never: Momentum for HarmonisationAs the aforementioned cases have shown, citizens face enormous challenges whenattempting to access information held by public authorities in the European Union. This isextremely worrying in an age of disinformation, misinformation and AI-created content whichthreatens to affect democratic processes, including the important EU elections that will takeplace in June. How are public authorities spending taxpayer’s money? Who have members3/6of the government met before drafting a new law?  ATI laws in Europe should be useful toolsto answer all these questions and allow citizens to hold authorities accountable. It is clearthat the current fragmentation of legislation is not working properly to defend the right to seekinformation by European citizens. Accessing information is essential to contribute to thepublic discourse and to take part in decision-making processes and elections, and thereforeshould be one of the most protected democratic European values. Hence, harmonisation ofthe right to access information in the European Union should be on the table – now morethan ever before.European institutions have already stated that some rights and freedoms such as mediafreedom must be protected and the best way to enshrine them is to establish commonstandards via harmonisation – as done with the European Media Freedom Act (EMFA).Arguably, the right to access information from public authorities across Europe could bedefined as an even more important right to protect and to be harmonised, since it affectsevery aspect of what the Union stands for, from democratic values to fair competition.This is even more relevant taking into account the role that digital information plays indemocratic processes. States are now recording a huge amount of information that can beeasily tracked digitally, greatly reducing the time and resources that would have been spentlocating documents just 10 years ago. Additionally, most communications between publicrepresentatives are now automatically recorded, since they take place in written form viaemail or text message.On that note, it is important to flag one of the biggest ATI conundrums of the last years since,while electronic communications are easy to track, they are also easy to delete. There canbe no doubt that electronic communications between democratically elected representativesand interested actors (such as lobbyists and private companies) must fall under the scope ofATI Laws, but this is actually not recognised by all legal texts or public authorities. One of themost notorious recent cases dealing with this topic is the one involving the text messagesbetween European Commission President Ursula von der Leyen and Pfizer’s CEO AlbertBourla regarding the purchase of Covid vaccines. In 2023, the New York Times took theEuropean Commission to the European Court of Justice for their refusal to publish theaforementioned texts. The petition, initially sent by journalist Alex Fanta, was supported bythe European Ombudsman.These new circumstances in the digital age not only call for a reform of ATI laws in MemberStates, but also for an important step at the EU level: a European Acces to Information Act,since it is clear that no democracy will be able to endure in the digital age withouttransparency and accurate information.Disparities in ATI law as an obstacle to the internal market4/6Reasons for the need to establish a harmonised ATI Law have already been laid out, and thefollowing paragraphs will develop a first proposal on how to do it.  If the European MediaFreedom Act (EMFA) can be based on the internal market competence of Art. 114 TFEU(critical see Kraetzig), an EU harmonisation of ATI Law can as well. With the EMFA, theCommission tackled issues hindering the provision of media services in the internal mediamarket on the basis of Art. 114 TFEU. The fragmentation of Access to Information law in theEU (EUI, Media Pluralism Monitor 2023, page 29 et seq.) is an obstacle for the internalmedia market. Why has it not been harmonised yet with the EMFA? What should have beendone in the past must now be dealt with – we need harmonisation of ATI Law in the EU (onthis see Alemanno).To start with, the internal media market is hindered when journalists are not able to accessgovernment information in all Member States due to divergent legal regimes. If journalists insome domestic jurisdictions cannot access information while others can, such unequalaccess may create inequalities within the Community as regards conditions of competition –regarding public access to environmental information, Directive 2003/4/EC addresses suchdisparities in national laws (see its Recital 7). Moreover, cross-border investigations aremade considerably more difficult or even impossible. Member States have their own rules onATI with divergent exception provisions. Implementation and enforcement of the law alsodiffers greatly. In Germany, for example, copyright has been a welcome defense against ATI(on the grounds of Section 6 Freedom of Information Act). It can be because the thresholdfor copyright protection is set so low that copyrights bars even reports written by civilservants based on templates from external access (German Federal Court of Justice, I ZR139/15 – Afghanistan Papiere; on copyright as  rule of law challenge, see Kraetzig).Unfortunately, not every applicant for information is a copyright expert and can oppose suchpractice (luckily, Frag den Staat could!) nor will they have the financial resources to go tocourt. In Hungary, in some cases lawyers do not even know the concrete legal basis whenthe state denies ATI – in court, they have to fight for ATI litigation-blind. However,harmonised rules on ATI would also benefit the internal market beyond the media market:administrative transparency does foster the free movement of capital in the internal marketas the CJEU has repeatedly pointed out (Alemanno). Taking into account the principles ofsubsidiarity and proportionality, probably a directive with minimum standards for ATI law withthe adoption of the lowest common denominator would be the appropriate measure. As thelines between directives and regulations are becoming more and more blurred anyway, itcould also become a regulation.Setting standards for a European Access to Information ActNow is the time to identify which specific ATI instruments are suitable to set minimalstandards at the EU level. One of the most relevant attempts at unifying criteria in Europe isthe Council of Europe Convention on Access to Official Documents – known as the TromsøConvention 2009 – which has only been ratified by 7 EU Member States. While the5/6Convention is a useful tool, the current digital age needs to establish further requirements.Therefore, a European Access to Information Act should follow international standards andaddress the following points:Establishing a common definition of public authorities that allows all European citizensto have an equal right to access information regardless of the Member State theyreside in.For the right of access to also cover digital communication, a broad definition of“information” would have to be used. It is not the means of communication that matters,but the content. If politicians use a mobile phone to make policy, they must disclose theinformation on their phone.Ensuring that applicants can freely request information without disclosing unnecessarypersonal data and without having to motivate the request. The Act should ensure thataccessing information held by public authorities is free of charge and available for allcitizens to avoid disparities amongst states that charge and those who do not.Requests should always be answered by the competent public authority and no answershould not be considered a rejection of the request.Establish an independent body that can review cases such as an InformationCommissioner, Ombudsman or Transparency Council.Establish clear procedural rules, including harmonising time frames to reply torequests.Exceptions to the right to access information should be harmonised, clearly definedand always motivated. They should be subject to a review process or appealprocedure. Exemptions must be designed in such a way that they strike a fair balancebetween the interests of access to information and the interests of third parties. Inparticular, the state should no longer be able to refuse access to information on thegrounds of copyright if its civil servants have authored the requested documents, asseen in Germany.This list aims to put forward a first proposal of minimum standards that should be taken intoaccount when discussing the possible harmonisation of ATI in the EU, but by no meansintends to be an exhaustive list of all stipulations that could potentially be included in such atext. The need for transparency is now extremely high, and the new European political cyclethat will emerge after the June election should ensure that improving the access toinformation held by public authorities becomes a political priority that will help strengthenEuropean democracy.6/6LICENSED UNDER CC BY-SA 4.0EXPORT METADATASUGGESTED CITATION  Vidal Marti, Neus; Kraetzig, Viktoria: Why Europe Needs aHarmonised Access to Information Act, VerfBlog, 2024/5/03, https://verfassungsblog.de/why-europe-needs-a-harmonised-access-to-information-act/, DOI: 10.59704/ef33ec3f6449ae88.Explore posts related to this: Other posts about this region: EuropaLICENSED UNDER CC BY-SA 4.0

Why Europe Needs a Harmonised Access to Information Act

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Why Europe Needs a Harmonised Access to Information Act

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