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20 years of public access to EU documents: time for makeover?

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This year marks the 20th anniversary of the coming into force of the EU ‘transparency law’ (officially, Regulation 1049/2001), a move which gave concrete expression to the right of public access to EU documents and significantly increased the accountability of the EU administration.

Two decades on and the practice of requesting public access to documents is now well established, used by investigative media, by interest groups and civil society activists, by businesses both big and small, and, not least, by citizens themselves.

As European Ombudsman, I serve as a redress mechanism for those denied access to EU documents, enabling me to see first-hand the benefits but also the shortcomings of the regulation.

One such shortcoming is that this cornerstone of EU transparency comes from a radically different era, predating many modern communications tools, such as smartphones and instant messaging, and the emergence of big data.

The law therefore needs to match today’s reality while maintaining its core strengths. It also needs to align more closely with the citizen rights enshrined in the Lisbon Treaty, encourage greater proactive transparency and take account of important transparency case law.

This is an issue of good governance. It is about keeping public institutions accountable throughout the entire chain of EU decision making. Whether it is about vaccines procurement, the EU recovery funds or legislative decision making in the Council, this transparency law is crucial for European citizens’ rights.

Time for a makeover?

So what needs revision? Unlike the practice in some member states, the EU guarantees the right of access to “documents”, not “information” and this is a critical distinction. If no document about an issue exists, information is denied.

My inquiries show that the institutions struggle to adapt their recording and disclosure obligations to the realities of modern communication tools, as they become increasingly used throughout the administration.

It may therefore be time for the EU legislators to give this aspect of Regulation 1049/2001 a makeover. In the meantime, I have launched an initiative to map the practices in the EU administration concerning the recording of instant messaging as used for professional purposes.

Greater transparency

The EU Courts continue to encourage greater transparency by the EU institutions, particularly in relation to documents concerning law making. This is not just in the public interest, but it is also in the interest of the institutions themselves, strengthening the legitimacy of the EU legislative process.

As ombudsman, I have emphasised this issue in recent years, and have been supported by the European Parliament, by many national parliaments and by civil society groups. It remains a work in progress.

In one important case, the court found that the Council of the EU should have recorded proposed amendments to legislation by member state delegations in the context of council legislative negotiations.

Greater transparency in this area would, I believe, help to tackle the ‘blame Brussels’ culture allowing more citizens to realise that it is their own governments who decide legislation in Brussels and not some ‘faceless bureaucracy’.

Speeding up access requests

At a technical level, the two-step procedure set out in law for requesting access to documents, combined with the timelines involved, can be cumbersome and slow, taking at times months to process.

My office has sped up our own work on access to document complaints, introducing a ‘fast-track procedure’ in 2018. The average time to complete a case is now one third of what it previously was.

Despite this, it is clear that many of those seeking access to documents face delays that undermine their ability to use the documents they want to consult. Access delayed is access denied, and the EU institutions should be more sensitive to this experience of citizens.

Strengthening redress

Where individuals seeking access to documents are frustrated in their efforts, they may turn to the court, but this can be time consuming and prohibitively costly. The European Ombudsman is therefore a more accessible redress mechanism for citizens.

My office has the power to inspect the documents at issue. Where I find an institution was not justified in withholding access, I may make a solution proposal during an inquiry, encouraging the institution swiftly to resolve the matter by disclosing, partially or fully, the documents requested.

When an institution insists on withholding access, I can make a formal finding of maladministration and a recommendation that the institution disclose the documents.

While compliance with my recommendations is high, there are cases where some institutions or agencies have not responded positively.

Ultimately, the institution itself remains the gatekeeper of documents it holds. In some member states, the independent and accessible ‘information commissioner’ bodies work well, and this is something on which EU legislators may wish to reflect.

Beyond 20?

Regulation 1049/2001 has been a very positive development in EU transparency and ultimately accountability but 20 years on, it is worth reflecting on how it can be improved and future-proofed.

Modern communication and working methods, the timeline for accessing documents and strengthening redress are all things that could serve further to improve this vital tool for ensuring the accountability of the EU institutions.

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Belgium goes into three-week ‘lockdown light’

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Belgium is to go into a three-week ‘lockdown light’, following a meeting of federal and regional governments on Friday (26 November).

“We have to admit that we have been ambushed by the virus and that the situation is much more serious than we saw a few weeks ago”, Belgian prime minister Alexander De Croo told a lunchtime press conference.

De Croo added that “the pressure on our hospitals is seriously increasing and that the situation is not tenable. We have to action now.”

The Belgian concertation committee of federal and regional governments decided that social life will be restricted in a variety of ways for the next three weeks.

Nightclubs will be closed, and indoor concerts where people are not seated will be cancelled. This measure will go into effect on Monday (29 November).

Bars, restaurants and night-shops will need to close their doors at 11PM. The number of people on one table in restaurants will be restricted to six, except for families larger than six. These measures will go into effect on Saturday (27 November).

Private parties will be forbidden, with an exception for weddings and funerals. However, it is still allowed to have guests at home.

At work and school, on the other hand, there are no upgraded restrictions. The last committee decided that teleworking is mandatory four days a week, and that people can only go to the office one day a week.

Schools will remain open, as will universities.

De Croo reiterated that these “measures will only makes sense if everyone follows them.”

The committee decided to accelerate the vaccination campaign. Regional governments will organise test centres where people can get tested for free.

The committee decided to meet urgently after hospitals and doctors said they could no longer handle the situation. From 16 to 22 November, on average 16,100 people tested positive for Covid daily. On 22 November that number was already 25,365 .

Currently, 669 intensive-care beds are filled with Covid patients, well over the emergency threshold of 500, and in the worst-case scenario, 1,250 intensive-care beds, a maximum capacity, would be filled by Christmas.

Belgium has not been able to organise roll-out of the booster jab in time to prevent the fourth wave. De Croo announced that on Saturday (27 November) a plan will be made to accelerate the booster jab for every adult.

Before the Belgian governments met, European Commission president Ursula von der Leyen announced the bloc will take the initiative to block all air travels from Southern Africa, where a new variant of Covid-19 has been found.

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Interpol’s president: alleged torturer rises as symbol of UAE soft power | Global development

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Maj Gen Ahmed Nasser al-Raisi’s ascent through the ranks of the interior ministry in Abu Dhabi is associated with the United Arab Emirates’ transformation into a hi-tech surveillance state.

His personal achievements include a diploma in police management from the University of Cambridge, a doctorate in policing, security and community safety from London Metropolitan University and a medal of honour from Italy.

Now, in a big soft-power win for the UAE and its attempt to legitimise its policing methods internationally, he has been elected the president of the global policing organisation Interpol – to the dismay of human rights defenders.

Often photographed smiling, Raisi is the longstanding inspector general for the interior ministry, responsible for the supervision of detention centres and policing. Multiple former detainees accuse him of using this position to green-light abuses, including torture.

“Raisi’s rise to the Interpol presidency legitimises the role and conduct of security forces in the UAE,” said Matthew Hedges, a British academic and expert on the Emirates who was detained there for seven months on espionage charges. Hedges, who was eventually pardoned, says Raisi was responsible for his arrest and also oversaw the torture he says he suffered in detention.

“This translates to a green light for states to continue acting in a way that abuses accountability and human rights, legitimises the dilution of rule of law and emboldens authoritative and abusive systems of detention,” Hedges said. “This is really a warning to the international community that cross-border abuses can and will occur.”

The Gulf state has previously said Hedges was not subjected to any physical or psychological mistreatment during his detention. On Thursday its interior ministry heralded Raisi’s win as “recognition of the vital role of the UAE all over the world”.

“The UAE,” it said, “is now at the helm of this international organisation working in the fields of security and policing and will do its best to make the world a safer place.”

In an unusually public campaign for the role, Raisi boasted of technological transformations that overhauled policing and surveillance in the UAE. These included the introduction of iris and facial scanning technology, and the creation of the interior ministry’s first “general directorate of happiness”.

His domestic policing changes underpin Abu Dhabi and Dubai’s status as two of the world’s most surveilled cities. One system, called Falcon Eye, deploys thousands of cameras to monitor not just traffic violations but also “behavioural issues like public hygiene and incidents like people gathering in areas where they are not allowed to”, according to a report by the state news agency WAM.

The rise in surveillance has been accompanied by a crackdown on domestic criticism and dissent. Human Rights Watch has said: “The government’s pervasive domestic surveillance has led to extensive self-censorship by UAE residents and UAE-based institutions; and stonewalling, censorship, and possible surveillance of the news media by the government.”

Abdullah Alaoudh, from the Washington DC organisation Democracy for the Arab World Now, said the UAE had been applying a two-pronged approach epitomised by Raisi’s Interpol win: “Cracking down hard on every voice of dissent, while investing in public relations like lobbying, soft power, sports and entertainment.”

Christopher M Davidson, the author of a book on statecraft in the Middle East, described Raisi as an example of “high-performing technocratic members of UAE political society” who had found success under Crown Prince Mohammed bin Zayed Al Nahyan.

“The key to the regime of Mohammed bin Zayed has been to get things done, to stamp out corruption. Despite all criticisms levelled at the UAE and Abu Dhabi today, it is a far less corrupt place than it was 15 years ago. These were the people entrusted to clean up ministries,” said Davidson.

Stamping out corruption has, at times, included arresting the wealthy and critics. Khadem al-Qubaisi, a former adviser to the royal family and a businessman who said he was “scapegoated” by the Abu Dhabi authorities for embezzling millions, is detained in Al Wathba prison. The prison, overseen by Raisi, also holds the human rights defender Ahmed Mansoor.

Riyaadh Ebrahim, who spent more than a year in the prison, said he witnessed torture there. “There is wrongful imprisonment, no application of the rule of law. People are being persecuted for crimes they did not commit,” Ebrahim said. He said he was “totally appalled” by Raisi’s victory in the Interpol election race.

Davidson said the UAE was using its wealth and resources to buy reputational shortcuts on the international stage.

“Policing in the UAE still has its problems, but this is a way of saying to the world that [they] are credible and respectable,” he said. “Obtaining the presidency of Interpol symbolises moving in the right direction.”

Jalel Harchaoui from the Geneva-based organisation the Global Initiative Against Transnational Organized Crime said Raisi’s election highlighted the struggle between liberal and illiberal nations within international institutions such as Interpol, and was a victory for anti-democratic countries.

“On the surface, Abu Dhabi – thanks to excellent soft-power outreach – markets itself as a modern state, which happens to be a dependable friend to all the major western democracies,” he said. “In reality however, the Emiratis, whose governance style has been partly inspired by China’s strict form of authoritarianism, always campaign against liberalism and its key principles.”

A spokesperson for the UAE embassy in London did not respond to a request for comment.

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France reminds Poland on law in Paris meeting

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French president Emmanuel Macron urged Polish president Mateusz Morawiecki to solve a rule-of-law dispute with the EU, while voicing solidarity on the Belarus migration crisis, in a meeting in Paris on Wednesday. Poland should “find a solution that safeguards the core values of the European Union”, Macron’s office said. Russian president Vladimir Putin told EU Council president Charles Michel by phone extra EU sanctions on Belarus would be “counterproductive”.

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