New publication : D. Dragos, P. Kovač, A. Marseille (eds.), The Laws of Transparency in Action – A European Perspective (Palgrave 2018)

Transparency and freedom of information is a topic that most think they know about, but in reality it has multiple facets that cannot be gauged so easily. There are many publications giving account of the way access to public information is regulated, but not many investigate the way FOIA actually works in practice. This new book The Laws of Transparency in Action – A European Perspective, edited by D. Dragos, P. Kovac and A. Marseille endeavours exactly to do this.

Many countries in Europe have fad Freedom of information laws for a long time (Nordic countries for instance), other ones have adopted them later on (Western Europe) or have experienced with such laws only after the fall of communism (Central and Eastern European countries) while there are even examples of rather new FOIAs (UK and Germany for instance). Since 2001 the EU has also a Regulation on access to public documents. The problems that occur in the implementation of FOIAs are different due to the legal and institutional context, but nevertheless patterns of best practices and malfunctioning are comparable.

This book attempts for the first time to engage in a comparative assessment of the implementation challenges facing FOIAs in the administrative law of several European jurisdictions and at the level of the European Union. It then tries to analyze both empirically and comparatively, also for the first time, selected FOIA topics in the different administrative justice systems.

This book analyses in comparative and empirical legal perspective the main challenges that are facing the implementation of FOIAs in practice but also best practices suitable for cross-fertilization. The existing doctrine is concentrating mainly on legal provisions and not offering much in terms of practical difficulties in applying the FOIAs. The book tries to cover this gap by providing practical insights into how effective the legal provisions really prove to be.

Part I deals with EU FOIA (Bogdana Neamtu, Dacian C. Dragos) followed by Part II dedicated to national profiles of FOIAs and their implementation, in Western Europe – France (Yseult Marique, Emmanuel Slautsky), Belgium (Stef Keunen  and Steven Van Garsse), Germany (Christoph Emanuel Mueller, Bettina Engewald, Marius Herr), Netherlands (K.J. de Graaf, A.T. Marseille, H.D. Tolsma), Italy (Paola Savona, Anna Simonati), in Central and Eastern Europe – Hungary (Petra Lea Láncos), Croatia (Anamarija Musa), Slovenia (Polonca Kovač), Czech Republic (Stanislav Kadečka, Jan Brož, Lukáš Rothanzl), Serbia (Dobrosav Milovanović, Marko Davinić, Vuk Cucić), Romania (Bianca Radu, Dacian C. Dragos), and a special report on Austria (Alexander Balthasar) and Denmark (Koch, Pernille Boye et al.). In the end, Part III comprises two comparative chapters on Parties, procedure and exceptions (Dacian C. Dragos, Eliska Drapalova, A.T. Marseille) and Remedies (Polonca Kovač) respectively.

Each chapter follows a similar structure. First, the contributors looked at beneficiaries of access to information (citizens, NGOs, mass media): who seeks more often public information and which are the vectors for dissemination of that information? Which are the legal requirements and sanctions for not complying with the law on ex officio publication?  Is there a special regime for the access of mass media to the information of public interest? What about the special regime for access to environmental information based on the Aarhus convention? Are there differences from access to regular public documents? For these sections, empirical insights into the categories of persons asking for public information using secondary data have been used. The role of NGOs in promoting the right to public information among citizens and legal entities, as vectors of transparency, and, further, in litigation was also analyzed. At the other end, we analyzed the categories of entities which are bound by the law – the concept of “public authorities/bodies” and the challenges arising from such categorization, how they are organized – departments and public officials in charge with providing access to public information, their professionalization etc. Also, the administrative oversight by other public bodies was taken into consideration.

A second perspective is procedural: the request for access and the ensuing response. The research questions here looked at formalities imposed by the national law, to best practices in comparative perspective and in national administrations, taking into account the requirement of clarity and precision and solutions for dealing with it. One matter that was analyzed is the vexatious or repetitive requests and how to deal with them, as well as dealing with applications erroneously addressed to a non-competent public authority. As to the response/answer, we analyzed conditions of lawfulness, structure and mandatory content, substance and motivation. Issues of communication were also addressed alongside with the legal effects of administrative silence.

A very important issue in the analysis of FOIAs is the distinction between documents and information: should administration release documents as such or information extracted from documents? Should they be obliged to compile new documents from the existing information? The obligation to create new documents or to release information instead of a document is also related to rules for record-keeping.

A critical part of the FOIA regime is the regulation of exempted information. The tendency of keeping secrecy over administration activity is a natural one, taking into account that despite such restrictions, when the actions of public servants are more visible, so are their mistakes. An important aspect of all countries’ legal framework of providing access to public information is the restrictions or exceptions where the information is not provided to the public. The scope of the exceptions is very important, in the context of the relation with special legislations like Official Secret Acts or Acts on protection of personal data. This section of the national chapters discusses the overall approach to secrecy in a given jurisdiction and its relation to the FOIA.

A special attention is given to the non-existence of the document as an exception to freedom of access. Different approaches to the application of so-called “Glomar doctrine” (Regarding some exempted information, a public authority may refuse to confirm or deny the existence or non-existence of requested information whenever the very fact of their existence or non-existence is itself classified or can jeopardize the secrecy of the information requested). Also, we analyze in detail the practices of partial disclosure instead of refusal to disclose a document.

As to the other categories of excepted information: official/state secrets, international relations/foreign policy; defense/ national security; third party consent; the economy of the state, monetary and financial issues of the state, the national chapters assess the content of the concept, the case law and administrative practice.

The exceptions most used in refusing access are the protection of personal information and privacy; the protection of commercial interest/business secrets; the protection of decision making or formulation of public policy; the protection of ongoing proceedings and investigations, where the discussion evolves around the issue of access to final documents or decisions versus access to preparatory information.

For exceptions that are not absolute, the public interest test allows some excepted information still to be released if the institution considers that there is an overriding public interest in disclosure.

Time frames for answering the requests are also important, in terms of effectiveness. The time frames reflect a balance between three types of interests. First, there is the interest of applicants, who would like a rapid and complete disclosure, effective penalties and sanctions applied to public authorities reluctant to implement the provisions of the Freedom of Information Act. Secondly, there are public authorities, which are interested in more time for complying with requests for public information and often speculate every chance to refuse disclosure. Thirdly there are the third parties, interested in turn in the procedure of consultation before disclosure. The different legal systems try to ensure a balance between these competing interests; consequently the solutions envisaged are different and the practices also differ. All national chapters relate to the time frames and to the administrative practices on observing such time frames.

In cases where access is denied, administrative and judicial remedies (administrative appeal, Ombudsman and Information Commissioners, judicial review) help to enforce the fundamental right to information. We analyze also the role and the effect of alternative dispute resolution systems in this field. Another issue is the fees and costs of accessing information – the cost of printing, copying the information, searching and compiling the information, but also the regime of re-using public information.

The chapters are ending with an overall assessment of the effectiveness of the FOIA as regards increased public accountability, reduced corruption and trust in government in analyzed jurisdictions.

The book was kindly reviewed by renowned experts in the field:

“This is a very timely collection of essays on the law of transparency in operation. From data-driven research and the unfolding story in the European Union – where we still await a reform of Regulation 1049 – a generous coverage of national European systems and final chapters on comparative perspectives, this collection will be an essential read for those engaged in transparency and access to information. The editors have done well in bringing together such a challenging and stimulating group of essays.” (Patrick Birkinshaw, Editor of European Public Law and University of Hull, UK)

“The editors have curated an impressive body of work in this new volume. They focus not on the passage of Freedom of Information laws but the implementation of these laws—an essential aspect of transparency policy process. This volume is necessary reading for anyone looking to better understand how Freedom of Information laws work in practice in thirteen European countries.” (Suzanne Piotrowski, Rutgers University-Newark, USA)

“This book makes a very valuable contribution to the analysis of a central topic in contemporary public laws: that of access to public data, in other words of public apparatuses transparency. It seeks to evaluate the effectiveness of the related legal provisions from a “law in action” perspective, and it does so by examining thirteen internal legal systems, plus that of the European Union. … it describes the way, quite homogeneous in the whole even if secondary variations can be identified, by which our legal systems have integrated and develop this major progress of the rule of law in the public domain that transparency of public data constitutes. This is a very important book.” (Jean-Bernard Auby, Public Law Professor, Sciences Po, Paris, France, and Director, Chair Mutations de l’Action Publique et du Droit Public)

Posted by Professor Dacian Dragos (Babes Bolyai University)