Parliamentary Assembly

Draft resolution

1The Parliamentary Assembly recalls the importance of the principle of transparency, including access to information held by public authorities, for democracy and good governance in general and for the fight against corruption in particular.

2It welcomes the fact that the Council of Europe was the first intergovernmental organisation to elaborate an international legal instrument on access to information, namely the Council of Europe Convention on Access to Official Documents (CETS No. 205), whilst recalling its Opinion 270 (2008) on the draft convention in which the Assembly had encouraged the Committee of Ministers to improve the text with a view to ensuring even greater transparency. The convention still requires four ratifications in order to enter into force.

3The Assembly considers legitimate, well-defined national security interests as valid grounds for withholding information held by public authorities. At the same time, access to information forms a crucial component of national security, by enabling democratic participation, sound policy formulation and public scrutiny of State action.

4Recalling its Resolution 1838 (2011) on abuse of State secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations and its Resolution 1675 (2009) on the state of human rights in Europe: the need to eradicate impunity, the Assembly stresses the need to place reasonable limits upon the invocation of national security as grounds to restrict access to information.

5In particular, the Assembly reconfirms its position, expressed in paragraph 4 of Resolution 1838 (2011), that information concerning the responsibility of State agents who have committed serious human rights violations such as murder, enforced disappearance, torture or abduction does not deserve to be protected as secret. Such information should not be shielded from judicial or parliamentary scrutiny under the guise of “State secrecy”.

6The Assembly welcomes the adoption, on 12 June 2013, by a large assembly of experts from international organisations, civil society and academia and of national security practitioners, of the “Global Principles on National Security and the Right to Information” (“the Global Principles”), which are based on existing standards and good practices of States and international institutions. The Global Principles are designed to give guidance to legislators and relevant officials throughout the world with a view to reaching an appropriate balance between public interests both in national security and in access to information.

7The Assembly supports the Global Principles and calls on the competent authorities of all member States of the Council of Europe to take them into account in modernising their legislation and practice concerning access to information.

8The Assembly wishes to stress, in particular, the following principles:

8.1As a general rule, all information held by public authorities should be freely accessible; in addition, business enterprises, including private military and security companies, have the responsibility to disclose information in respect of situations, activities or conduct that may reasonably be expected to have an impact on the enjoyment of human rights.

8.2Exceptions from the rule of free access to information which are based on national security, or other equally important public interests such as the protection of international relations, health and safety or the environment, or on privacy interests, must be provided by law, pursue a legitimate purpose and be necessary in a democratic society.

8.3Limitations to the rule of free access to information, including the rule of the neutrality of the Internet, should be interpreted restrictively. The burden of demonstrating the legitimacy of any restriction rests with the public authority seeking to withhold information.

8.4Rules on the procedure for the classification and declassification of information and the designation of persons authorised to perform this task should be clear and publicly accessible. Information may be withheld on national security grounds for only as long as is necessary to protect a legitimate national security interest.

8.5As a safeguard against overly broad exceptions, access to information should be granted even in cases normally covered by a legitimate exception, where public interest in the information in question outweighs the authorities’ interest in keeping it secret. An overriding public interest can typically be found where the publication of the information in question would:

8.5.1make an important contribution to an ongoing public debate;

8.5.2promote public participation in political debate;

8.5.3expose serious wrongdoings, including human rights violations, other criminal offences, abuse of public office and deliberate concealment of serious wrongdoing;

8.5.4improve accountability for the running of public affairs in general and the use of public funds in particular;

8.5.5benefit public health or safety.

8.6Information about serious violations of human rights or humanitarian law should not be withheld on national security grounds in any circumstances.

8.7A person who discloses wrongdoings in the public interest (whistle-blower) should be protected from any type of retaliation, provided he or she acted in good faith and followed applicable procedures.

8.8Requests for access to information should be dealt with in a reasonable time. Decisions to refuse access should be duly motivated, open to appeal before an independent body and ultimately subject to judicial review. Upon receipt of a request for information, a public authority should in principle confirm or deny whether it holds the requested information.

8.9Public oversight bodies in charge of overseeing the activities of the security services should be independent from the executive and have relevant expertise, robust powers of investigation and full access to protected information.

9The Assembly calls on all the member States of the Council of Europe which have not yet done so to sign and ratify the Council of Europe Convention on Access to Official Documents and to implement and, in due course, further improve the convention in the spirit of the Global Principles.

Draft recommendation

1The Assembly refers to its Resolution ... (2013) on national security and access to information and invites the Committee of Ministers to:

1.1examine ways and means to promote the entry into force and speedy implementation of the Council of Europe Convention on Access to Official Documents (CETS No. 205);

1.2to review the Council of Europe’s own policies regarding access to information and classification and declassification of documents in light of the Assembly’s resolution;

1.3encourage member States of the Council of Europe to take into account the “Global Principles on National Security and the Right to Information,” adopted on 12 June 2013 by an assembly of experts from international organisations, civil society, academia and national security practitioners, in particular concerning the points highlighted in the above-mentioned resolution, in modernising their legislation and practice.