1. Procedure
1. At its 1025th meeting on 30
April 2008, 2 and 5 May 2008, the Committee of Ministers decided
to ask for the Parliamentary Assembly’s opinion on the draft Council
of Europe convention on access to official documents (hereinafter
“the draft convention”).
2. On 23 June 2008, the Assembly referred the request of the
Committee of Ministers for an opinion to the Committee on Legal
Affairs and Human Rights for a report.
3. At its meeting on 25 June 2008, the Committee on Legal Affairs
and Human Rights appointed Klaas de Vries (Netherlands, Socialist
Group) as rapporteur.
2. Substantive
comments
2.1. Overview
4. The Committee of Ministers
of the Council of Europe must be congratulated on taking the initiative
to introduce a binding instrument on access to official documents,
building in particular on Recommendation Rec(2002)2 on access to
official documents. The draft convention has much to commend it.
It bears the fruits of expert knowledge and drafting, as well as
significant input from civil society. The purpose of freedom of information
and the value it brings to society in general are well set out in
the Preamble to the convention and in the explanatory report. The
convention and explanatory report together contain all of the critical
components of a workable freedom of information regime. Ensuring
effective access is the aim of a good system. A crucial consideration
in that endeavour is the nature and extent of the exemptions permitted.
To give maximum effect to the right of access, the exemptions must
be carefully circumscribed and narrowly construed and applied. Measures
need to be in place also to guard against ways of circumventing
the right, such as taking too long to respond to requests, invoking
exemptions too readily or making access too expensive or burdensome.
The draft convention recognises in principle all of these requirements.
The accompanying explanatory report provides valuable guidance to
parties and public authorities on ways to fulfil their various responsibilities
under the convention.
5. While the draft convention contains all the crucial elements,
there are some issues of detail, in particular regarding the scope
of its application where the draft does not go far enough. These
are addressed in the following commentary. In assessing any lacunae
it must be borne in mind that there is little value in having a perfect
system which is so demanding that states are either unable or unwilling
to sign up to the convention, either at all or only after a long
time period needed to put all the necessary measures into place.
But at the same time, there is no point in introducing a system
that falls short in significant ways so that the right of access available
to the public is unsatisfactory. The fact that many member states
of the Council of Europe already have relatively high levels of
access should be taken as an example.
2.2. General
assessment of the draft convention
6. The draft convention of the
Council of Europe on access to official documents is most welcome.
It marks an important stage in the development of a true right to
information, the precise status of which has remained unclear for
some time.
7. As rightly expressed in the explanatory report of the draft
convention “Transparency of public authorities is a key feature
of good governance and an indicator of whether or not a society
is genuinely democratic and pluralist, opposed to all forms of corruption,
capable of criticising those who govern it, and open to enlightened participation
of citizens in matters of public interest. The right of access to
official documents is also essential to the self-development of
people and to the exercise of fundamental human rights.” Access
to official documents not only provides the public with a valuable
source of information, but also, as the Preamble to the draft convention
points out, “fosters the integrity, efficiency, effectiveness and
accountability of public authorities, so helping affirm their legitimacy”.
Access to official documents thus benefits both information providers
and users and therefore society as a whole. It plays a vital role
in bringing information about the business of government into the
public domain, giving effect to the reality that the information
belongs to the people and is merely held by governments and public
bodies on their behalf. An effective access system promotes a stronger
relationship between citizen and government.
8. The draft builds on the recognition found in the Declaration
of the Committee of Ministers of the Council of Europe on the Freedom
of Expression and Information adopted on 29 April 1982, as well
as Recommendations No. R (81) 19 on the access to information held
by public authorities; No. R (91) 10 on the communication to third
parties of personal data held by public bodies; No. R (97) 18 concerning
the protection of personal data collected and processed for statistical
purposes; No. R (2000) 13 on a European policy on access to archives
and particularly Rec(2002)2 on access to official documents. Having
prepared the way, the Council of Europe has now reached the point
of introducing “the first binding international legal instrument
to recognise a general right of access to official documents held
by public authorities” (explanatory report, paragraph 1).
9. The draft convention also complements the work of the European
Union, particularly Regulation (EC) No. 1049/2001 of the European
Parliament and of the Council of 30 May 2001 regarding public access
to European Parliament, Council and Commission documents. It also
adds a general right of access to the UN Convention (Aarhus Convention)
on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters (Aarhus, 25 June
1998).
2.3. Language
issues
10. The rapporteur has first been
confronted with the title of the draft convention which seems to
slightly differ in English (draft Council of Europe convention on
access to official documents) and in French projet
de convention du Conseil de l’Europe sur l’accès aux documents publics.
Why have the drafters not decided to use “official documents” and
“documents officiels” or “public
documents” and “documents publics”?
It appears that this question has been discussed in depth by the
drafters.
11. In French, every administrative document is “public” (as opposed to “private”
(privé) ones emanating from
private individuals), but it only becomes “officiel”
once it is adopted by a competent authority (a document under preparation
within an administrative authority is a “document
public” but not yet “official” because not yet finalised
and approved). The term “documents publics”
in French is therefore a wider notion than “documents officiels”.
12. In English, the equivalent of this wider notion is “official
documents” – documents emanating from persons who hold an office
(“officials”) and not from private persons.
13. The rapporteur thought it was useful to make clear that what
appears to be a different word in the French and in the English
versions actually has the same meaning.
2.4. Comments
article by article
Introductory remarks
14. Before commenting on the draft
convention article by article, the rapporteur would like to point
out the numerous reactions by civil society, other international
organisations, information commissioners of different countries
as well as by other bodies of the Council of Europe on the draft
convention at various stages of its preparation.
15. They have pointed out what they consider to be serious shortcomings,
fearing that this might result in a missed opportunity, and stressing
the historical importance of the creation of the first international
legally binding document in the field of freedom of information.
16. The rapporteur has studied their comments carefully and has
taken them into account in his article-by-article comments. Without
claiming to be exhaustive, references will be made where appropriate
to these contributions.
Preamble
17. The Preamble to the draft convention
indicates the importance of and reasons for recognising a right
of access (paragraphs 5 and 6). It is a welcome starting point that
the presumption is clearly in favour of a broad right of access,
considering that “all official
documents are in principle public and can be withheld subject only to the protection of other
rights and legitimate interests” (paragraph 7, emphasis added).
Section I Article 1
18. As might be expected, Article
1 of the draft convention begins with general provisions, which
include definitions of the principal terms, namely “public authorities”
and “official documents”.
19. However, the article begins with a rather negative statement
that “[t]he principles set out hereafter should be understood without
prejudice to those domestic laws and regulations and to international
treaties which recognise a wider right of access to official documents”.
Although the purposes of a right of access are well set out in the
Preamble, there is no actual statement of the right, which is at
the heart of the draft convention, in either the Preamble or the
text of the articles. It would strike a much more positive and convincing
note to begin the text of the articles of the draft convention itself
with a statement of the right, for example “this convention establishes
the right of access to official documents held by public bodies”.
This could then be followed by the text
of paragraph 7 of the Preamble, which could be moved down from the
Preamble: “All official documents are in principle public and can
be withheld subject only to the protection of other rights and legitimate
interests.” The statement about international treaties would then
follow.
20. Regrettably the definition of “public authorities” (paragraph
2.
a.i) is somewhat restricted
in that, apart from government, it includes only the administrative
functions of legislative and judicial authorities and of natural
and legal persons.
It leaves it to individual states to make
a declaration “opting in” to a broader concept of the term “public
authorities”, which extends to the “other” functions of these authorities
and the public functions and public funding aspects of the operation
of natural and legal persons (paragraph 2.
a.ii).
The declaratory “opt in” facility is better than none, and the monitoring
function (Article 11
et seq.)
could be used in practice to promote and encourage this step or
to amend the text in the future to include these functions as standard
rather than additions. Sometimes states do need time to be convinced
and/or to prepare to bring the judicial and private bodies within
the scope of freedom of information.
21. If, however, states choose not to opt in, large areas of public
information will fall outside the scope of the convention. The safeguards
contained in other articles should be sufficient to allow either
for states to opt in or preferably for an expanded definition to
be included in the text. For example, the grounds for possible limitations
on access to information contained in Article 3 include the “prevention,
investigation and prosecution of criminal activities” and the “equality
of parties in court proceedings and the effective administration
of justice”. They also include the “deliberations within or between
public authorities concerning the examination of a matter”, as well
as “privacy and other legitimate private interests” and “commercial
and other economic interests”. Such possible exemptions are phrased
in sufficiently broad terms to give comfort to judicial and legislative
authorities, and to natural or legal persons performing public functions
or in receipt of public funds. Since one of the key purposes of
a right of access to information is to ensure accountability, it
is important that as many bodies operating in the public sphere
and as many areas of information as possible be brought within the
terms of the convention, and hence national legislation.
22. The option for parties to make a declaration, accepting a
broader definition in relation to “one or more” areas (judicial,
legislative, natural or private persons), is better than not including
those bodies or persons at all but it falls short of ensuring their
inclusion. Another option, therefore, might be to strengthen the
“opt in” mechanism. The provision could perhaps read, “Each Party
shall … declare that the definition of ‘public authorities’ shall
include, [from date/or within one year/two years of the coming into
force of this convention], if not already included, the following:
….” Something of that nature would put an onus on parties to include
all the additional areas of information held by public authorities
but allow them a definite extra period of time to do so or allow
them to do so incrementally.
23. The definition of “official documents” (paragraph 2.b) is broad and focuses on the content
(“information”) as opposed to the form (“recorded in any form, drawn
up or received and held by public authorities”). It makes clear
that it includes all information received, created or amassed by
public authorities or held by them. This is a strength. It is attenuated,
however, by the restrictive definition of “public authorities” (above),
unless the declaratory “opt in” facility in paragraph 2.a.ii is availed of.
24. Furthermore, as the explanatory report makes clear, the definition
means that the right of access is limited to existing documents
and the convention does not oblige parties to create new documents
in response to requests for information (paragraph 14). That is
a reasonable stance, provided the absence of documents is not a
deliberate attempt to prevent information coming into the public
domain or that the documents are not of a kind that really should
be recorded, drawn up, received or held and made available. It is
also reasonable that private papers be excluded (explanatory report,
paragraph 13).
Proposals:
- further consideration
should be given to broadening the definition of “public authorities”
to include a wider range of activities of public authorities and
hence a wider range of information;
- before paragraph 1, add a new paragraph as follows: “This
convention safeguards the right of access to official documents
held by public bodies. All official documents are in principle public
and can be withheld subject only to the protection of other rights
and legitimate interests.”
Article 2
25. Although very much a standard
feature in modern freedom of information rules, it is a strength
of the draft convention that the right of access is available to
everyone. The explanatory report expands on the practical implications
and effects of including everyone (explanatory report, paragraphs
17 and 18). It makes clear that motive and intention are irrelevant
and that requesters will be entitled to use any information accessed
for any lawful purpose (explanatory report, paragraph 19).
Article 3
26. Limitations on the right of
access are permitted but only when prescribed by law, necessary
in a democratic society and proportionate to the aim of protecting
certain specified interests. This formulation has the advantage
of following quite closely that of the European Convention on Human
Rights. By requiring that such refusal be permitted only when the
tests (prescribed by law, necessity and proportionality) are met,
it obliges public authorities to justify any such refusal and guards
against blanket or wholesale refusal of access to documents on the
grounds listed. Also parties “may” impose limitations; the text
does not say “shall”, thus the provision is enabling, not mandatory.
This is a positive aspect. The list of areas that could justify
the imposition of limitations (defence matters, privacy, etc.) is
also reasonable, and as pointed out in the explanatory report, is
exhaustive. That is an important consideration, as states cannot
therefore add areas of limitation of their own. The only addition
to the main list contemplated in the convention is contained in
a clause following the list, which allows for the possibility of
some states including communication with the reigning family or
head of state among the possible limitations. The explanatory report
makes clear that this is necessary because of the constitutional
position of the reigning family or head of state in certain countries (explanatory
report, paragraph 35).
27. A distinction is drawn between access to documents, which
may be limited as above, and access to information contained in
documents. In other words, access to documents may in some cases
be refused on the basis of one or more of the above listed interests.
In other cases, access to the documents themselves may be allowed
but certain information in them may be refused – and presumably
removed or blanked out – on the grounds that “its disclosure would
or would be likely to harm any of the interests mentioned in paragraph
1, unless there is an overriding public interest in disclosure”
(paragraph 2). This provision is explained in the explanatory report
by reference to the “harm test” and “balancing of interests” principle
(explanatory report, paragraphs 36 to 39). Again, this reflects
an emphasis on disclosure, which is very much in the spirit of access and
freedom of information.
28. The provision in paragraph 3 that “Parties shall consider
setting time limits beyond which the limitations mentioned in paragraph
1 would no longer apply” is welcome. It requires (“shall” is mandatory)
parties to consider setting not necessarily to actually set – time
limits. This is an important inclusion because without it limitations
could be imposed in one set of circumstances and not removed when
those circumstances changed. It also means that if states do not
set time limits they can be asked to give reasons or documents can
be re-sought after a period of time. It is important to note also
that information can be time sensitive and delay can render the
information useless, so a time frame where possible is highly desirable.
Article 4
29. The three provisions of this
article are to be commended: an applicant does not have to give
reasons for requesting the documents; parties may allow applicants
anonymity except where disclosure of identity is essential in order
to process the request; and formalities are to be confined to the
essentials. This favours the applicant and makes the process as
straightforward and easy as possible – key components of an effective right
of access.
Article 5
30. The process of making a request,
as set out in Article 5, is admirable as far as it goes. The requirement that
the public authority “shall help the applicant, as far as reasonably
possible, to identify the requested official document”
places a
duty on the public authority to provide reasonable assistance (paragraph
1). The language used (“applicant”, “requested”) suggests that the
assistance is to be given once the request has been made. For example,
people sometimes make requests for all references to a particular
scheme or event and it may be helpful to them if the public authority
can assist them to pinpoint more clearly the nature of the references
they actually want. It would be too onerous to require public authorities
to help everyone individually before they made a request. That is
where training and education of the public comes in, as well as
the requirement that public authorities make available to the public
generally information on how they operate, what schemes they implement,
what type and range of records they hold, and so on.
It is of course desirable that public
authorities appoint freedom of information officers to assist members
of the public with queries, direct them to already available information
and provide a resource to the authority itself by, for example,
centralising queries and identifying areas of repeated inquiries
where it might be appropriate for the authority to make the information
available proactively without waiting for formal requests. A general
requirement to inform the public about their right is contained
in Article 9.
31. Similarly, a duty is placed on a public authority to redirect
“wherever possible” the application or applicant to the appropriate
authority if it does not hold the document itself (paragraph 2).
Again, this is important assistance to an applicant. It also puts
some pressure on public authorities to provide manuals or online
guides to the systems they employ, the schemes they administer,
and the documents they hold, in order to cut down on the amount
of assistance they will have to give and the need to redirect applicants
or applications.
32. The language of paragraph 3 (“Requests for access… shall be
dealt with on an equal basis”) is rather vague but clarified in
the explanatory report (paragraph 48) as meaning that requests will
normally be dealt with in order of receipt and regardless of the
status of the applicant or the nature or complexity of the request.
This would mean, for example, that journalists as applicants should
neither be given priority nor penalised because of the likely publication
of information accessed. The latter in any event is prohibited by
Article 2, which requires (as indicated in the explanatory report)
that access be granted regardless of the motive or intention of
the requester.
33. The requirement in paragraph 4 that requests be dealt with
promptly and decisions “reached, communicated and executed as soon
as possible or within a reasonable time limit which has been specified beforehand”
is essential to the effective operation of the right of access to
information.
Access
delayed without justification undermines the right itself.
34. Access if it is to mean anything must be effective, in that
information must be available by means of a reasonably easy and
timely process. The formulation used (“as soon as possible or within
a reasonable time limit which has been specified beforehand”) is
appropriate; it requires specific time limits, so that applicants
will know when to expect decisions but also allows individual states
some leeway. A certain leeway is necessary for parties because,
if a precise short time limit were to be laid down for all, it might
be too onerous for some states or some public authorities that receive
a high number of requests. As a result, access could be rendered ineffective
by some public authorities in some states, for example, becoming
clogged up with requests and being unable to process them within
the set time, thus facing backlogs. Such a development would not
be in the interest of either an authority or the public.
35. However, in order to ensure that parties do not accord too
much time to public authorities and in order to bring some certainty
to the process, it would seem prudent to add something like “and
in any event no longer than thirty days,
unless in exceptional circumstances, in
which case the public authority shall inform the applicant within
the thirty days, giving reasons for the delay and indicating when
the decision and means of access will become available”. Where states
opt for the longer time frame, pressure can be put on them via the monitoring
process (Article 11
et seq. below)
and through training and activation of the public, to reduce such time
limits.
Training
of both public authorities and of civil society, journalists and
the voluntary sector are crucial to the successful implementation
and use of any freedom of information scheme. If necessary, the explanatory
report could state that parties that already have a lower time limit
should not extend it.
36. If one considers the fact that Committee of Ministers Recommendation
Rec(2002)2 on access to official documents already has a stronger
wording in VI.3, “A request for access to an official document should
be dealt with promptly. The decision should be reached, communicated and executed within any time limit
which may have been specified beforehand” (emphasis added), one
might fear that the actual wording of the draft convention (“as
soon as possible or within
a reasonable time limit which has been specified beforehand”, emphasis
added) does not only bring no added value as regards the crucial
question of time limit but actually represents a step back in comparison
with existing standards.
37. Paragraphs 5 and 6 are both quite acceptable. It is perfectly
reasonable to refuse requests that are unduly vague or manifestly
unreasonable (paragraph 5). It is also imperative that refusals
in whole or in part be accompanied by reasons explaining the decision
(paragraph 6). If the applicant is satisfied with the reasons, his/her
right of access has been met. If he/she is not satisfied, some form
of appeal is warranted; otherwise the right cannot be said to have
been given effect to in practice. Besides, states could offer and
hide behind spurious reasons, safe in the knowledge that there was
no right of appeal.
Proposal: further consideration should be given to the inclusion
of a reference to an upper time limit on the handling of requests.
Article 6
38. Article 6 deals with forms
of access. It gives the applicant a right to choose, within reason,
the form in which he/she wishes to receive the information.
39. Paragraph 2 contains the important principle that where some
of the information in a document is subject to a limitation, access
to the remainder of the information should be granted, with omissions
clearly indicated. The exceptions to this principle are where the
remainder of the information is misleading or meaningless or if it
imposes a manifestly unreasonable burden for the authority to release
the remainder of the document. If any of these exceptions are applied,
the applicant will have a right to seek a review of the decision
and the authority will have to justify the refusal on one of the
grounds stated. In this regard, it is important that the review/appeals body
can look behind a claim on one of those headings. The notion of
“misleading” is perhaps less subjective than that of “meaningless”,
especially since in the latter case the authority may deem the information meaningless
without knowing the purpose for which the information is sought.
For instance, it might still be useful to a journalist, either because
it is not so meaningless in the context of the story being pursued
or because it may enable the journalist to make a point about the
freedom of information regime or some other matter. The explanatory
report makes clear that the possibility of refusing information
on these grounds “is intended to be interpreted in a restrictive
way” and whether it is “meaningless or misleading or not must be assessed
with restraint and respect for the applicant” (explanatory report,
paragraph 59).
40. Paragraph 3 of the text is merely common sense and practical.
It also gives public authorities a reason to make information available
routinely and proactively, in the knowledge that they will not have
to process individual requests if the information is already available
elsewhere.
Article 7
41. Article 7 deals with fees to
be charged and takes a common sense approach: inspection is to be
free (except for archives and museums) but a “reasonable” fee, which
does not exceed the actual costs of reproduction and delivery of
the document, can be charged for copies. There is also an obligation
to publish the tariffs of charges so that applicants know the financial
implications of making a request and choosing a particular form
of access. Fees for reviews/appeals should also be required to be
reasonable (see further Article 8, paragraph 2, below). The amount
or imposition of fees should also be within the scope of the review process.
Article 8
42. Article 8 is one of the most
important but potentially problematic articles of the convention.
It is a positive provision for making the system of access effective
and meaningful in that it sets out the right to a review of decisions.
It gives an applicant “access to a review procedure” to “a court
or other independent and impartial body established by law” when
a public authority refuses access, expressly or impliedly (for example,
through not responding within the time frame laid down), in whole
or in part.
43. It is clear and appropriate that the review envisaged in paragraph
1 is not just a review by the authority itself but by a court or
other independent and impartial body established by law. That is
a positive feature. What is not altogether clear, however, is whether
it envisages a judicial review by a court of the process of reaching the
decision or whether it envisages an appeal against the substance
and process of the decision. In other words, can such a review body
seek further information from the authority about the substance
of the information as well as the process of deciding, and overrule
the authority and order disclosure if it thinks fit? The explanatory
report (paragraph 64) states that the review body “must be able,
either itself to overturn decisions taken by public authorities
which it considers do not comply with the legislation in force,
or to request the public authority in question to reconsider its
position”. It should really be able to do both (and perhaps that is
what is intended, although the language suggests otherwise). One
problem here is the word “or”. It might be better to re-order the
sentence as follows: “must be able to request the public authority
in question to reconsider its position and/or to overturn itself
decisions taken by public authorities which it considers do not
comply with the legislation in force”.
44. Another problem is that there is no clear statement that the
review body can seek further information from the authority, although
that may be implicit if the review body has the right to overturn
decisions of the authority; it can hardly do so without obtaining
further information from the authority and the authority having an
obligation to furnish such information to the review body. Given
the lack of clarity around aspects of this provision, the simplest
thing to do, in order not to be overly prescriptive, may well be
to adopt the wording proposed by Article 19 et al. in relation to
ordering disclosure.
The
power to order disclosure would cover all of the issues raised here.
45. Two other things are noteworthy. First of all, the provision
is for “review”, not “appeal”. This is significant, particularly
in light of the second observation, namely that there is no indication
in either the text of the draft convention or in the explanatory
report that the decision of the review body would be final, subject
only to recourse to a court on a point of law.
46. Paragraph 2 states that an applicant “shall always have access
to an expeditious and inexpensive review procedure, involving either
reconsideration by a public authority or review in accordance with
paragraph 1”. The sentiment here of an expeditious and inexpensive
review procedure is admirable and necessary. As is the case regarding
the processing of requests (Article 5, paragraph 4), it would be
desirable to have a specified time limit placed on the review process.
47. Presumably the word “always” in Article 8, paragraph 2, refers
to situations other than those envisaged in Article 8, paragraph
1, that is, denial of a request, expressly or impliedly. For instance,
it might include the imposition or amount of fees charged, or the
lack of time limits when any of the limitations in Article 3 are invoked.
The explanatory report merely points out that some states have both
a review by a public authority itself and by a court or independent
body, such as an ombudsman or mediation body.
48. The explanatory report also states that “the possibility of
other legal and disciplinary actions against public authorities
which have committed a serious breach of their obligations under
the present convention must not be excluded” (explanatory report,
paragraph 64). This might include, for example, the deliberate destruction
of documents to frustrate access or review and is a deterrent to
any such action.
Proposal: further consideration should be given to clarifying
and strengthening the review process provided in Article 8, paragraph
1, to ensure its effectiveness.
Article 9
49. Article 9 is headed “Complementary
measures” and includes a duty on the parties to inform the public of
their right of access and how that access may be exercised. This
is vital to the success of the scheme, as the public need this information
if they are to avail of the right. A list of matters for which “appropriate
measures” must be taken is set out. All of these matters facilitate
the development of a meaningful and achievable right of access.
50. There is a slight difficulty and lack of clarity with the
drafting of this article, in that the subject of the first two sentences
is the “Parties”. “They”, that is, the parties, shall inform the
public of their right and “They” shall also take appropriate measures
to do the things listed in a to d. That formulation suggests that
they, that is, the parties, are to “provide information on the matters
or activities for which they are responsible;” etc., whereas it would
seem that it should be the public authorities themselves who should
be charged with doing so. Furthermore, the ratification of the convention
assumes that parties will need to educate public authorities as to
their duties and obligations. If that is so, it would be better
to delete a and to make a
new paragraph beginning with “They shall also take appropriate measures
to ensure that public authorities:”, followed by b, c and d. That would mean that the parties
are to take appropriate measures (which implies the education of
public authorities in their duties and obligations) to ensure that
public authorities do these various things. If this is not the intended meaning,
and the onus is on the parties to do these various things in a to d themselves,
then it may be that the word “they” in b should
read “the public authorities” and “their” in c should
also be replaced and the meaning made clear. The explanatory report
at paragraphs 68 and 70 seems to view the duties as those of the
parties.
Proposal: to delete a and
to make a new paragraph after “exercised.” as follows:
“They
shall also take appropriate measures to ensure that public authorities:
b. [to become new a]
c. [to become new b]
d. [to become new c].”
Article 10
51. Article 10 makes it mandatory
for public authorities to be proactive in the release of information
“where appropriate”. As the explanatory report indicates or implies
in its reference to what some states already do, it is important
that information issued proactively be issued in an accessible and
user-friendly format and at locations, physical and online, which
will ensure easy, widespread access. As suggested above, such measures
are of benefit to both the public and the authorities themselves.
Section II Articles 11 et seq.
52. Section II of the draft convention
sets out the procedures for monitoring and reviewing the operation
of the convention and its implementation by the parties. The provisions
are fairly standard and informed by the guiding principles of the
Council of Europe. The system provides for the establishment of
a group of specialists, which will meet at least once a year. Its
composition, role and functions are set out in Article 11 and some
of the subsequent articles. A second monitoring body, called the
consultation of the parties, is also provided for and its role is
set out in Article 12 and following articles. As usual in the case
of conventions, the procedures for signature and entry into force
of the convention are set out (Articles 16 et
seq.), as well as matters such as accession, territorial
application, amendments, declarations, etc.
53. The question of reservations remains problematic in that a
delicate balance is needed to provide all the necessary components,
theoretical and practical, that make for an effective right of access.
A reservation made in respect of any one or more components could
potentially weaken or undermine the effectiveness of the right of
access, and therefore permitting reservations even in accordance
with the Vienna Convention might prove problematic in practice.
Proposal: to add a new paragraph reading as follows: “No reservations
may be made to this convention.”
Reporting committee: Committee on Legal Affairs and Human
Rights.
Reference to committee: Doc
11631, Reference No. 3462 of 23 June 2008.
Draft opinion adopted unanimously by the committee on 9 September
2008.
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides,
Mr Pietro Marcenaro, Mrs Nino Nakashidzé (Vice-Chairpersons),
Mr Francis Agius, Mr José
Luis Arnaut, Mrs Meritxell Batet Lamaña,
Mrs Marie-Louise Bemelmans-Videc,
Mrs Anna Benaki, Mr Erol Aslan Cebeci, Mrs Ingrida Circene (alternate:
Mr Boriss Cilevičs), Mrs Alma
Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mrs Lydie
Err, Mr Valeriy Fedorov,
Mrs Mirjana Ferić-Vac, Mr Aniello
Formisano (alternate: Mr Andrea Manzella),
Mr György Frunda, Mr Jean-Charles
Gardetto, Mr József Gedei, Mrs Svetlana Goryacheva (alternate: Mr Arsen Fadzaev), Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva,
Mrs Karin Hakl, Mr Andres Herkel,
Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme
Ilyaz, Mr Kastriot Islami, Mr Željko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan, Mr Oleksandr Lavrynovych
(alternate: Mr Ivan Popescu), Mrs Darja
Lavtižar-Bebler, Mrs Sabine LeutheusserSchnarrenberger, Mr Humfrey Malins, Mr Andrija Mandić, Mr Alberto
Martins, Mr Dick Marty, Mrs Assunta
Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva, Mr Philippe
Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Miguel Barceló-Pérez), Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz
Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras (alternate: Mr Theodoros Pangalos), Mrs Maria Postoico,
Mrs Marietta de Pourbaix-Lundin, Mr John Prescott (alternate: Mrs Ann Clwyd), Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud,
Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen,
Mr Armen Rustamyan, Mr Kimmo
Sasi, Mr Ellert Schram, Mr Christoph Strässer, Lord John Tomlinson,
Mr Mihai Tudose, Mr Tuğrul Türkeş,
Mrs Özlem Türköne, Mr Vasile
Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Hugo Vandenberghe,
Mr Egidijus Vareikis, Mr Klaas de Vries, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa, Mr Marco Zacchera,
Mr Krzysztof Zaremba, Mr Łukasz Zbonikowski.
NB: The names of those members present at the meeting are
printed in bold.
See 36th Sitting, 3 October 2008 (adoption of the draft opinion);
and Opinion No. 270.