Ever Closer Transparency: Comparing the European Regulation on Public Access to Documents with the U.S. Freedom of Information Act

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Ever Closer Transparency: Comparing the European Regulation on

Public Access to Documents with the U.S. Freedom of Information Act

By Kevin Lees1

Tout le monde est pour la transparence, mais tre trop poulaire, leterme risque de ne plus avoir de signification prcise. Jacob Sderman,European Ombudsman, 1995-2003.2

An entirely desirable objective was pursued singlemindedly to theexclusion of equally valid competing interests [and] a lack of cost-benefit

analysis; in more commonsensical terms, a loss of all sense ofproportion. then-professor (now U.S. Supreme Court justice) AntoninScalia, on the 1974 Amendments to the U.S. Freedom of Information Act.3

Freedom of information and government transparency are a bit like Her Majesty

the Queen of the United Kingdom, the American soldier or American family values: it

is politically unpalatable not to support them in general, but substantively impossible to

define that support in particular. Yet the ability of the citizen to petition his or her

government for information about the way in which its officials govern must rank among

the most fundamental aspects of what it means to live in a democratic society. Indeed, the

touchstones of 21st century democratic values accord the right to access public

information a haloed place; the European Charter of Fundamental Rights lists in Article

42 the right of access to documents (Any citizen of the Union, and any natural or legalperson residing or having its registered office in a Member State, has a right of access to

European Parliament, Council and Commission documents.).4 Challenges under the

Freedom of Information Act (FOIA) in the United States often come hand-in-hand with

First Amendment arguments.5 The right of public access, however balanced by

countervailing objectives and doctrines, is a vital competent of the kind of transparent

government that lies at the core of healthy democratic decision-making.

1 J.D. candidate at New York University School of Law. Special thanks to Joanna Mendes, ProfessorJacques Ziller, Professor Martin Rhodes and Professor Neil Walker of the European University Institute inFlorence, Italy, and Professor Rachel Barkow at NYU.2 Jacob Soderman,Le citoyen, ladministration et le droit communautaire, REVUE DU MARCH UNIQUEEUROPEN, 19-44 (1998).3 Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, March/April 1982, at 16.4 Charter of Fundamental Rights of the European Union, Dec. 7, 2000, Art. 42.5See, e.g., Ctr. for Natl Sec. Studies v. United States Dept of Justice, 331 F.3d 918 (D.C. Cir. 2003), cert.denied, 124 S. Ct. 1041.


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Nonetheless, not until 40 years after the initial signing of the Treaty of Rome,

with three intervening intergovernmental conferences, did the European Economic

Community (later the European Union) finally create anything resembling a fundamental

or constitutional right to access to documents. A further four years of acrimonious

intergovernmental debate passed before European citizens could boast a statutory right to

access EU documents. Today, that statutory right in the form of Regulation 1049/2001

of 30 May 2001 regarding public access to European Parliament, Council and

Commission documents establishes the default position that EU citizens may petition

the Parliament, Commission, and Council for documents, limited by several restrictions

and exceptions. Now only in its fifth year of application, the Regulation has been subject

to criticism from both within and outside the EU as insufficient or ineffective.6 This

paper will compare and contrast the long-standing American FOIA with the nascentEuropean right to documents a right that has only recently been enjoyed at the national

level in most EU Member States.7

The first part of this paper will provide a theoretical context for the freedom-of-

information debate in Europe. What do broad terms such as transparency mean? Why is

transparent so important to the democratic tradition? What impact does information-

access have upon the perceived democratic deficit currently plaguing the European Union

(or not plaguing, depending on who you ask)? Why look to legal traditions outside of

Europe, and specifically to the administrative and regulatory state model of the United

States? Many scholars both European and American, both neofunctionalist and

supranationalist, and from legal theory and European integration theory have made

perceptive contributions on the topic, which lies upon several major fault-lines in

contemporary European policy debates.

The second part of the paper will examine the texts of both 5 U.S.C. 552 in the

United States (FOIA) and Regulation 1049/2001 in the European Union. For what

reasons and whose motivations were the laws enacted, in 1966 and 1974 in the United

States, and in 2001 in the European Union? In what respects are the laws similar? In what

6See, e.g., European Citizen Action Service, Preliminary Report on Improving Citizens Access toDocuments, Oct. 17, 2003, avail. http://www.ecas.org/product/91/default.aspx?id=308.7 The United Kingdom, for example, only adopted a Freedom of Information Act in 2000. See PatrickBirkinshaw,Freedom of information in the UK and Europe: Further progress?, 19 GOVT INFO. Q., 77-86(2002).


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respects are they different? In what respects mustthe two be different, given the

structural differences between the United States and the European Union? Finally, in

what ways have U.S. federal courts and administrators subsequently interpreted FOIA?

How have the European Court of Justice, the Court of First Instance, and the other

institutional actors and Member States contributed greater understanding to the initial

Regulation?

The third and final part of the paper will suggest five recommendations for reform

to strengthen the right to public access to documents in the European Union, both looking

to the American experience and bearing in mind thesui generic nature of the European

Union. The United States has almost 40 years of FOIA jurisprudence and interpretation,

from which both positive and negative lessons can be drawn. At the same time, the

novelty and flexibility of the European Union both provides opportunities in the arena ofinformation-freedom that do not and cannot exist in the United States and erects barriers

that limit access to information in ways that are equally inapplicable in the United States.

1. Providing a Theoretical Context for the Debate on Freedom of Information in

Europe

1.1 What is Transparency?

The European Commissions 2001 opus on good governance lays down the

following goal: 8

The institutions should work in a more open manner. Together with the MemberStates, they should actively communicate about what the EU does and thedecisions it takes. They should use language that is accessible and understandablefor the general public This is of particular importance in order to improve theconfidence in complex institutions.

Certainement, the goal should alwaysbe that the institutions work in a more open

manner. But what exactly does more open mean? In discussing the guidelines for the

use of the open method of co-ordination, the White Paper stresses that the data and

information generated should be widely available.9 Although the White Paper mentions

openness 12 times, the most specific recommendation it offers is that the Commission

ought to provide up-to-date, on-line information on preparation of policy through all

8 European Governance, a White Paper, July 25, 2001, 10.9Id., at 22.


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stages of decisionmaking.10 Too often, reports such as the White Paper on Governance

fail to define the substantive content of words like openness, allowing them to become

open vessels that hold both the broadest notions of government transparency and the

cynical window-dressing version of openness.

Public access to documents rests at the core of governmental transparency.

Pierpaolo Settembri, in a recent paper in the Journal of Common Market Studies,

suggests that transparency is comprised of the following five attributes: (1) physical

access to the institutions premises, (2) access to documents, (3) transparency of debates

through direct or indirect accessibility to interested parties, (4) intelligibility and

transparency of voting, and (5) clarity of interests behind legislative choices. 11 Access to

documents, in particular, allows EU citizens to learn what has been decided by and

within the institutions, and is a tool for other bodies and the electorate to monitor EUactivity.12 In a broader conceptualization, Francesca Bignami argues that EU citizen

participation rights have evolved in three generations since the early 1970s. The

European Court of Justice first led the way by creating the right to a fair hearing. 13 The

push for greater transparency in the 1990s marked the second wave of participation

rights. The latest generation of rights still evolving in its character concerns the role

that civil society should play in the rulemaking process, through the open method of

governance or other methods of direct citizen participation. Bignami highlights in

particular the individual right of access to information as the central legal right

guaranteeing government transparency as both an informal and formal tool to exert

influence on legislative and administrative bodies.14

1.2 Why Transparency?

At least two strong theoretical rationales exist for transparent government and the

right to access public documents: (1) as a means to ensure informed democratic

participation and (2) as an ends to ensure governmental actors are not acting

ineffectively, inefficiently, or outside the boundaries of their legal duties. The rationales

10Id., at 4.11 Pierpaolo Settembri, Transparency and the EU Legislator: Let He Who is Without Sin Cast the FirstStone, 43 J.COMMON MKT. STUD. 637, 642-43 (2005).12Id.13 See Francesca Bignami, Three Generations of Participation Rights in European AdministrativeProceedings, 68 LAW & CONTEMP. PROBS. 61, XX (2004).14Id., at xx.


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are complementary, but it is important that they remain theoretically distinct. In the

former rationale, public access is a means to the ultimate end of participation; in the latter

(perhaps more skeptical) rationale, public access is the end itself a check on the power

of nameless and faceless Brussels bureaucrats.

Effective political participation can only exist if citizens are informed of both the

substantive content and the administrative procedures of their government. This extends

not only to an informed citizenry at election-time, but to the active engagement of

interested individuals at all levels of the decision-making process, especially in a world

where more legislative tasks are delegated to deliberative and specialized administrative

bodies.

Consequently, it is no surprise that communication lies at the heart of Jrgen

Habermass discourse theory of democracy, a model that ranks as one of the mostpowerful and well-known arguments for discursive, participatory democracy.

Institutions in a constitutional state should both (1) enable the communicative power of

a rationally formed will to emerge and find binding expression in political and legal

programs and (2) allow this communicative power to circulate throughout society via the

application of legal programs to foster social integration.15 Equal opportunities for the

political use of communicative power and communicative freedom require a legally

structured deliberative praxis in which the discourse principle is applied, such that all

formally and procedurally correct outcomes enjoy a presumption of legitimacy.16 It goes

almost without mention in HabermassBetween Facts and Norms that such a legally

structured deliberative praxis presupposes a sufficiently liberal right to public access to

documents and a minimal threshold of transparency in decision-making. Moreover,

Habermas, citing R.A. Dahl, notes that deliberative politics requires, among other

elements, adequate and equal opportunities to determine the policies that best serve the

citizens interest and to acquire an understanding of the matter of a government policy. 17

Thus, from the outset of opinion-and-will-formation, a certain expert knowledge is

requisite.18 Legal norms must assume the form of comprehensible, consistent, and

15 JRGEN HABERMAS, BETWEEN FACTS ANDNORMS 176 (William Rehg trans., 1997).16Id. at 127.17Id. at 316, citingR. A. DAHL, DEMOCRACY AND ITS CRITICS 112 (1989).18Id. at 164.


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precise specifications, must usually be formulated in writing and be made now to all

addresses.19 Roberto Garagalla, in an essay on public deliberation in the Council of

Ministers, notes that in the Anglo-American tradition, governmental actors must force

themselves to make their decisions comprehensible to citizens in order to bring about any

meaningful participation.20 Freedom of governmental information must be a prerequisite

to informedcitizen participation.

Alternatively, the knowledge that government documents will be open to citizen

request for any reason is a powerful incentive against government overreaching and

ineffectiveness. The aim in allowing citizens to demand public documents that highlight

the manner in which the Council, Commission, and Parliament have reached decisions is

that those institutions will be forced to provide coherent reasons for their actions and will

be hesitant to overstep the boundaries of power set out for them in the Treaties. PeterLindseth argues that the most important role of transparency within the European Union

is the role it plays in demanding accountability:21

Rather than viewing broader transparency and third-party participation rights as ameans of establishing a directly-deliberative democracy at the supranationallevel one should favour broadening such rights for a different reason: as toolsfornational legislatures to monitor the activities of their national executives andbureaucratic officials as they participate in the process of supranational regulatorynorm-production. Transparency and participation rights are means by whichnational legislatures can enlist both social interests and the courts in the task ofsupervising the Community in the exercise of delegated normative power.

Lindseth has even gone so far as to claim that the European Unions democratic deficit is

actually an accountability deficit because of a lack of sufficient transparency and

participatory rights in the EU policy-making regulatory process.22

One important prerequisite for the transparency-as-accountability rationale,

however, is that a willing body of media, civil groups, and other watchdogs sufficiently

committed to holding the European Union accountable actually exists. Without the threat

19Id. at 143.20 Roberto Gargarella,Demanding public deliberation; The Council of Ministers: some lessons from the

Anglo-American history, in DEMOCRACY IN THE EUROPEAN UNION: INTEGRATION THROUGHDELIBERATION? 196 (Erick Oddvar Eriksen and John Erik Fossum, ed. 2000).21 Peter Lindseth,Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the

European Market-Polity, in GOOD GOVERNANCE IN EUROPES INTEGRATED MARKET 158-59 (ChristianJoerges and Renaud Dehousse, ed. 2002).22 Peter Lindseth,Democratic Legitimacy and the Administrative Character of Supranationalism: The

Example of the European Community,99COLUM. L. REV. 628, 684 (1999).


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that EU policy-making will be exposed to criticism, however, the accountability rationale

evaporates somewhat. Indeed, Carol Harlow wonders whether civil society has

sufficiently developed at the European level to provide this kind of rigorous oversight.23

Which rationale is more important? If one is most concerned with democratizing

and legitimizing the supranational aspect of the European project through more active

citizen participation, the participation rationale is more palatable. Conversely, if one is

more concerned with subsidiarity or the limitation of the European Unions supranational

aspects, the accountability rationale is more agreeable. Nonetheless, it is important to

keep in mind that bothparticipation and accountability are values to aspire for in a

democratic society; regardless of the contours of the supranationalist versus

neofunctionalist debate, there are good reasons to champion public access to documents,

and the line between the two rationales blurs. Those who champion a new deliberativepolitics as the solution to the European democratic deficit debate also appreciate the

accountability benefits of transparency. Those who champion transparency as a check on

supranational power also appreciate the benefits of a more engaged and active civil

society. As advocate general Legr wrote in a recent key decision on access to

documents:24

[T]he openness of the public authorities action is closely linked with thedemocratic nature of the institutions. The fact that citizens are aware of what the

administration is doing is a guarantee that it will operate properly. Supervisionby those who confer legitimacy on the public authorities encourages them to beeffective in adhering to their initial will and can thereby inspire their confidence,which is a guarantee of public content as well as the proper functioning of thedemocratic system. At the highest level of that system,providing the public withinformation is also the surest method of involving them in the management ofpublic affairs.

The freedom-of-information issue also implicates the democratic deficit debate.

Enhanced access to documents can only help ameliorate the perceived democratic deficit

in the European Union, whether or not one believes there is currently a democratic deficit

at all. One need not take a position on the question of the European Unions (imminent or

hyperbolic) democratic crisis to acknowledge that greater transparency will in general

add to the European Unions democratic credentials.

23 Carol Harlow, ACCOUNTABILITY IN THE EUROPEAN UNION 26 (2002).24 Case C-353/99P, Council v. Hautala, 1999 ECR II-2489 [1999].


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In the now-uncertain push for a European Constitution, several draft articles

committed EU actors to even greater transparency. For example, Article I-49 would have

placed EU institutions under a duty to conduct their work as openly as possible. Article

III-301 would have required both the Parliament and the Council to publish documents

involving their deliberation on legislative matters.

Even those scholars who believe the democratic deficit debate is much ado about

nothing support greater procedural rights. Andrew Moravcsik has argued not only that the

European Union is more democratic than its individual Member State constituents, but

even that the EU may be too democratic. Nonetheless, Moravcsik admits that in the area

of administrative procedure, the European Union could stand to increase the formal

rights enjoyed by residents of the [United States] under the Administrative Procedure Act

surpass those formally guaranteed in Europe.25 Such rights include not only more liberalaccess to documents in general, but vigorous judicial review, agency adjudication that

mirrors court adjudication, and the U.S. process of notice-and-comment rulemaking.26

1.3 The Appropriateness of the United States Administrative and Regulatory State

as a Comparative Model

Twelve years ago, in an article that changed the path of European integration

theory, Giandomenico Majone argued that, rather than thinking about the European

Union in classic, Westphalian nation-state terms, the European Union is a regulatory

state much akin to the headless administrative Fourth Branch of the U.S. government.27

While the United States had abandoned the kind of command-and-control regulation first

adopted in the late 19th century and later popularized during the New Deal, Europe has

abandoned the great socialist experiments in nationalized industries.28 The processes of

deregulation in the United States and denationalization in Europe led to essentially the

same phenomenon, albeit in different structural forms: a wide delegation of legislative,

judicial, and administrative power in the hands of regulatory agents unaccountable in the

traditional means available to modern democracies. Indeed, the proliferation of U.S.

25 Andrew Moravcsik,In Defense of the Democratic Deficit: Reassessing Legitimacy in the EuropeanUnion, 40 J.COMMON MKT. STUD. 603, 621 (2002).26 5 U.S.C. 553 (2005).27See Giandomenico Majone, The Rise of the Regulatory State in Europe, 38 J.COMMON MKT. STUD. 272(1994).28Id.


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administrative agencies and the growing powers of European supranational institutions

have led to virtually the same sets of questions about democratic deficit, accountability,

participation, political control, agency drift and agency capture. In Richard Stewarts

words, the key puzzle is how to control and validate the exercise of essentially

legislative powers by administrative agencies that do not enjoy the formal legitimation of

one-person, one-vote election.29 The U.S. administrative and regulatory state arguably

lies outside the structure mandated by the U.S. Constitution, its existence justified only in

the due process guarantees outlined in the quasi-constitutional American Procedure Act.

Likewise, it is unclear just how the European Parliaments democratic legitimacy can be

justified (other than the indirect transmission-belt chain stretching from national

electorates to national parliaments to governments that engage in interstate bargaining

and delegation) outside of a quasi-constitutional Treaty of Rome. Lindseth, too, hasplaced the European trend of delegating increasing amounts power to supranational

bureaucrats actors in the context of wider delegation at the national level, a diffusion

and fragmentation of normative power away from national parliaments which began in

the 1920s and 1930s in many nation-states.30

In this light, Majone has written that U.S. procedural guarantees remain much

more prominent than their European analogues: Regulation in Europe is seen to be

highly discretionary, suffering from weak accountability to Parliament, weak judicial

review, absence of procedural safeguards, and insufficient public participation.31 Indeed,

Majone and Lindseth have not been the only commentators to suggest that the European

Union should adopt something akin to the APAs notice-and-comment rulemaking

procedure as a measure to allow for more participation and due process rights in

European regulatory policymaking.32

Although the concept of Europe-as-regulatory-state has proven very useful, it is

necessary to keep in mind that Majone is writing primarily for a political science

audience, not a legal audience, and the European Union is not a series of administrative

29 Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1688(1975).30 Lindseth,Delegation is Dead, at 144.31 Majone, at 94.32See, Francesca E. Bignami, The Democratic Deficit in European Community Rulemaking: A Call for

Notice and Comment In Comitology, 40 HARV. INTL L. J. 451 (1999)


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agencies, or even a super-agency, but an international body established by treaty. Thus,

the analogy is a departure point for broad conceptual analysis, but cannot be taken too

literally.

But if the European Union is really just a supranational version of a regulatory

state, then a comparison between European and American approaches to public document

access become even more relevant. If EU bureaucrats are performing negative regulation

(as opposed to positive regulation and redistributive policy) in a similar manner as

American administrative agencies, it is useful for Europeans and Americans alike to

examine how the other has innovated procedures of legitimation, access, and

accountability. Furthermore, FOIA has been federal U.S. law for 40 years, giving it a

longevity rivaled by few other freedom-of-information regimes. The European Union, in

its own quest to balance out the appropriate level of access to documents, can benefitfrom the hindsight of both the successes and errors of FOIA.

2. FOIA and Regulation 1049/2001 in Comparison

2.1 Regulation 1049/2001s Background

Although the European Union adopted the right to public access to documents

only officially in 2001, the Regulation was the culmination of more than a decade of

increased transparency among the EU institutions, following a renewed emphasis on

openness and transparency after the adoption of the Maastricht Treaty (and the obstacles

of securing ratification for the treaty), the promulgation of a Code of Conduct for access

to Council and Commission documents, the active engagement of the Court of First

Instance and the European Court of Justice in aggressively interpreting access rights, and

the creation of a quasi-constitutional right to public access in the Treaty of Amsterdam.

From the outset, it is necessary to appreciate the diversity in approaches to public

access to documents among Member States. In the Scandinavian tradition, open

administration and freedom of information has been a central component of good

government; the Swedish Freedom of the Press Act dates back to 1766 as the first

modern piece of freedom-of-information legislation, and ranks among the four

fundamental laws that comprise the Swedish Constitution. The notion of

offentlighetsprincipen (public access) is at the center of Swedish government: Every

Swedish citizen shall be entitled to have free access to official documents, in order to


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encourage the free exchange of opinion and the availability of comprehensive

information.33 The Act mandates that any restrictions upon the right to access to official

documents must be scrupulously specified by law.34 The Acts statutory exceptions

apply only if restriction is necessary having regard to seven narrowly-drawn

exceptions, including the security of the Realm or its relations with another state or an

international organization, and the protection of the personal or economic

circumstances of private subjects.35 The same commitment to freedom of information

and open government can be found in other Scandinavian countries. In Finland, the Act

on the Openness of General Documents of 1951 similarly protects the right to access

most state records and documents, and was strengthened to reduce the discretion of

officials to release documents (in favor of more document access) in the past decade. 36

Denmarks Freedom of the Press Act of 1851 and its more recent Access to PublicAdministration Files of 1985 fulfills much the same purpose. Norway has a Freedom of

Information Act and Article 100 of the Norwegian constitution enshrines the right to

public documents.

Other European nations, however, have only recently embraced the concept of

public access to documents, and few have embraced this right as enthusiastically as their

Scandinavian neighbors. The German government passed a freedom of information law

only in 2005; the United Kingdoms Freedom of Information Act dates only to 2000, and

Ireland adopted such a law only in 1998. The right to public access to documents is also

quite new in the Central and Eastern European countries that entered the European Union

in 2004. Neither Italy nor France have been the most enthusiastic proponents of handing

over state documents to citizens, although both have adopted laws in the past quarter-

century opening government documents to an increasing degree of public access.

Frances generalLoi n78-753 du 17 juillet 1978 portant diverses mesures d'amlioration

des relations entre l'administration et le public et diverses dispositions d'ordre

33 Article 1, Chapter 2, On the public nature of official documents, FREEDOM OF THE PRESS ACT, Sweden[hereinafter FREEDOM OF THE PRESS ACT], avail.http://www.riksdagen.se/templates/R_PageExtended____6332.aspx34 Article 2, Chapter 2, FREEDOM OF THE PRESS ACT.35Id.36 More information on Finlands Act on the Openness of General Documents is available athttp://www.om.fi/23963.htm.


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administratif, social et fiscalincludes a basic rule allowing access to administrative

documentss and even established a commission on access to such documents.37

The pressure for a formal commitment to freedom of information had risen at

each successive intergovernmental conference. Commentators attribute the Danish

electorates narrow rejection of the Maastricht Treaty in 1992 in part to the lack of any

treaty requirements for open government or public access rights.38 The European

response was to grant a certain right of access to Council and Commission documents,

subject to several wide exceptions, in the form of an initially non-binding Code of

Conduct, which became binding through the force of several subsequent Council and

Commission decisions.39

The 1996 Intergovernmental Conference that led to the Treaty of Amsterdam

resulted in real strides toward institutionalizing transparency. Not surprisingly, theScandinavian countries, particularly Finland (at the time a relatively new member), were

at the vanguard of the transparency cause. The Finnish government, as early as 1995

the same year in which Finland formally entered the European Union was trumpeting

the need for more transparency and openness at the European level, and prior to the 1996

IGC, submitted a formal proposal on transparency calling for a right for all EU citizens to

access to documents.40 Much to its delight and the delight of its Scandinavian cousins, the

resulting treaty reflected for the first time a treaty-based commitment to transparency.

The resulting Article 255 EC now grants to any EU citizen, whether a natural or legal

person, a right of access to European Parliament, Council and Commission documents,

subject to certain enumerated principles and conditions to be defined by the institutions in

a Regulation.41 An arguably even greater victory for transparency boosters, however, was

the inclusion of language in Article 1 of the Treaty on European Union committing the

37

The Commission dAccs aux Documents Administratifs (CADA). More information is available athttp://www.cada.fr/.38 Bignami, Three Generations, at 10.39 Code of Conduct of December 6, 1993 concerning public access to Council and Commission documents,Council Decision 93/730, 1993 O.J. L340/41; Council Decision 93/731, 1993 O.J. L340/43; CommissionDecision 94/90, 1994 O.J. L46/58.40 Esko Antola,Finland: From Cautious to Hard-Core Member, in THE AMSTERDAM TREATY: NATIONALPREFERENCE FORMATION, INTERSTATE BARGAINING AND OUTCOME 133-34 (Finn Laursen, ed. 2002).41 TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 (1997) [hereinafterEC TREATY] art. 255(1).


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EU institutions to taking decisions as openly as possible and as closely as possible to the

citizen.42

Regulation 1049/2001 is the resulting statutory implementation of Article 255.

With a less-than-enthusiastic Council and a majority of even-less-enthusiastic Member

States, the prospects for a strong freedom-of-information regime were not high. In the

last half of 2000, France held the EU Presidency; alongside the Council, the Commission

and fellow Member States Germany, Spain, Greece, Italy, Luxembourg, and Belgium,

France preferred a system in which documents could be easily protected.43 Aligned in the

interest of markedly broader transparency were the European Parliament, the courts, and

the Scandinavian countries including Sweden, which followed France in the EU

Presidency at the beginning of 2001.44 Thus, the minority in favor of stronger

transparency successfully stalled the promulgation of the Regulation until after theFrench presidency, when the Swedish government could more effectively set the agenda

in the favor of greater transparency.45 As a result, the final Regulation amounted to an

improvement over the judicially-empowered Code of Conduct already in place, but the

compromise nonetheless reflects the hesitancy of the less-enthusiastic actors, especially

in the broad exceptions to the right of public access.

2.2 FOIAs Background

One need look no further than Isaac Newtons third law of physics46 to understand

the context of the Freedom of Information Acts passage: Congress fashioned the modern

incarnation of FOIA as a sword to slay the combined dragons of Vietnam and Watergate.

After a tumultuous decade in which foreign war and domestic corruption left the

American publics trust in government shattered, FOIA alongside similar statutes such

as the Government-in-the-Sunshine Act47 was held up as a panacea to ensure more

accountable government in the future.

42 TREATY ON EUROPEAN UNION, art. 1.43 Bo Bjurulf and Ole Elgstrm,Negotiating Transparency: The Role of Institutions, 42 J.COMMON MKT.STUD. 249, 253 (2004).44Id.45Id. at 259-60.46 For every action, there is an equal and opposite reaction.47 Congress enacted the Government in the Sunshine Act in 1976; the Act requires meetings of virtually allfederal agencies to be held publicly (unless the meeting falls into one of 10 statutorily-listed exemptions).


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The original Freedom of Information Act was promulgated as a section of the

Administrative Procedure Act in 1966 and signed without controversy by President

Lyndon B. Johnson. Todays more strident form of FOIA, however, dates from a series of

fundamental amendments added in 1974. FOIA, in its first incarnation, was relatively

weak, permitting agencies to drag their feet in releasing documents or charge excessive

fees to those who sought the documents.48 The 1974 Amendments changed FOIA in three

major respects: they (1) shortened the mandatory time limits on agency response from 30

days to 10, (2) authorized courts to substantively review agency decisions to deny

documents, with the power to review relevant documents in camera, and (3) narrowed

the investigatory record exception. The result was a skyrocketing of FOIA requests and

FOIA litigation challenging agency denials, essentially resulting in the recognizable

FOIA that exists today.49 The most significant reforms to FOIA since 1974 came in 1996,when President Bill Clinton signed into law the Electronic Freedom of Information Act

Amendments, which created a category of electronic reading room records, establishing

new obligations for agencies to provide access to documents and records on the World

Wide Web. Today, all U.S. federal agencies have FOIA sites to serve as electronic

reading rooms.

FOIA has not been without controversy, however. President Gerald Ford was so

hesitant about the potential of the 1974 Amendments to reveal information jeopardizing

both national security and internal investigations that he vetoed the bill (Congress

overrode the veto, however, and thus the Amendments became law).50 In a famous

article, then-professor Antonin Scalia labeled the 1974 version of FOIA the Taj Mahal of

the Doctrine of Unanticipated Consequences, decrying the costs to the government to

comply in an expedited time frame with FOIA requests and the ability of parties to use

FOIA to obtain information about third parties, not the government. Corporations quickly

learned that FOIA allowed them to gather information about their competitors that they

could not find anywhere else; lawyers soon found that FOIA requests would result in

48See Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the Perils and Paybacksof Legislating Democratic Values, 33 EMORY L. J. 649, 658 (1984).49Id. at 660.50 H.R. DOC. NO. 93-383. Freedom of Information Act Veto Message from the President of the UnitedStates (Nov. 18, 1974).


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information about adversaries faster than the traditional trial discovery process. 51 A 2001

study showed that, among a representative sample of requests for documents over a six-

month period, only 5 percent of the requests came from journalists, while corporations

and lawyers accounted for 65 percent of the requests, giving credence to the charge that,

rather than being a tool for the average citizen to access an open government, FOIA has

morphed into a tool for corporate espionage and fast-track discovery. 52

Perhaps the greatest unintended consequence of the broad public access rights

accorded through FOIA has been reverse-FOIA litigation. In a reverse-FOIA suit, the

plaintiff seeks to enjoin agency disclosure of a document being sought by another party,

presumably a competitor seeking information about its rival. FOIA itself is silent on the

subject of such lawsuits, but courts have nonetheless recognized a right to seek to enjoin

agency disclosure where disclosure is prevented by statute.53 Nonetheless, agencies arenot required to provide notice to third parties when documents concerning those third

parties have been requested, and so it is often impossible for a third party to know when it

would even be necessary to bring a reverse-FOIA suit.

2.3. Comparing the Statutes

2.3.1 Beneficiaries and Scope

Under both FOIA and Regulation 1049/2001, U.S. and EU citizens can solicit

their respective governments for documents for any reason whatsoever (or presumably no

reason at all). FOIA appears to grant the right of access to generally any person, citizen

and non-citizen alike, while Regulation 1049/2001 limits this right to citizens.

Regulation 1049/2001 grants the right of access to all EU citizens, whether a

natural or legal person, residing or having its registered office in a Member State,

although an institution has discretion to grant access to others as well.54 FOIA, however,

stipulates that agencies must make documents available, upon request, to any person.55

The APA defines person as an individual, partnership, corporation, association, or

public or private organization other than an agency without mention of citizenship

51 Wald, at 666.52 Mark Tapscott and Nicole Taylor,Few Journalists Use the Federal FOIA, Heritage Foundation Report(2001).53See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281 (1979); Family Farms v. Glickman, 200 F.3d 1180 (8thCir. 2000).54 Regulation 1049/2001, art. 2(1).55 5 U.S.C. 552(a)(3)(A) (2005).


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status.56 Federal courts have tentatively agreed with the interpretation that for FOIA

purposes, non-citizens have the right to request documents.57 FOIA itself seems to tacitly

acknowledge the salability of non-citizen requests because it contains a clause by which

national security agencies are forbidden to make available records to foreign government

entities.58

Both laws define document/record very broadly to include nearly every kind of

document or record that could pass through the agency/institution. Regulation 1049/2001

defines document as any content whatever its medium concerning a matter relating to

the policies, activities and decisions falling within the institutions sphere of

responsibility.59 The Regulation covers not only documents drawn up by the institutions,

but alldocuments held, drawn up, or received by the institutions; the Code of Conduct

excluded documents not actually drawn up by the institutions.60 Given the nature of theEuropean Union as a governmental entity that depends in large part on the cooperation

and expertise of its Member States, and the resulting vast number of documents that

originate in Member State governments, this is a marked improvement from the Code of

Conduct.61

FOIA defines record and any term within FOIA used in reference to

information as any information that would be an agency record subject to the

requirements of this section when maintained by an agency in any format, including an

electronic format.62 Nonetheless, the Supreme Court has held that FOIA does not

obligate an agency to obtain and disclose records that are no longer in the agencys

possession.63

56 5 U.S.C. 551(2).57 Neal-Cooper Grain Co. v. Kissinger, 385 F. Supp. 769, 776 (D.D.C.1974) (holding Mexican governmentis a person within the APAs definition). See also Stone v. Export-Import Bank of United States, 552 F.2d132, 136 (5th Cir. 1977).58 5 U.S.C. 552(a)(3)(E).59

Regulation 1049/2001, art. 3(a).60 Regulation 1049/2001, art. 2(3).61 The shift also eliminated what had been a tricky jurisprudential area for European courts, which had triedto define the line between European documents and national documents according to a judicially-interpreted authorship rule. See Case T-188/97, Rothmans v. Commission, 1999 E.C.R. II-2463 [1999];Case T-123/99, JT Corporation v. Commission, 2000 E.C.R. II-3269 [2000]; Case T-47/01, Co-Frutta v.Commission, 2003 E.C.R. II-16 Oct. [2003]; Case C-41/00 P, Interporc II v. Commission, 2002 Opinion of12 March [2002].62 5 U.S.C. 552(f)(2).63 Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980).


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Both laws provide that partial access to documents is possible when only part of

the document is caught under one or more of the exceptions. FOIA mandates that any

reasonably segregable portion of a record be provided to the applicant after deletion of

the exempt portions.64 Likewise, Regulation 1049/2001 states that if only parts of the

requested document are covered by an exception, the remaining parts shall be released. 65

Regulation 1049/2001 refers only to the three main EU institutions: the

Commission, the Council and the Parliament. Excluded from the Regulations reach are

the European Court of Justice, the Court of Auditors, the Economic and Social

Committee, the Committee of the Regions, and the European Central Bank. Although

some of these other units, notably the ECB, have adopted voluntary rules on public

access and the Ombudsman has argued that they have a legal obligation to adopt access

rules, the fundamental EU legislation on public access to documents remains silent on theresponsibility of these other governmental actors. Moreover, as Harlow notes, the IGCs

themselves are neither widely consultative nor especially transparent, deficiencies which

are beginning to be seen as threatening its legitimacy.66 Further troubling is the lack of

any clarity as to what constitutes the institutions themselves. Are the comitology

committees part of the Commission? Of the Council? Does the Regulation reach

COREPER? Does the Regulation reach the EU Presidencies headed every six months by

a Member State? Agencies that report to the Commission and the Council? Neither the

Regulation itself, nor its predecessor Code of Conduct, gives any indication. The Court of

First Instance, under the 1993 Code, has ruled that committees established to advise the

Commission on the exercise of its powers the comitology committees have to be

regarded as part of the Commission for the purpose of public access. 67

FOIA, meanwhile, extends to all administrative agencies, defined specifically

(and more broadly than the general definition of agency in the rest of the APA) as any

executive department, military department, Government corporation, Government

controlled corporation, or other establishment in the executive branch of the Government

64 5 U.S.C. 552(b).65 Regulation 1049/2001, art. 4(6).66 Harlow, at 28.67 Case T-188/97, Rothmans International BV v. Commission, 1999 E.C.R. II-2463 [1999].


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(including the Executive Office of the President), or any independent regulatory

agency.68

2.3.2. Public Journal and Register Requirement.

Both the European and American laws create categories of documents that must

be published in a timely and accessibly manner. Furthermore, both laws demand that

each agency/institution create an electronic register of documents to more easily

accommodate public access. FOIA establishes a hierarchy of documents, the most

important of which must be available by electronic means. Regulation 1049/2001

mandates each institution to create a central, electronic register of documents, under

which each document must be labeled with a reference number, its subject matter, and the

date on which it was received or drawn up.69 The Regulation recommends that the

institutions provide (they shall make available as far as possible) documents directlyin electronic form or through the register.70 The Regulation particularly recommends that

legislative documents, those drawn up in the process of the adoption of EU legislation

should be directly accessible.71 FOIA mandates that agencies provide a series of

statements in the Federal Register, including a description of its organization, its general

course and method, rules of procedure, and substantive rules of general applicability. 72 It

also requires that each agency provide a electronic register containing at least the

agencys final opinions (including concurring and dissenting opinions), statements of

policy and interpretation, and administrative staff manuals and instructions.73

2.3.3. Applications for Documents.

The process by which applicants request documents is quite basic under both

jurisdictions. Filing a request can be done in minutes and without the aid of legal counsel.

Regulation 1049/2001 allows applications for access to a document in any written form

(including electronic form).74 The applicant need not provide a reason for the documents

sought.75 Likewise, under FOIA, an applicant may request documents that are not already

68 5 U.S.C. 552(f)(1).69 Regulation 1049/2001, art. 11.70 Regulation 1049/2001, art. 12(1).71 Regulation 1049/2001, art. 12(2).72 5 U.S.C. 552(a)(1).73 5 U.S.C. 552(a)(2).74 Regulation 1049/2001, art. 6(1).75Id.


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publicly available by simply filing an request which both (1) reasonably describes the

records and (2) is made in accordance with the agencys particular rules on the timing,

place, procedures, and potential fees involved.76

Both regulations also prescribe strict time limits in which the agency/institution

must respond to the applicant with either a notice of compliance or refusal: 15 days in the

European Union and 20 days in the United States.77 Both regulations, however, also

contain clauses allowing the agencies to take more time for extraordinary or unusual

circumstances. Thus, Regulation 1049/2001 in the case of an application relating to a

very long document or to a very large number of documents, allows for an extension of

15 additional days.78 FOIA sets out a lengthy definition of the circumstances constituting

unusual circumstance, including: (1) the need to search for records in field facilities, (2)

a voluminous amount of records, (3) and the need for consultation with anotheragency.79 Under no circumstances, however, may that period be extended for more than

10 working days.80 If the agency fails to comply with the applicable time limit provisions,

the applicant shall be deemed to have exhausted his administrative remedies.81 Thus,

under both FOIA and the European regulation, the agency/institution has a maximum of

30 days to respond to the application by consenting to or denying the request. In addition

to this window of flexibility, however, the European Regulation also allows for the

institution to confer informally with the applicant in the case of either a very long or a

very large number of documents, with a view to finding a fair solution.82 This provision

can either be read, at its most benign, a cooperative and informal mechanism for limiting

the waste of precious EU resources, or at its most sinister, a complicit acknowledgement

that institutions can use the pressure (of, for example, denying one part of a very large

document request) against its most tenacious watchdogs. Given the multiple avenues of

review available to the applicant (including further appeals to the institution, consultation

with the Ombudsman, and recourse to the judicial system), it seems unlikely that

76 5 U.S.C. 552(a)(3)(A).77 5 U.S.C. 552(a)(6)(A); Regulation 1049/2001, art. 7(1).78 Regulation 1049/2001, art. 7(3).79 5 U.S.C. 552(a)(6)(B)(iii).80 5 U.S.C. 552(a)(6)(B)( i).81 5 U.S.C. 552(a)(6)(C)(i).82 Regulation 1049/2001, art. 6(3).


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institutions will be able to pressure the most exhaustive applicants into ceding their

public access rights.

If the agency/institution determines that the applicant should receive the

documents, both laws provide for the levying of reasonable fees. Regulation 1049/2001

allows the institution to charge the applicant for the cost of producing and sending

copies, so long as the charge doesnt exceed the real cost of producing and sending those

copies; notably, the Regulation states that on-the-spot consultation, direct electronic

access, and copies of less that 20 A4 pages shall be free of charge. 83 Likewise, FOIA

provides a hierarchy of reasonable standard charges for (1) document duplication, (2)

document search, and (3) document review. When records are requested for commercial

use, all three costs may be charged to the applicant; when records are requested by an

educational or noncommercial scientific institution, whose purpose is scholarly orscientific research; or a representative of the news media, only costs for document

duplication may be charged; and when the applicant falls into neither category, costs may

be charged for document duplication and search, but not review.84 Although the schedule

of fees may seem a trite issue, the outrageous levying of charges on the part of

government agencies in the first pre-amendment days of FOIA was a major impediment

to document access. The power to set high fees for access to documents is the power to

deny those documents altogether, and the resulting document access laws in both the

United States and the European Union reflect this reality.

2.3.4. Appeals from Denials.

If the agency/institution decides that the requested document(s) fall into one of the

statutorily defined categories of exceptions and thus denies access to the document(s), the

applicant nonetheless has several options available before her remedies are exhausted.

Regulation 1049/2001 allows the applicant to make a confirmatory application within

15 days of a denial or partial denial to ask the institution to reconsider its position.85

Again, the institution has 15 days in which to grant access to the documents and notify

the applicant or deny the documents and provide reasons for the denial to the applicant.86

83 Regulation 1049/2001, art. 10(1).84 5 U.S.C. 552(a)(4)(A)(ii).85 Regulation 1049/2001, art. 7(2).86 Regulation 1049/2001, art. 8(1).


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The applicant may then make a complaint to the Ombudsman, per Article 195 EC, or

institute court proceedings against the institution, per Article 230 EC. Under FOIA, the

agency must provide reasons for the denial in its timely response, along with notification

of the right to appeal to the head of the agency.87 The process for appeals to the agency

head is much the same as the initial request procedure: the agency head has 20 working

days to respond to the appeal; again, if the request is denied, the agency head must notify

the person of the provisions for judicial review.88

The Ombudsman plays an important role in the European context for which there

is no analog in the American document-access process. More fundamental to the

development to a real freedom-of-information regime in the European Union has been the

fact that Jacob Sderman, the presiding Ombudsman during the adoption and

implementation of both Article 255 EC and Regulation 1049/2001 was Swedish, andamong the strongest proponents of open government. Indeed, Sderman engaged then-

Commission President Romano Prodi in a tense, high-profile argument during the

consideration of the public access regulation, dismissively criticizing the proposed

regulations gaps. Later in December 2001, Sderman filed a report to the European

Parliament concerning a complaint by Statewatch; the report took the Council to task for

not releasing a complete list of all of its documents in its register (with the logical

conclusion that citizens will not be able to request documents if they do not know those

documents even exist!).

2.3.5. Judicial Review.

Both the U.S. federal district court system and the European courts can receive

complaints related to the denial of access to government records. In Europe, Article 230

of the Treaty Establishing the European Community governs standing before the

European Court of Justice and the Court of First Instance. Any natural or legal person

may institute proceedings against a decision addressed to that person or against a

decision which, although in the form of a regulation or a decision addressed to another

person, is ofdirect and individual concern to the former [emphasis added].89 Although a

long and complicated body of case law exists defining direct and individual concern,

87 5 U.S.C. 552(a)(6)(A)(i).88 5 U.S.C. 552(a)(6)(A)(ii).89 EC TREATY, art. 230.


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certainly any denial of an individuals application for access to documents would fall in

the first category of decisions addressed to that person, and thus provide standing.

Regulation 1049/2001, however, scarcely mentions judicial review of institution denials

of records.

FOIA expressly provides the terms of judicial review and stresses the role of the

judiciary as a check against governmental secrecy by enjoining the agency from

withholding records and order agencies to produce improperly withheld documents. From

the outset, FOIA requires de novo review by the court, and thus the court need not

(indeed, shall not) give deference to the agencys decision.90 FOIA gives the court the

power to examine all the relevant records at issue in camera to review whether they were

properly withheld from public view.91 Within the context of litigation, the courts have

created an additional requirement for administrative agencies the Vaughn index tostreamline potentially vast numbers of complex documents.92 Agencies must itemize and

describe the records that it has denied and provide the reasons it has chosen to deny those

records. In selecting a forum, the applicant can choose among several jurisdictions: (1)

the district in which the complainant resides, (2) the district in which the complainant has

his principal place of business, (3) the district where the agency records are situated, or

(4) the District of Columbia.93 FOIA also gives the court powers to assess against the

government reasonable attorney fees and other litigation costs, a marked departure

from the each-side-pays standard in the United States.94 Moreover, if the court determines

that the circumstances of the denial raise questions as to whether agency personnel acted

arbitrarily or capriciously in denying the records, a Special Counsel shall be appointed

to determine whether disciplinary action is required; the agency is compelled to accept

the Special Counsels findings and implement the Special Counsels recommendations.95

2.4. Comparing the Exceptions

None of the foregoing procedural tools simplified applications, ample

opportunity for appeals, strident judicial review, electronic registers of the most vital

90 5 U.S.C. 552(a)(4)(B).91Id.92 The Vaughn index takes its name from the D.C. Circuit Court of Appeals decision in which it was firstrequired, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied415 U.S. 977 (1974).93 5 U.S.C. 552(a)(4)(B).94 5 U.S.C. 552(a)(4)(E).95 5 U.S.C. 552(a)(4)(F).


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documents are meaningful if there exist wide discretion to exempt documents from the

general right to access on the basis of specific, statutory exemptions. Public access to

information is one of several government objectives; when openness and transparency

conflicts with legitimate state objectives, including national security, personal privacy,

and trade secret protection, legislators must sometimes draw lines to prioritize those

objectives over freedom of information. The breadth of the exceptions to the freedom-of-

information norm, as well as the agency/institutional discretion to invoke those

exceptions, can and does vary significantly from government to government.

Moreover, it is in the hazy space of exceptions that FOIA and Regulation

1049/2001 depart most sharply. Although both the U.S. federal appellate courts and the

European courts have narrowly interpreted the exceptions in FOIA and Regulation

1049/2001, FOIAs exceptions start out much more narrowly than those in Regulation1049/2001.96 The result is that a significantly wider portion of documents can be shielded

from public view in the European Union. No one less than Sderman, the EU

Ombudsman himself, concluded in an article in The Wall Street Journal Europe that the

list of exceptions as drafted was without precedent in the modern world, and that there

probably wont be a document in the EUs possession that couldn't legally be withheld

from public scrutiny.97 Furthermore, the new Regulations list of exceptions, if anything,

is broader than the exceptions under the Code of Conduct that governed access to

documents in the 1990s. One of the tradeoffs for a stronger, treaty-based right to public

access may be an increased number of documents to which that right cannot be applied.

One ray of hope for historians, at least, is that the EU exceptions apply only for a

maximum period of 30 years (although the period may apply longer in the case of privacy

or commercial interests, and in the case of sensitive documents).98

Discretion to disclose is also a key difference. In many cases, Regulation

1049/2001 requires the institution todeny disclosure if the document falls under a certain

exemption in Article 4. Under FOIA, agencies are not required to refuse access to a

96 The Court of First Instance has repeatedly stressed the importance of strictly interpreting and applyingthe exceptions. See Case T-105/95, World Wildlife Fund v. Commission, 1997 E.C.R. II-313 [1997](establishing that the 1993 Code of Conduct rules on access were binding upon the Commission).97 Jacob Sderman, xxxxxxxxx.98 Regulation 1049/2001, art. 4(7).


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document if it falls into one of the nine exceptions; agencies always remain free to grant

access to the record.

2.4.1. Public Interest Exception.

Perhaps the greatest difference between FOIA and Regulation 1049/2001 is that

the American statute contains a national security exception while the European

Regulation contains a much broader public interest exception. The Regulation mandates

that the institutions refuse access to documents where disclosure would undermine the

protection of the public interest in four areas: (1) public security, (2) defence and

military matters, (3) international relations, and (4) the financial, monetary or economic

policy of the Community or a Member State.99 Prior case law under the 1993 Code of

Conduct has settled that this list of public interest objectives is exhaustive (the Council

had previously argued that it was not).100 Nonetheless, the Regulation expands that list toinclude not only security, defence, and international relations, but replaced the protection

of monetary stability with significantly wider area of financial, monetary or economic

policy of either the EU or its constituent nations. Furthermore, its completely unclear

what constitutes the public interest is the public interest whatever the Council or the

Commission determines it to be? The European Court of Justice? Each Member State?

FOIA allows the President, by Executive order, to keep secret documents when it

is in the interest of national defense of foreign policy and the documents are properly

classified pursuant to that Executive order.101 This exception is doubtlessly broad, and

perhaps necessarily so given the grave responsibility of a state to keep its citizens safe,

but is clearly much narrowly tailored in both substantive scope and procedural criteria

than the public interest exception of Regulation 1049/2001.

Furthermore, European courts have deferred to the institutions judgment in the

realm of this exception, limiting the power of judicial review over decisions on public

access. InHautala v. Council, under the old 1993 rules, the Court of First Instance ruled

that in case of documents related to international relations, the courts role must be

limited to verifying whether the procedural rules have been complied with, the contested

decision is properly reasoned, and the facts have been accurately stated, and whether

99 Regulation 1049/2001, art. 4(1)(a).100 Case T-610/97R,H. Norup Carlsen and others v. Council, 1998 E.C.R. II-485 [1998].101 5 U.S.C. 552(b)(1).


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there has been a manifest error of assessment of the facts or a misuse of power.102 The

Courts justification is that Title V of the Treaty on European Union confers political

responsibilities on the Council in such a way that limits the role the courts have in

making decisions about international relations. The resulting deferential review is

certainly not de novo; it relates to the kind of arbitrary and capricious review employed

by U.S. courts in deferring to most agency interpretations, not the substantive review

FOIA deploys for protecting the right to access to documents.

2.4.2. Privacy Exception.

As important as security and military policy are to the public interest, the

obligation of the government to the individuals privacy and integrity is similarly vital to

private interest, and both FOIA and Regulation 1049/2001 reflect this with strong

guarantees of privacy for personal data. Regulation 1049/2001 instructs institutions torefuse access where disclosure would undermine privacy and integrity of the

individual, especially in accordance with other Community legislation regarding the

protection of personal data.103 This is functionally similar to the 1993 Code of Conducts

exception for the protection of the individual and of privacy. To understand the extent

of the exception, however, one must refer to Regulation 45/2001 on the protection of

individuals and personal data, which defines personal data as:104

Any information relating to an identified or identifiable natural person...; anidentifiable person is one who can be identified, directly or indirectly, inparticular by reference to an identification number or to one or more factorsspecific to his or herphysical, physiological, mental, economic, cultural or socialidentity [emphasis added].

This definition is the same as used in a previous Directive105 on personal data from

1995.106 Notably, the Regulation on personal data also generally prohibits (subject to five

102

Case T-14/98, Hautala v. Council, 1999 ECR II-2489 [1999]. See also Case T-304/99, Mattila v.Commision and Council, 2001 ECR II-2265 [2001].103 Regulation 1049/2001, art. 4(1)(b).104 Regulation (EC) No. 45/2001 of the European Parliament and of the Council on the protection ofindividuals with regard to the processing of personal data by the Community institutions and bodies and onthe free movement of such data (18 December 2001), art. 2(a).105 Regulations and Directives are two of the five different kinds of European Community legislation (theother three are Decisions, Recommendations, and Opinions). Per Article 249 EC, regulations are binding intheir entirety, of general application, and are directly applicable, whereas Directives are binding only in thegeneral result, of application only to the Member States to whom they are addressed, and require


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exceptions, including personal express consent) the processing of personal data revealing

racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union

membership, and of data concerning health or sex life.107 These principles give

substance to the privacy exception in Regulation 1049/2001, which now conceivably

warrants the denial of any documents sought where the release of those documents would

undermine the protection of the individuals physical, physiological, mental, economic,

cultural or social identity.

FOIA similarly provides an exception for personnel and medical files and similar

files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.108 Although the statute doesnt refer to other legislation as with Regulation

1049/2001, the Privacy Act sets out further protections for individual privacy, mostly

complementary with FOIA (but not always).1092.4.3. Police/Investigation Exception.

Regulation 1049/2001 contains an exception where disclosure would undermine

the protection of the purpose of inspections, investigation and audits.110 The Code of

Conduct included an exception for inspections, investigations, etc., but included this

alongside public security, international relations, and monetary stability in the general

protection of the public interest exception. The Court of First Instance heard several

cases on the meaning of inspections and investigations under the 1993 Code. For

example, it ruled that a draft of a reasoned opinion drawn up during an infringement

procedure fell within the scope of the analogous exception for inspections,

investigations, etc. under the 1993 Code of Conduct,111 that documents relating to a

Commission investigation about animal health in the Netherlands were properly excluded

under the inspections, investigations, etc. category,112 and that the Commissions

implementing legislation on the part of Member States. Thus, Regulations are viewed as particularly

stronger legislation.106 Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals withregard to the processing of personal data and on the free movement of such data (24 October 1995), art.2(a).107 Regulation 45/2001, art. 10(1).108 5 U.S.C. 552(b)(6).109 5 U.S.C. 552a(b), (c).110 Regulation 1049/2001, Article 4(2).111 Case T-309/97, Bavarian Lager v. Commission, 1999 E.C.R. II-3217 [1999].112 Case T-20/99, Denkavit v. Commission, 2000 E.C.R. II-3011 [2000].


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reasoned opinions sent to Italy during an infringement proceeding were also properly

denied.113

FOIA exempts documents complied for law enforcement purposes, but only

under six tailored conditions: when access to those documents (1) could reasonably be

expected to interfere with enforcement proceedings, (2) would deprive a person of a right

to a fair trial or an impartial adjudication, (3) could reasonably be expected to constitute

an unwarranted invasion of personal privacy, (4) could reasonably be expected to

disclose the identity of a confidential source, (5) would disclose techniques and

procedures for law enforcement investigations or prosecutions, or (6) could reasonably be

expected to endanger the life or physical safety of any individual.114

2.4.4. Internal Deliberations Exception.

Regulation 1049/2001 provides for great protection of documents where the finaldecision has not been taken or where access might otherwise impair institutional

deliberations. Access to documents (1) drawn up for internal use or (2) received by an

institution where a decision has not been taken, shall be refused if disclosure of the

document would seriously undermine the institutions decision-making process, unless

there is an overriding public interest in disclosure (emphasis added).115 Furthermore,

access may be denied to documents containing opinions for internal use as part of

deliberations and preliminary consultations within the institution shall be refused even

after the decision has been taken, if disclosure would seriously undermine the decision-

making process, subject once again to an overriding public interest balancing test.116

The gaping width of this exception is breathtaking. By contrast, Swedens

freedom of information law states that a document is deemed to have been received by a

public authority (and thus obtainable by the public) when it has arrived at the authority

or is in the hands of a competent official.117 Furthermore, a document is deemed to have

been drawn up by a public authority when it has been dispatched, or if not dispatched,

when the matter as been finally settled by the authority, when the document has been

113 Case T-191/99, Petrie v. Commission, 2001 E.C.R. II-3677 [2001].114 5 U.S.C. 552(b)(7).115 Regulation 1049/2001, art. 4(3).116Id.117 FREEDOM OF THE PRESS ACT, art. 6.


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finally checked and approved by the authority, or has otherwise received final form. 118

Thus, there are many more opportunities in the decision-making process and when

documents become obtainable, such as when a document is sent from one agency to

another. Conversely, all documents, even final documents, are protected under

Regulation 1049/2001 until the institution has made a final decision, and those

documents, if the institution deems them to undermine the decision-making process,

might still be kept secret even afterthe decision has been taken!

A related exception in the Regulation relates to documents that would undermine

the protection of court proceedings and legal advice.119 The Court of First Instance has

ruled that this exception covers only those documents that are drawn up for a specific

case.120

FOIA, in contrast, does not even list internal deliberation within its exceptions. Itdoes, however, provide for an exception where documents are related solely to the

internal personnel rules and practices of an agency, and for inter-agency or intra-

agency memorandums or letters which would not be available by law to a party other

than an agency in litigation with the agency.121 Moreover, the Supreme Court

significantly narrowed the scope of the internal personnel rules exception in 1976 when it

allowed researchers at the New York University School of Law to obtain case summaries

of U.S. Air Force disciplinary proceedings (with references to actual identities

redacted).122

2.4.5. Commercial Interests Exception.

Regulation 1049/2001 instructs the institutions to refuse access where disclosure

would undermine the protection of commercial interests of a natural or legal person,

including intellectual property.

Of the nine exceptions in FOIA, three of them involve the protection of corporate

data. The most central exception excludes documents containing trade secrets and

commercial or financial information obtained from a person and privileged or

118 FREEDOM OF THE PRESS ACT, art. 7.119 Regulation 1049/2001, art. 4(2).120 Case T-83/96, Van der Wal v. Commission, 1998 E.C.R. II-545 [1998].121 5 U.S.C. 552(b)(2), (5).122 Department of the Air Force v. Rose, 425 U.S. 353 (1976).


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confidential.123 The D.C. Circuit has interpreted this exception to include only those

documents that would causes substantial harm to the competitive position of the

corporation trying to protect information about its business.124 The D.C. Circuit further

defined trade secrets in the FOIA context in a later case as a secret, commercially

valuable plan, formula, process, or device that is used for the making, preparing,

compounding, or processing of trade commodities and that can be said to be the end

product of either innovation or substantial effort.125

It is the narrow interpretation of this and the privacy exception that has made

FOIA such a boon for corporations and lawyers: FOIA was promoted as a boon to the

press, the public interest group, the little guy; they have been used most frequently by

corporate lawyers.126 The narrow interpretation has also led to the phenomenon of

reverse-FOIA litigation. Thus, in Chrysler Corp. v. Brown, the Supreme Courtrecognized a right to bring suit in federal court where an agency discloses information

that is expressly prohibited by a statute (FOIA does not count, however, because agencies

always maintain discretion to release documents that nonetheless fall into one or more

exceptions). In Chrysler, the plaintiff relied on the Trade Secrets Act to enjoin the release

of information about its business to third-party applicants; the Court upheld the plaintiffs

right.127

The European Regulation attempts to head off the reverse-FOIA problem by

requiring notice of third-parties; when a third-party document is requested, the institution

must consult that party with a view to assessing whether an exception is applicable,

unless it is already clear that the document should or should not be released.128 This

solves the potential notice problem in any reverse-FOIA litigation in the United States

(how will a party know to proceed against the agency is she does not know information is

being requested?). The third-party notice requirement also goes far in reducing tension by

creating a formal consultation with the third-party, and giving the third-partys view at

123 5 U.S.C. 552(b)(4).124 National Parks & Conservation Assn. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).125 Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983).126 Scalia, at 16.127 441 U.S. 281 (1979).128 Regulation 1049/2001, art. 4(4).


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least some weight in the institutions final decision to grant or deny access to the

document.

In its two final exceptions, FOIA contains very specific exemptions for corporate

data. It excludes documents contained in or related to examination, operating, or

condition reports prepared by, on behalf of, or for the use of an agency responsible for the

regulation or supervision of financial institutions, the purpose of which is to protect

banks and other financial institutions. 129 Finally, FOIA excludes documents containing

geological and geophysical information and data, including maps, concerning wells.130

2.4.6. Sensitive Documents.

Outside of the exception for public security and the public interest, both laws lay

out special rules for the most sensitive documents, often those which have to do with the

most secret aspects of national security and foreign policy.Regulation 1049/2001s Article 9 lays down separate rules for those documents

classified as trs secret/top secret, secret or confidentiel. Applications for such

documents must be handled only by those persons who have a right to acquaint

themselves with those documents.131 Furthermore, such documents shall be recorded in

the register or released only with the consent of the originator, thus giving the originator a

veto power over all sensitive documents.132 Article 9 also gives each institution the

power to determine its own rules concerning sensitive documents. Article 9 is essentially

a codification of the 2000 Solana decision, which first limited access to sensitive

documents.

FOIA also excludes from the freedom-of-information regime those records

maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or

counterintelligence, or international terrorism, when the existence of such records is

classified information.133 The international terrorism wording, not surprisingly, was

added only in 2002; this special exclusion of documents has had a chilling effect on

access to documents that may shed light on how the government has proceeded in

fighting the war against terrorism, both at home and abroad. In a recent case,

129 5 U.S.C. 552(b)(8).130 5 U.S.C. 552(b)(9).131 Regulation 1049/2001, art. 9(2).132 Regulation 1049/2001, art. 9(3).133 5 U.S.C. 552(c)(3).


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2.4.7. Member State Veto.

The international nature of the European Union, and the structural differences

between U.S. administrative agencies and supranational governance mean that there will

invariably be differences between the resulting freedom-of-information regimes.

Nowhere is this difference more manifest than the veto Member States have within the

European Union to deny access to documents they have provided to EU institutions.

Contrary to the 1993 Code of Conduct, the new Regulation extends to documents held,

and not just drawn up, by the institutions.134 Declaration No. 35, which was attached to

the Amsterdam Treaty at the time of its conclusion on French insistence, specifically

stated that the resulting Community legislation on public access would allow a Member

State to request the Commission or the Council not to communicate to third parties a

document originating from the State without its prior agreement.Thus, Regulation 1049/2001 allows Member States to request an institution not

disclose a document originating from the Member State without its prior agreement,

largely mirroring the language in Declaration No. 35. But what does a request mean? Is a

Member States request absolutely controlling? The Court of First Instance has held

interpreted this as more or less an absolute veto. InIFAW v. Commission, the Court ruled

that Article 4(5) of the Regulation lays down a lex specialis to govern the Member States,

expressly holding that a request constitutes an instruction to the institution not to

disclose to document in question.135 Furthermore, the Member State is under no

obligation to provide reasons for vetoing a document request.136 In a case last year, the

Court ruled that documents drawn up on behalf ofMember States are also protected by

the Member State veto.137 In the same case, the Court refused to allow partial access

when a Member State has vetoed the release of a document.138

Commentators have predictably blasted the veto as a legal mechanism through

which Member States can disregard with impunity the spirit of open government and

transparency, resulting in the hollowing out of the public right to document access. They

predict that Member States with strong traditions of freedom of information, such as the

134 Regulation 1049/2001, art. 2(3).135 Case T-168/02, IFAW v. Commimssion 2004 ECR II-30 Nov [2004].136Id.137 Case T-187/03, Scippacercola v. Commission 2005 ECR II-17 March [2005].138Id.


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Netherlands and the Scandinavian countries, will allow more access, while less

transparent countries like Germany, France, and Italy will be less forthcoming. Article

4(5), de Leeuw writes, clearly shows that the citizens right of access in not seen as

fundamental as the principle that all documents are accessible is not followed.139

But could it have been any other way? As Bjurulf and Elgstrom note, those

favoring a stronger right of public access were in the minority at both the IGC resulting in

Article 255 EC and the negotiations over Regulation 1049/2001 during first the French,

and then the Swedish EU Presidencies. In the context of EU enlargement, Frank

Schiffelfennig has suggested that despite the fact that enlargement was a sure loser for the

existing EU Member States, their previous rhetoric about the role of Eastern Europe

trapped them effectively shamed them into enlargement, notwithstanding the

political and economic drawbacks of extending membership to 10 new countries with farlower economic activity and nascent legal and democratic institutions.140 Perhaps, in a

similar way, the majority was shamed into accepted the Article 255 right to public access;

after all, it is politically untenable to oppose freedom of information and transparency.

Thus, the majoritys power lied not in its power to oppose the right, but in significantly

hollowing and weakening the content of the right to public access. In any case, the

resulting Regulation and its subsequent interpretation leaves Member States undoubtedly

in charge of which of its documents can be released to public inquiry.

2.4.8. Specifically Exempted by Statute.

FOIA contains one more exception that which allows for the denial of agency

records when they are specifically exempted from disclosure by statute.141 Congress

amended this exception in 1976 to require that such statutes must (1) require the matters

be withheld from the public in such a manner as to leave no discretion on the issue or (2)

establish particular criteria for withholding the records, or refer to particular types of

matters that may be withheld. Among the most important of these statutes include the

Privacy Act142, the Immigration and Nationality Act143, statutes regarding Federal Trade

139 Magdalena Elisabeth de Leeuw, The Regulation on public access to European Parliament, Council, andCommission documents in the European Union: are citizens better off?, 2003 E.L.REV. 324, 337-38.140 Frank Schimmelfennig. The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern

Enlargement of the European Union, 55 INTL ORG. 44-80.141 5 U.S.C. 552(b)(3).142 5 U.S.C. 552a.

7/29/2019 Ever Closer Transparency: Comparing the European Regulation on Public Access to Documents with