The Pan-European General Principles on Freedom of Information and Transparency
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on freedom of Information and Transparency
III. Limits to Freedom of Information and Transparency
IV. Access to One’s Own Data and 'Egoistic' Use on freedom of Information Rights
V. From Freedom of Information to Open Government Data and Open Government?
I. Scope of the Pan-European General Principles on freedom of Information and Transparency
The scope of application of the pan-European general principles on freedom of information and transparency should be delimited from the scope of application of other pan-European general principles as follows:
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The right to access to information and data of parties of administrative procedures is a specific issue related to individual rights in administrative procedures (cf. Principle II of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities - for the pan-European general principles in this regard click here). Thus, it should in general not be considered as an element of the pan-European general principles on freedom of information and transparency.
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The right to access to information and data of parties of administrative court procedures is a specific issue related to the right to be heard in administrative court procedures (cf. Principle No. 4 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts - for the pan-European general principles in this regard click here). Thus, these issues should in general not be considered as an element of the pan-European general principles on freedom of information and transparency.
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The pan-European general principles of data protection in the public sector deal with the protection of the indivduals with regard to the processing of their personal data by public authorities (for these principles click here). However, the protection of personal data with regard to the disclosure of personal data by public authorities to the public, other individuals or private bodies, either upon request or as the result of an active dissemination policy (open government) is a matter of the pan-European general principles on freedom of information and transparency (cf. infra IV 4). Moreover, the right to access to 'one's own data' held by public authorities (cf. Article 8 b of 'Convention 108') can be used not only as an instrument of the ‘data subject’ to check compliance with the obligations arising from 'Convention 108'. This right can also be used by the ‘data subject’ to gain access to information held about him or her for any other reason. In this respect it can be considered as an element of transparency and as a right stemming from Article 8 ECHR in the case law of the ECtHR (cf. infra IV 3).
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The pan-European general principles on freedom of information and transparency have only a factual link with the pan-European general principles on digitalisation of public administration and e-Government (for these principles click here): Internet and electronic communication facilitate dissemination of (official) documents and the access to data and can therefore be used to create transparency through an active communication policy and an open government strategy. Digitalisation can, thus, be a tool to promote transparency, but creating transparency is only one 'public service' that can be provided by the means of electronic government.
II. Freedom of Information and Transparency as a Pan-European General Principle: Foundation, Notion and Functions
1. Current sources of the pan-European general principles on freedom of information and transparency
2. Case law of the ECtHR on freedom of information
3. Functions of the pan-European general principles on freedom of information and transparency
1. Current sources of the pan-European general principles on freedom of information and transparency
d) Council of Europe Convention on Access to Official Documents (CETS No. 205)
a) Article 10 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 10 - Principle of Transparency
(1) Public authorities shall act in accordance with the principle of transparency.
(2) They shall ensure that private persons are informed, by appropriate means, of their actions and decisions which may include the publication of official documents.
(3) They shall respect the rights of access to official documents according to the rules relating to personal data protection.
(4) The principle of transparency does not prejudice secrets protected by law."
See the discussion of this article in Meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para. 134 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
The meaning of Article 10 of Recommendation CM/Rec(2007)7 is outlined in CoE (ed.), The administration and you (2nd edition 2018), pp. 19 f.
"Principle 6 – Transparency
Public authorities shall allow everyone access to official documents held by them. Access shall be granted without discrimination. Public authorities also have a duty to provide information about their work and decisions, and this duty extends to the publication of official documents.
[...]
Commentary
The principle of transparency ensures that the work of public authorities and their officials is conducted openly. This strengthens public trust and the protection of rights of individuals. Moreover, transparency encourages participation. It is generally recognised that democracies can function more effectively when the public is fully informed about issues relevant to public life. An informed public is better placed to participate in decisions and policies of public authorities, and to accept and adhere to them [...]. Public authorities too will benefit from feedback received from the public. So it is desirable that public authorities allow open access to records, they hold, subject to unavoidable exceptions and limitations.
There is no positive obligation in international law on public authorities to disseminate information to the public. As indicated above, they should be encouraged to provide as much information on their decisions as they can.
Rules on access to official documents must respect the rights to privacy and the protection of personal data, particularly data held in digital or electronic files [...].
Information should be supplied by a public authority within a reasonable period of time. Obviously, very numerous requests for information from the public can entail a considerable workload for public officials. The processing of requests can result in delays incompatible with good and efficient administration. The principle factors for assessing what is a reasonable period of time include the nature and volume of information to be retrieved and provided. The means by which information is provided may be either oral or written. The inspection of documents and files should also be allowed. The fact that public authorities charge a fee to recover the costs of providing the information requested (copying, printing, mailing, etc.) is compatible with the principle of transparency and that of access developed in Principle 8 below.
Refusal of access to official documents may be justified by a public authority in relation to certain kinds of internal documents, such as personal documents exchanged within the authority or documents prepared as internal working papers. Every working environment, including that of public authorities, has a "private sphere" in which work is done in a rather informal way and which has to be protected.
Higher standards on public access to official documents can be found in the Council of Europe Convention on Access to Official Documents (CETS No. 205). This convention has yet to enter into force."
b) Principle 6 of Recommendation CM/Rec(2023)5 of the Committee of Ministers to member States on the principles of good democratic governance
Appendix to Recommendation CM/Rec(2023)5 Principles of good democratic governance
"2. Principles
The observance of the highest standards of public ethics and integrity in the exercise of power and public responsibilities
[...]
Principle 6 – Openness and transparency
Openness and transparency should be ensured, by making the decision-making processes of government, public institutions and public officials publicly available and accessible – subject to the limitations set down in law, necessary in a democratic society and proportionate to the aims such limitations seek to protect – including by utilising, as appropriate, modern digital tools."
Explanatory Memorandum (drafted by the CDDG (CM(2023)96-addfinal) of 6 September 2023)
"Principle 6 – Openness and transparency
Openness and transparency should be ensured, by making the decision-making processes of government, public institutions and public officials publicly available and accessible – subject to the limitations set down in law, necessary in a democratic society and proportionate to the aims such limitations seek to protect – including by utilising, as appropriate, modern digital tools.
37. The principle makes it clear that the work of government, public institutions and processes concerning policy and decision-making is taking place in an open manner, on the basis of rules regulating the statute of information held by public institutions. Webpages, Internet-platforms, social media, e-mail correspondence and newsletters, public broadcasting of elected council deliberations via Internet channels are just some examples of how technologies can be used to ensure a culture of openness and active communication, both for the delivery of public information and services, and to support a culture of democratic participation. As pointed out in the CDDG’s Study on the impact of digital transformation on democracy and good governance (July 2021), "individuals are willing to engage in the public sphere. Digital technologies provide additional opportunities to express this engagement: citizens participate in online conversations, consultations and deliberations; contribute online to causes they support, including financially; and share their input through digital platforms that help hold public institutions to account."
38. Access to information held by public institutions would need to be regulated by adequate and consistent laws and regulations dealing with the management of information and requests for information, criteria for which access to information and documents held by public authorities can be denied, classification and declassification procedures etc. The Council of Europe Convention on Access to Official Documents (CETS No. 205) is a major reference instrument in this context.Principle 6
Compliance with this principle would mean that:
- Government and public institutions actively communicate information in an inclusive and effective manner, providing for: clarity of what information is available and how and where it can be located; designing information and services according to users’ needs; ensuring that information is correct, authentic, and up to date; and that such services are secure.
- Freedom of information legislation is in place, providing for clear and effective procedures to enable the public to solicit information and documents held by public institutions, including a limited number of circumstances where access can be denied.
- Information on decisions, implementation of policies and results are made available to the public in such a way as to enable people to effectively follow and contribute to the work of government and public institutions, either directly or through representative bodies.
- E-governance services are made available via a range of Information and Communication Technologies (ICTs) channels, where practicable and cost-effective, provided that they ensure ease of use, as well as better quality, availability and accessibility of information and services and consider potential risks related, in particular, to the abuse of personal data, and inadequate e-literacy skills."
c) Recommendation Rec(2002)2 on of the Committee of Ministers to member states access to official documents
"The Committee of Ministers [...]
Bearing in mind, in particular, Article 19 of the Universal Declaration of Human Rights, Articles 6, 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms, the United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted in Aarhus, Denmark, on 25 June 1998) and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (ETS No. 108); the Declaration on the freedom of expression and information adopted on 29 April 1982; as well as Recommendation No. R (81) 19 on the access to information held by public authorities, Recommendation No. R (91) 10 on the communication to third parties of personal data held by public bodies; Recommendation No. R (97) 18 concerning the protection of personal data collected and processed for statistical purposes and Recommendation No. R (2000) 13 on a European policy on access to archives;
Considering the importance in a pluralistic, democratic society of transparency of public administration and of the ready availability of information on issues of public interest;
Considering that wide access to official documents, on a basis of equality and in accordance with clear rules:
- allows the public to have an adequate view of, and to form a critical opinion on, the state of the society in which they live and on the authorities that govern them, whilst encouraging informed participation by the public in matters of common interest;
- fosters the efficiency and effectiveness of administrations and helps maintain their integrity by avoiding the risk of corruption;
- contributes to affirming the legitimacy of administrations as public services and to strengthening the public’s confidence in public authorities;
Considering therefore that the utmost endeavour should be made by member states to ensure availability to the public of information contained in official documents, subject to the protection of other rights and legitimate interests;
Stressing that the principles set out hereafter constitute a minimum standard, and that they should be understood without prejudice to those domestic laws and regulations which already recognise a wider right of access to official documents;
Considering that, whereas this instrument concentrates on requests by individuals for access to official documents, public authorities should commit themselves to conducting an active communication policy, with the aim of making available to the public any information which is deemed useful in a transparent democratic society,
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
I. Definitions
For the purposes of this recommendation:
"public authorities" shall mean:
i. government and administration at national, regional or local level;
ii. natural or legal persons insofar as they perform public functions or exercise administrative authority and as provided for by national law.
"official documents" shall mean all information recorded in any form, drawn up or received and held by public authorities and linked to any public or administrative function, with the exception of documents under preparation.
II. Scope
1. This recommendation concerns only official documents held by public authorities. However, member states should examine, in the light of their domestic law and practice, to what extent the principles of this recommendation could be applied to information held by legislative bodies and judicial authorities.
2. This recommendation does not affect the right of access or the limitations to access provided for in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.
III. General principle on access to official documents
Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.
IV. Possible limitations to access to official documents
[...]
V. Requests for access to official documents
1. An applicant for an official document should not be obliged to give reasons for having access to the official document.
2. Formalities for requests should be kept to a minimum.
VI. Processing of requests for access to official documents
1. A request for access to an official document should be dealt with by any public authority holding the document.
2. Requests for access to official documents should be dealt with on an equal basis.
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.
4. If the public authority does not hold the requested official document it should, wherever possible, refer the applicant to the competent public authority.
5. The public authority should help the applicant, as far as possible, to identify the requested official document, but the public authority is not under a duty to comply with the request if it is a document which cannot be identified.
6. A request for access to an official document may be refused if the request is manifestly unreasonable.
7. A public authority refusing access to an official document wholly or in part should give the reasons for the refusal.
VII. Forms of access to official documents
1. When access to an official document is granted, the public authority should allow inspection of the original or provide a copy of it, taking into account, as far as possible, the preference expressed by the applicant.
2. If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains. Any omissions should be clearly indicated. However, if the partial version of the document is misleading or meaningless, such access may be refused.
3. The public authority may give access to an official document by referring the applicant to easily accessible alternative sources.
VIII. Charges for access to official documents
1. Consultation of original official documents on the premises should, in principle, be free of charge.
2. A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs incurred by the public authority.
IX. Review procedure
1. An applicant whose request for an official document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit mentioned in Principle VI.3 should have access to a review procedure before a court of law or another independent and impartial body established by law.
2. An applicant should always have access to an expeditious and inexpensive review procedure, involving either reconsideration by a public authority or review in accordance with paragraph 1 above.
X. Complementary measures
1. Member states should take the necessary measures to:
i. inform the public about its rights of access to official documents and how that right may be exercised;
ii. ensure that public officials are trained in their duties and obligations with respect to the implementation of this right;
iii. ensure that applicants can exercise their right.
2. To this end, public authorities should in particular:
i. manage their documents efficiently so that they are easily accessible;
ii. apply clear and established rules for the preservation and destruction of their documents;
iii. as far as possible, make available information on the matters or activities for which they are responsible, for example by drawing up lists or registers of the documents they hold.
XI. Information made public at the initiative of the public authorities
A public authority should, at its own initiative and where appropriate, take the necessary measures to make public information which it holds when the provision of such information is in the interest of promoting the transparency of public administration and efficiency within administrations or will encourage informed participation by the public in matters of public interest."
Recommendation Rec(2002)2 is much more detailed than the (thereby 'replaced') Recommendation No. R (81)19 and seems to have the function of a 'model code' formulating minimal standards. See also the Explanatory memorandum (drafted by the Steering Committee for Human Rights (CDDH) - Appendix I to CM Documents (CM(2002)8) 22 January 2002):
"1. Within the Council of Europe, the principle of public access to official documents began to be developed in Recommendation N° R (81) 19 on access to information held by public authorities. A recent example of European co-operation in this field is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted in Aarhus, Denmark, on 25 June 1998. Another recent example from the EU is the adoption of the Regulation (EC) N° 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. In the course of the last years, there has been growing interest among the member states in making provision in domestic law for measures to ensure open government and public access to official information. Work was accordingly started in the Council of Europe in order to further elaborate basic principles on the right of access to official information held by public authorities."
The Explanatory memorandum gives a sort of commentary 'article by article' on the principles spelled out in Recommendation Rec(2002)2. Recommendation Rec(2002)2 is, furthermore, accompanied by a 'guide': Directorate General of Human Rights of the CoE (ed.), Access to official documents guide (2004):
"Introduction: The aim of this guide is to bring to the attention of the general public and civil servants the principles set out in Recommendation Rec(2002)2 on access to official documents [...], adopted by the Committee of Ministers of the Council of Europe on 21 February 2002 and addressed to the Council's 45 member states. [...]
The Recommendation sets principles which the European states are invited to use as a guide in their law and practice in the field of access to official documents, it being understood that they are free to go beyond these, by adopting provisions granting a broader right of access.
The present guide concerns only official documents held by public authorities, but the Recommendation invites member states to consider, in the light of their national law and internal practices, to what degree the principles which it contains might be applied to information held by legislative bodies and judicial authorities.
This guide first of all sets out the basic principle to be followed in this regard (I). It then highlights a series of practical questions (II) and points to the action that public authorities may take in order to facilitate access (III)."
d) Council of Europe Convention on Access to Official Documents (CETS No. 205)
Summary of the CoE's Treaty office:
"This Convention is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities. 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. The right of access to official documents is also essential to the self-development of people and to the exercise of fundamental human rights. It also strengthens public authorities’ legitimacy in the eyes of the public, and its confidence in them.
This Convention lays down a right of access to official documents. Limitations on this right are only permitted in order to protect certain interests like national security, defence or privacy.
The Convention sets forth the minimum standards to be applied in the processing of requests for access to official documents (forms of and charges for access to official documents), review procedure and complementary measures and it has the flexibility required to allow national laws to build on this foundation and provide even greater access to official documents.
A Group of Specialists on Access to Official Documents will monitor the implementation of this Convention by the Parties."
The Convention has been until now signed and ratified by 14 Member States and has furthermore been (only) signed by 6 Member States.
On the functions of the Convention cf. the Introduction of the Explanatory Report:
"(i) The present Council of Europe Convention is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities. For many years, international cooperation had been pursued within the Organisation in order that a right of access to official documents, which finds its origins in the 1950 European Convention on Human Rights, become a reality throughout Europe.
(ii) The first political and legal expression of this was in Recommendation No. R (81) 19 of the Committee of Ministers to member States on access to information held by public authorities,
followed one year later by the Declaration of the Committee of Ministers on freedom of expression and information. Other legal instruments had been elaborated [...] until, in 2002, the
Committee of Ministers adopted its Recommendation Rec(2002)2 on access to public documents, which was the principal source of inspiration for the present Convention.
(iii). The Steering Committee for Human Rights (CDDH), instructed by the Committee of Ministers of the Council of Europe to draft the present Convention, was guided by the concern to identify, amongst the various national legal systems, a core of basic obligatory provisions reflecting what was already accepted in the legislation of a number of countries and that, at the same time, could be accepted by States that did not have such legislation. The Parties to the present Convention undertake to implement rigorously this minimum core of basic provisions, and in order to assist them in achieving this goal an international monitoring mechanism is envisaged in the Convention. The spirit behind this is, of course, to encourage the Parties to equip themselves with, maintain and reinforce domestic provisions that allow a more extensive right of access, provided that the minimum core is nonetheless implemented."
e) Articles 4, 5 and Article 9 (1) of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.
"Article 4 - Access to Environmental Information
1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:
(a) Without an interest having to be stated;
(b) In the form requested unless:
(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or
(ii) The information is already publicly available in another form.
2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
3. and 4. [Limits to access to environmental information]
5. Where a public authority does not hold the environmental information requested, this public authority shall, as promptly as possible, inform the applicant of the public authority to which it believes it is possible to apply for the information requested or transfer the request to that authority and inform the applicant accordingly.
6. Each Party shall ensure that, if information exempted from disclosure under paragraphs 3 (c) and 4 above can be separated out without prejudice to the confidentiality of the information exempted, public authorities make available the remainder of the environmental information that has been requested.
7. A refusal of a request shall be in writing if the request was in writing or the applicant so requests. A refusal shall state the reasons for the refusal and give information on access to the review procedure provided for in accordance with article 9. The refusal shall be made as soon as possible and at the latest within one month, unless the complexity of the information justifies an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
8. Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount. Public authorities intending to make such a charge for supplying information shall make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge."
Article 5 - Collection and Dissemination of Environmental Information
1. Each Party shall ensure that:
(a) Public authorities possess and update environmental information which is relevant to their functions;
(b) Mandatory systems are established so that there is an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment;
(c) In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected.
2. Each Party shall ensure that, within the framework of national legislation, the way in which public authorities make environmental information available to the public is transparent and that environmental information is effectively accessible, inter alia, by:
(a) Providing sufficient information to the public about the type and scope of environmental information held by the relevant public authorities, the basic terms and conditions under which such information is made available and accessible, and the process by which it can be obtained;
(b) Establishing and maintaining practical arrangements, such as:
(i) Publicly accessible lists, registers or files;
(ii) Requiring officials to support the public in seeking
access to information under this Convention; and
(iii) The identification of points of contact; and
(c) Providing access to the environmental information contained in lists, registers or files as referred to in subparagraph (b) (i) above free of charge.
3. Each Party shall ensure that environmental information progressively becomes available in electronic databases which are easily accessible to the public through public telecommunications networks. Information accessible in this form should include:
(a) Reports on the state of the environment, as referred to in paragraph 4 below;
(b) Texts of legislation on or relating to the environment;
(c) As appropriate, policies, plans and programmes on or relating to the environment, and environmental agreements; and
(d) Other information, to the extent that the availability of such information in this form would facilitate the application of national law implementing this Convention,
provided that such information is already available in electronic form.
4. Each Party shall, at regular intervals not exceeding three or four years, publish and disseminate a national report on the state of the environment, including information on the quality of the environment and information on pressures on the environment.
5. Each Party shall take measures within the framework of its legislation for the purpose of disseminating, inter alia:
(a) Legislation and policy documents such as documents on strategies, policies, programmes and action plans relating to the environment, and progress reports on their implementation, prepared at various levels of government;
(b) International treaties, conventions and agreements on environmental issues; and
(c) Other significant international documents on environmental issues, as appropriate.
6. Each Party shall encourage operators whose activities have a significant impact on the environment to inform the public regularly of the environmental impact of their activities and products, where appropriate within the framework of voluntary eco-labelling or eco-auditing schemes or by other means.
7. Each Party shall:
(a) Publish the facts and analyses of facts which it considers relevant and important in framing major environmental policy proposals;
(b) Publish, or otherwise make accessible, available explanatory material on its dealings with the public in matters falling within the scope of this Convention; and
(c) Provide in an appropriate form information on the performance of public functions or the provision of public services relating to the environment by government at all levels.
8. Each Party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices.
9. Each Party shall take steps to establish progressively, taking into account international processes where appropriate, a coherent, nationwide system of pollution inventories or registers on a structured, computerized and publicly accessible database compiled through standardized reporting. Such a system may include inputs, releases and transfers of a specified range of substances and products, including water, energy and resource use, from a specified range of activities to environmental media and to on-site and off-site treatment and disposal sites.
10. Nothing in this article may prejudice the right of Parties to refuse to disclose certain environmental information in accordance with article 4, paragraphs 3 and 4.
"Article 9 - Access to Justice
1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
2. [...].
3.[...].
4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1 , 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice."
See for the definition of "environmental information":
Article 2 - Definitions
For the purpose of this Convention
1. [...].
3. "Environmental information" means any information in written, visual, aural, electronic or any other material form on:
(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;
(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;"
2. Case Law of the ECtHR on Freedom of Information
See for a compilation of the relevant cases ECtHR (ed.), Guide on Article 10 of the European Convention of Human Rights - Freedom of Expression (version of August 2022), para. 427 - 450
a) ECtHR [GC], judgment Magyar Helsinki Bizottság v. Hungary (18030/11) 8 November 2016
b) ECtHR, judgment Centre For Democracy and the Rule of Law v Ukraine (10090/16) 26 July 2020
c) ECtHR, judgment Studio Monitori and Others v. Georgia (44920/09 and 8942/10) 30 January 2020
d) ECtHR, judgement Association BURESTOP 55 and Others v France (56176/18 and 5 others) 1 July 2021
e) ECtHR, decision Saure v Germany (6106/16) 19 October 2021
f) ECtHR, Šeks v. Croatia (39325/20) 3 February 2022
a) ECtHR [GC], judgment Magyar Helsinki Bizottság v. Hungary (18030/11) 8 November 2016
"145. The right of access to public documents has moreover been recognised by the Committee of Ministers of the Council of Europe in Recommendation Rec (2002) 2 on access to official documents, which declares that member States should, with some exceptions, guarantee the right of everyone to have access, on request, to official documents held by public authorities [...]. Furthermore, the adoption of the Council of Europe Convention on Access to Official Documents, even though it has to date been ratified by only seven member States, denotes a continuous evolution towards the recognition of the State’s obligation to provide access to public information [...]. Thus, even if the present case does not raise an issue of a fully-fledged right of access to information, the above Convention, in the Court’s view, indicates a definite trend towards a European standard, which must be seen as a relevant consideration. [...].
156. In short, the time has come to clarify the classic principles. The Court continues to consider that 'the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.' Moreover, 'the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion'. The Court further considers that Article 10 does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, as is seen from the above analysis, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force (which is not an issue in the present case) and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular 'the freedom to receive and impart information" and where its denial constitutes an interference with that right. [...]
168. Thus, the Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public ‘watchdog’. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers […] and authors of literature on matters of public concern […]. The Court would also note that given the important role played by the Internet in enhancing the public’s access to news and facilitating the dissemination of information […], the function of bloggers and popular users of the social media may be also assimilated to that of ‘public watchdogs’ in so far as the protection afforded by Article 10 is concerned."
b) ECtHR, judgment Centre For Democracy and the Rule of Law v Ukraine (10090/16) 26 July 2020
"81 The Court has clarified and summarised the principles to be applied in assessing whether the denial of access to information constitutes an interference with freedom of expression in the case of Magyar Helsinki Bizottság [...]..
82. In accordance with that judgment, whether and to what extent the denial of access to information constitutes an interference with an applicant’s freedom-of-expression rights must be assessed in each individual case and in the light of its particular circumstances.
Four criteria are relevant in this assessment: (i) the purpose of the information request; (ii) the nature of the information sought; (iii) the particular role of the seeker of the information in "receiving and imparting" it to the public; and (iv) whether the information sought is ready and available.
84. The information, data or documents to which access is sought must generally meet a public‑interest test in order to prompt a need for disclosure under the Convention. Such a need may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large [...].
85. The Court has emphasised that the definition of what might constitute a subject of public interest will depend on the circumstances of each case. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism. In order to ascertain whether a document relates to a subject of general importance, it is necessary to assess the document as a whole, having regard to the context in which it appears [...]
87. An important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public "watchdog". This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. A high level of protection also extends to academic researchers and authors of literature on matters of public concern. Given the important role played by the Internet in enhancing the public’s access to news and facilitating the dissemination of information, the function of bloggers and popular users of the social media may be also assimilated to that of "public watchdogs" in so far as the protection afforded by Article 10 is concerned [...].
88. The fact that the information requested is ready and available constitutes an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an 'interference' with the freedom to 'receive and impart information' as protected by that provision [...].
c) ECtHR, judgment Studio Monitori and Others v. Georgia (44920/09 and 8942/10) 30 January 2020
"40. Turning to the circumstances of application no. 44920/09, the Court notes that, whilst the journalistic role of the first and second applicants was undeniably compatible with the scope of the right to solicit access to State‑held information [...], the purpose of their information request cannot be said to have satisfied the relevant criterion under Article 10 of the Convention [...]. This is because they failed to specify, in the relevant domestic proceedings, the purpose of their request for permission to consult the criminal case file. They never explained to the relevant court registry why the documents were necessary for the exercise of their freedom to receive and impart information to others [...]. Noting that omission, the domestic authority explicitly invited the applicants to address that gap by clarifying the purpose of their request. What is more, the authority expressed its readiness to reconsider its initial refusal upon receipt of the requisite information from the applicants. The latter, however, ignored that opportunity and instead decided to sue the authority for breaching their alleged right to have unrestricted access to State-held information of public interest [...]. However, it should be restated in this connection that Article 10 of the Convention does not confer on individuals an absolute right to access State‑held information [...]."
42 As regards application no. 8942/10, it should be noted that the third applicant, like the first and second applicants, did not take the trouble to explain to the relevant court registry the purpose of his request to obtain a full copy of the relevant court decisions [...], which makes it impossible for the Court to accept that the information sought was instrumental for the exercise of his freedom-of-expression rights [...]. Most importantly, it is unclear how the third applicant’s role in society was supposed to satisfy the relevant criterion under Article 10 of the Convention. Thus, the Court observes that the third applicant was neither a journalist nor a representative of a 'public watchdog' [...]. He did not clarify in the proceedings before the Court how he could enhance, by receiving a copy of detention orders in six criminal cases totally unrelated to him, the public’s access to news or facilitate the dissemination of information in the interest of public governance [...]. Nor is the Court persuaded that the information solicited from the domestic judicial authority by the third applicant met the relevant public‑interest test under Article 10 of the Convention [...]. While acknowledging the significance of the principle that court decisions are to be pronounced publicly and should be, in some form, made accessible to the public in the interest of the good administration of justice and transparency [...], the Court restates that the requirement that the information sought meet a public-interest test in order to prompt a need for disclosure under Article 10 of the Convention is different, as it refers to the specific subject‑matter of the document, in this case of the judicial orders [...] . In that connection, that is as regards the question of whether or not the specific subject-matter of the solicited documents involved public-interest considerations, the applicant limited his arguments to mentioning that the solicited judicial decisions concerned high-profile criminal cases instituted against former high-ranking State officials for corruption offences [...]. However, the Court considers that the fact that the accused in those cases were well‑known public figures was not in itself sufficient to justify, under Article 10, disclosure of a full copy of the relevant judicial orders concerning the ongoing criminal proceedings, including the parts which did not constitute public information according to the domestic law applicable at the material time (see paragraphs 17 and 19 above), to a third party acting in a purely private capacity [...]. Indeed, the public interest is hardly the same as an audience’s curiosity [...]."
d) ECtHR, judgement Association BURESTOP 55 and Others v France (56176/18 and 5 others) 1 July 2021
"79. L’article 10 de la Convention n’ouvre donc pas un droit général d’accès aux informations détenues par l’État mais garantit seulement, dans une certaine mesure et sous certaines conditions, un droit d’accéder à de telles informations et une obligation pour les autorités publiques de les communiquer.
80. Cela étant rappelé, la Cour réfute la thèse du Gouvernement selon laquelle les principes énoncés dans l’arrêt Magyar Helsinki Bizottság ne vaudraient que dans l’hypothèse où l’administration a opposé un refus à une demande d’information, de sorte qu’ils ne seraient pas pertinents en l’espèce.
81. Certes, dès lors que le droit de recevoir des informations que garantit l’article 10 n’impose pas aux États des obligations positives de collecte et de diffusion, motu proprio, d’informations, c’est principalement dans l’hypothèse où une demande d’accès à une information est rejetée par les autorités d’un État qu’un problème est susceptible de surgir au regard de cette disposition. Un État peut toutefois se prescrire une obligation de collecter ou de diffuser des informations motu proprio.
82. Or, en l’espèce, le droit interne impose à l’ANDRA, un établissement public, l’obligation de mettre à la disposition du public des informations relatives à la gestion des déchets radioactifs. Ainsi qu’il ressort des motifs de l’arrêt de la cour d’appel de Versailles du 23 mars 2017, cette obligation impliquait celle d’informer motu proprio le public de l’évolution du projet Cigéo, en particulier au regard du potentiel géothermique du site de Bure. L’ANDRA ne l’a pas contesté devant les juridictions internes et le Gouvernement n’en disconvient pas devant la Cour.
83. Ceci étant, la Cour estime que les circonstances de l’espèce relèvent de la seconde branche de l’alternative exposée dans l’arrêt Magyar Helsinki Bizottság rappelée ci-dessus, selon laquelle un droit d’accès à des informations détenues par une autorité publique et une obligation pour l’État de les communiquer peuvent naître, au regard de l’article 10, lorsque l’accès à l’information est déterminant pour l’exercice par l’individu de son droit à la liberté d’expression, en particulier la liberté de recevoir et de communiquer des informations, et que refuser cet accès constitue une ingérence dans l’exercice de ce droit.
84. La Cour a jugé dans cet arrêt (§§ 157-170) que la question de savoir si et dans quelle mesure le refus de donner accès à des informations a constitué une ingérence dans l’exercice par un requérant du droit à la liberté d’expression doit s’apprécier au cas par cas à la lumière des circonstances particulières de la cause, et en fonction des critères suivants : 1. le but de la demande d’information ; 2. la nature de l’information recherchée ; 3. le rôle de la requérante ; 4. le fait que les informations sont déjà disponibles.
85. La Cour considère qu’il doit en aller de même lorsque l’ingérence alléguée ne résulte pas d’un refus de donner accès à une information mais, comme en l’espèce, dans le caractère prétendument insincère, inexact ou insuffisant d’une information fournie par une autorité publique en vertu d’une obligation d’informer prescrite par le droit interne. Selon elle, fournir, dans pareille hypothèse, une information insincère, inexacte ou insuffisante s’apparente à un refus d’informer.
86. S’agissant du premier des quatre critères susmentionnés, il faut déterminer si les informations en cause étaient réellement nécessaires à l’exercice de la liberté d’expression [...]. Or, en l’espèce, en accord avec leur objet social, les associations requérantes se sont notamment données pour mission d’informer le public des risques environnementaux et sanitaires que présente le projet Cigéo. Les informations litigieuses, relatives précisément à ces risques, s’inscrivaient donc directement dans l’exercice de leur liberté de communiquer des informations.
87. Quant au deuxième critère, relatif à la nature de l’information, il conduit à vérifier si les informations, les données ou les documents concernés répondent à un critère d’intérêt public [...]. En l’espèce, l’information litigieuse s’inscrivait directement dans le débat relatif aux risques environnementaux et sanitaires que présente le projet Cigéo, lequel concerne l’acheminement, la manutention et l’enfouissement sur le site de Bure de quantités importantes de déchets radioactifs de haute activité et à vie longue, particulièrement dangereux pour la santé et l’environnement. Or il ne fait aucun doute qu’un sujet de cette nature relève de l’intérêt public.
88. S’agissant du troisième critère, la Cour a souligné que le fait que la requérante joue un rôle de « chien de garde » revêt un poids particulier. Il en va notamment ainsi des organisations non gouvernementales, qui sont dans un tel rôle non seulement lorsqu’elles attirent l’attention de l’opinion sur des sujets d’intérêt publics [...], mais aussi lorsqu’elles agissent auprès des autorités en faveur de la mise à la disposition du public d’informations relatives à de tels sujets. Tel est le cas en l’espèce des associations requérantes d’autant plus qu’elles bénéficient, en droit interne, d’un agrément au titre de leur activité dans le domaine de la protection de l’environnement.
89. Quant au quatrième critère, relatif à la disponibilité des informations litigeuses, il est par définition rempli en l’espèce.
[...]
108. Selon la Cour, le droit d’accès à l’information se trouverait vidé de sa substance si l’information fournie par les autorités compétentes était insincère, inexacte ou même insuffisante. En effet, le respect du droit d’accès à l’information implique nécessairement que l’information fournie soit fiable, en particulier lorsque ce droit résulte d’une obligation légale mise à la charge de l’État. L’effectivité de ce droit commande dès lors qu’en cas de contestation à cet égard, les intéressés disposent d’un recours permettant le contrôle du contenu et de la qualité de l’information fournie, dans le cadre d’une procédure contradictoire. La Cour réitère sur ce point que l’objet et le but de la Convention, instrument de protection des droits de l’homme, appellent à comprendre et appliquer ses dispositions d’une manière qui en rende les exigences concrètes et effectives, et non théoriques et illusoires [...]."
e) ECtHR, decision Saure v Germany (6106/16) 19 October 2021
"37. The Court [...] considers that such situation, in which a journalist seeks the disclosure of information which would first have to be created through comprehensive research and analysis, and in which not even the entire raw data from which such information were to be generated existed within the authority due to a lack of recording [...] is distinct from one where the requested information exists within the authority and would merely need to be compiled in order to respond to the request [...]. Reiterating that Article 10 of the Convention does not impose an obligation to collect information on the applicant’s request, particularly when a considerable amount of work is involved [...], the Court considers that this applies a fortiori where the requested information does not even exist within the authority as in the present case.
38. The Court therefore cannot conclude that the authorities’ refusal to provide the applicant with the requested information amounted to de facto censorship, nor that it prevented him from exercising his role as a "public watchdog". In this connection, the Court also observes that, in so far as the personnel files have been analysed and respective information been made available to the public through archives [...], the applicant could access a part of the information he sought to obtain [...]. Against this background, the Court does not need to determine whether the applicant had sufficiently substantiated the purpose of his information request before the domestic courts [...]."
f) ECtHR, Šeks v. Croatia (39325/20) 3 February 2022
"36. The Court reiterates that Article 10 does not confer on the individual a right of access to information held by a public authority or oblige the Government to impart such information to the individual. However, such a right or obligation may arise where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular, "the freedom to receive and impart information", and where its denial constitutes an interference with that right [...]."
37. In determining this question the Court will be guided by the principles laid down in Magyar Helsinki Bizottság [...] and will assess the case in the light of its particular circumstances and having regard to the following criteria: (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the applicant; and (d) whether the information was ready and available.
38. The Court firstly notes that the applicant sought access to the classified documents in order to use the information obtained for the purposes of writing a book about the creation of the Croatian State. Under domestic law, he was not under the obligation to state the reasons for which he was requesting access to the documents in question (see section 18(4) of the Act on the Right of Access to Information cited at paragraph 21 above). In the Court’s view, it is not strictly relevant whether the documents were indeed crucial for his book; what is sufficient is that the applicant sought access to them in order to provide his readers with a full and detailed chronology of the events that took place during the period referred to.
39. Turning to the nature of the information sought, the Court reiterates that information to which access is sought must meet a public-interest test, which, according to its general definition, exists where disclosure provides transparency on the manner of the conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the general public. What might constitute a subject of public interest will, moreover, depend on the circumstances of each case [...].
40. In the present case, the Court notes that the Constitutional Court concluded that a scientific monograph about the creation of the Republic of Croatia was a matter of public interest [...]. It sees no reason to hold otherwise.
[...].
63. Unlike a number of previous cases examined by the Court which involved access to personal information relating to the applicant or other persons, and the balancing of the right to freedom of expression against the rights of others [...], the present case concerns classified information relating to a sensitive part of Croatia’s rather recent history which, as the applicant maintained himself, still formed part of considerable public debate [...]. National security being an evolving and context-dependent concept, the States must be afforded a wide margin of appreciation in assessing what poses a national security risk in their countries at a particular time [...]. At the same time, the Court points out that the concepts of "national security" and "public safety" should be applied with restraint, interpreted restrictively and brought into play only where it has been shown to be necessary to suppress the release of the information for the purposes of protecting national security and public safety [...].
64. The Court has recognised that it was not well-equipped to challenge the national authorities’ judgment concerning the existence of national security considerations [...]. However, even when national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision [...]. If there was no possibility of challenging effectively the executive’s assertion that national security was at stake, the State authorities would be able to encroach arbitrarily on rights protected by the Convention [...].
65. The Court has further stressed that the fairness of proceedings and the procedural guarantees afforded to the applicant are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 [...]. In cases such as the present one, involving national security concerns resulting in decisions restricting human rights, the Court will therefore scrutinise the national decision-making procedure to ensure that it incorporated adequate safeguards to protect the interests of the person concerned [...]."
3. Functions of the pan-European general principles on freedom of information and transparency
The functions of the pan-European general principles on freedom of information and transparency are very are very clearly set out in the older CoE sources on the subject and in some newer non-CoE sources.
a) Recommendation 854 (179) of the Parliamentary Assembly on access by the public to government records and freedom of information
"The Assembly
1. Reaffirming its faith in parliamentary democracy;
2. Convinced that parliamentary democracy can function adequately only if the people in general and their elected representatives are fully informed;
3. Considering that in today's society public life has become so complicated and technical that government departments and agencies frequently generate and possess information which cannot be obtained from other sources;
4. Considering therefore that it is desirable that, subject to certain inevitable exceptions, the public should have access to government records;
5. Considering that such freedom of information also constitutes an adequate check on corruption and waste of public funds;
6. Bearing in mind that the taxpayers, i.e. the public in general, are the contributors of public funds, and that they should therefore be able to find out how those public funds are used, or misused, in government agencies and departments;
7. Believing that the individual should have access to his personal records and have the right to have erroneous information about himself corrected, it being understood that such personal information should not be divulged or distributed to others as this would constitute an unwarranted invasion of privacy;
8. Considering that such a right of access to one's own records has already been recognised by the Council of Europe in Resolutions (73) 22 and (74) 29 of the Committee of Ministers, relating to electronic records;
9. Considering that the time has come to recognise this principle with regard to any records, whether electronic or manual;
[…]
13. Recommends that the Committee of Ministers:
a) invite member states which have not yet done so to introduce a system of freedom of information, i.e. access to government files, comprising the right to seek and receive information from government agencies and departments, the right to inspect and correct personal files, the right to privacy, and the right to rapid action before the courts in these matters;
b) instruct the Committee of Experts on Public Authorities and Access to Information, or any other expert committee to make a full study on the question of access to government files;
c) implement its decision taken in 1976 to insert a provision on the right to seek information in the European Convention on Human Rights;
d) - f) [...]"
b) Recommendation No. R (81)19 of the Committee of Ministers to member states on the access to information held by public authorities
"The Committee of Ministers [...]
Having regard to Assembly Recommendation 854 on access by the public to government records and freedom of information;
Considering the importance for the public in a democratic society of adequate information on public issues;
Considering that access to information by the public is likely to strengthen confidence of the public in the administration;
Considering therefore that the utmost endeavour should be made to ensure the fullest possible availability to the public of information held by public authorities,
Recommends the governments of member states to be guided in their law and practice by the principles appended to this recommendation.
Appendix to Recommendation No. R (81) 19
The following principles apply to natural and legal persons. In the implementation of these principles regard shall duly be had to the requirements of good and efficient administration. Where such requirements make it necessary to modify or exclude one or more of these principles, either in particular cases or in specific areas of public administration, every endeavour should nevertheless be made to achieve the highest possible degree of access to information.
I.
Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities.
II.
Effective and appropriate means shall be provided to ensure access to information.
III.
Access to information shall not be refused on the ground that the requesting person has not a specific interest in the matter.
IV.
Access to information shall be provided on the basis of equality.
V.
The foregoing principles shall apply subject only to such limitations and restrictions as are necessary in a democratic society for the protection of legitimate public interests (such as national security, public safety, public order, the economic well-being of the country, the prevention of crime, or for preventing the disclosure of informationreceived in confidence), and for the protection of privacy and otherlegitimate private interests, having, however, due regard to the specific interest of an individual in information held by the public authorities which concerns him personally.
VI.
Any request for information shall be decided upon within a reasonable time.
VII.
A public authority refusing access to information shall give the reasons on which the refusal is based, according to law or practice.
VIII.
Any refusal of information shall be subject to review on request."
Explanatory report (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 396 ff.):
"1. It is generally recognised that a democratic system can best function effectively when the public is fully informed. Moreover, because of social and technological developments, modern life has become so complex that public authorities often possess large quantities of records and information of general interest and importance. To ensure adequate participation of all in public life, it is necessary that the public should, subject to unavoidable exceptions and limitations, have access to information held by public authorities at all levels.
2. The everyday life of the individual is profoundly affected by the activities of public authorities. In order to protect the rights of the individual it is most important that he should be aware of the information held by public authorities – in particular information concerning himself or his interests – and that access to information should be on the basis of equality.
3. It should be mentioned that access to information by the public is also in the interest of the public authorities themselves, because it can help to establish a closer relationship between the administration and the individual, and is thus likely to strengthen the confidence of the public in the administration."
Recommendation No. R (81)19 was preceded by a "Colloquy on European Law" in Graz (21–23 September 1976) organized by the CoE. Its proceedings are published in CoE (ed.), Proceedings of the Colloquy of the Council of Europe on Freedom of Information and the Duty for the Public Authorities to Make Available Information organised by the Committee of Experts on Human Rights in Collaboration with the Faculty of Law of the Univeritsy of Graz (1977).
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 18 ff.
"VII – Openness
A – Concept
30. Without having to show any specific interest, everyone is entitled upon request :
(i) to be given information which is in the possession of an administrative authority
(ii) within a reasonable time
(iii) in the same way as anyone else
(iv) by effective and appropriate means.
30.1 Comment : It is generally recognised that a democratic system can function more effectively when the public is fully informed about the issues of public life, because to be informed is a prerequisite of acceptance, participation and adherence. It is, thus, necessary that the public have, subject to unavoidable exceptions and limitations, access to the large quantities of records and information of general interest and importance which administrative authorities hold at all levels.
30.2.Comment : Moreover, in order to protect the rights of the private person, it is most important that the person concerned be aware of the information held by the administrative authorities concerning himself or his interests. Such openness is also likely to strengthen the confidence of the public in the administration. The administrative authorities on their part will often benefit from the feedback received from the private persons.
30.3. Comment: "Without having to show any specific interest" means mainly that one does not have to be a party in any administrative procedure as a prerequisite for the right to request information from administrative authorities.
30.4. Comment re (ii): The administrative authorities should supply information as soon as possible. Obviously, very numerous requests for information coming from the public can entail a considerable workload for administrative authorities and, at some point, be considered as incompatible with good and efficient administration and be handled with delay. The principle factors for assessing what is "reasonable time" are the nature and complexity of the information and the time needed for the administrative authorities to supply it.
30.5. Comment re (iv): These means may consist in oral or written information, in allowing inspection of documents and files, etc. The fact that the administrative authorities charge a fee on the occasion of such a request or recover the costs for providing the information requested (copying, printing, mailing or other) is compatible with this principle.
c) Transparency and the Fight Against Corruption in the Light of Article 10 of the United Nations Convention against Corruption
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
As part of Chapter II on 'Preventive measures" Article 10 of the United Nations Convention against Corruption stipulates:
Article 10. Reporting - Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision-making processes, where appropriate. Such measures may include, inter alia:
(a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public;
(b) Simplifying administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and
(c) Publishing information, which may include periodic reports on the risks of corruption in its public administration.
See on Article 10 of the United Nations Convention against Corruption para. 58 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 117 ff. of the Travaux Préparatoires; cf. furthermore S. Williams-Eelegbe, 'Article 10: Public Reporting' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 106 - 113.
III. Limits to Freedom of Information and Transparency
1. The CoE handbook 'The administration and you'
4. Article 4 of Council of Europe Convention on Access to Official Documents (CETS No. 205)
1. The CoE handbook 'The administration and you'
CoE (ed.), The administration and you (2nd edition 2018), pp. 19 f.
"Principle 6 – Transparency
[...]
Commentary
[...]
Refusal of access to official documents may be justified by a public authority in relation to certain kinds of internal documents, such as personal documents exchanged within the authority or documents prepared as internal working papers. Every working environment, including that of public authorities, has a "private sphere" in which work is done in a rather informal way and which has to be protected."
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 18 ff.
"VII – Openness
A – Concept
[...].
B – Limitations
31. Access to information may be subject only to such limitations as are necessary in a democratic society for the protection of :
(i) legitimate public interests ;
(ii) privacy and other legitimate private interests.
31.1. Comment: To ensure the protection of legitimate public and private interests, access to information has to be subject to certain limitations. Refusal of access may be justified as regards certain kinds of internal documents, such as documents exchanged within an administrative authority on a personal basis, or prepared as internal working papers. For there is, within any working environment including public administrations, a "private sphere" in which work is being done in a rather informal way and which has to be protected.
31.2. Comment re (i): "Legitimate public interests in a democratic society" are, for instance, national security, public safety, public order, the economic wellbeing of the country (protection of the currency and the credit, etc.), the prevention of crime, preventing the disclosure of information received in confidence, etc.
31.3. Comment re (ii): The protection of confidential personal data as well as the protection of the reputation and the rights of private persons other than those who request access to the information, can justify refusal of access to information. For the conditions under which personal data held by public authorities in electronic files may or may not be communicated to third parties, see below: "Protection of personal data", Chapter 4, III.
2. Recommendation No.R (91) 10 of the Committee of Ministers to member states on the communication to third parties of personal data held by public bodies
The aim of Recommendation No.R (91) 10 was, inter alia, to "complement" Recommendation No. R (81)19 by defining limits to freedom of information but also to 'open government policies', cf. the Explanatory memorandum:
"4. Freedom of information policy and privacy policy may compete for priority. The application of each of these fundamental values must be premised on respect for its counterpart. Reconciliation is sometimes necessary. This is why, for example, the implementation of freedom of information policy contained in Recommendation No. R (81) 19 is made subject to the need to respect, inter alia, the private life of the individual. From the privacy point of view, the implementation of data protection policy must, as is declared in the preamble to the Data Protection Convention, take account of the need "... to reconcile the fundamental values of respect for privacy and the free flow of information between peoples". For the intergovernmental Committee of Experts on Data Protection, the drafters of this legal instrument, freedom of information policy and data protection are not necessarily conflicting values. Data protection is to be seen as consistent with the broader aspects of information policy within society. It does not seek to place a priori restrictions on the circulation of personal information within society. Rather, the principles of data protection seek to determine the conditions under which personal data may be collected, processed and communicated to third parties, and used by them.
5. It should be stressed at the outset that the aim of this recommendation is not to promote transparency within public administration or open government or to encourage freedom of information. The desirability of making public bodies accountable by means of freedom of information principles is already catered for in Recommendation No. R (81) 19 of the Committee of Ministers. [...].
6. Furthermore, a complete approach to personal data or personal data file communication by public bodies to third parties may not be limited solely to situations foreseen in provisions governing access to public sector information. The recommendation is also concerned with those many situations in which public bodies collect and store various categories of personal data with a view to their being made accessible to third parties in accordance with the whole range of legal provisions governing accessibility. In particular, the recommendation addresses those categories of so-called "public files" which contain personal data which are published in accordance with the law. Such files - examples are provided in paragraph 24 of this commentary - are available for public consultation and the data contained in them may be communicated to third parties."
The appendix of Recommendation No.R (91) 10 names detailed principles which the member states should take into account "whenever personal data or personal data files collected and stored by public bodies may be made accessible to third parties", in particular:
"2. Respect for privacy and data protection principles
2.1. The communication, in particular by electronic means, of personal data or personal data files by public bodies to third parties should be accompanied by safeguards and guarantees designed to ensure that the privacy of the data subject is not unduly prejudiced.
In particular, the communication of personal data or personal data files to third parties should not take place unless:
a. a specific law so provides; or
b. the public has access thereto under legal provisions governing access to public-sector information; or
c. the communication is in conformity with domestic legislation on data protection; or
d. the data subject has given his free and informed consent.
2.2. Unless domestic law provides appropriate safeguards and guarantees for the data subject, personal data or personal data files may not be communicated to third parties for purposes incompatible with those for which the data were collected.
2.3. Domestic legislation on data protection should apply to the processing by a third party of personal data communicated to him by public bodies."
Moreover Recommendation No.R (91) 10 provides for specific principles with regard to 'sensitive data', 'general accessible data', 'access to and communication of personal data by electronic means', processing by third parties of personal data originating in files accessible to third parties, file interconnection/matching' and 'transborder data flows'.
Recommendation No.R (91) 10 was preceded by the "Seventeenth Colloquy on European Law" in Zaragoza (21–23 October 1987) organized by the CoE. Its proceedings are published in CoE (ed.), Secrecy and openness: individuals, enterprises and public administrations (1988).
3. Recommendation Rec(2002)2 on of the Committee of Ministers to member states access to official documents
"IV. Possible limitations to access to official documents
1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:
i. national security, defence and international relations;
ii. public safety;
iii. the prevention, investigation and prosecution of criminal activities;
iv. privacy and other legitimate private interests;
v. commercial and other economic interests, be they private or public;
vi. the equality of parties concerning court proceedings;
vii. nature;
viii. inspection, control and supervision by public authorities;
ix. the economic, monetary and exchange rate policies of the state;
x. the confidentiality of deliberations within or between public authorities during the internal preparation of a matter.
2. Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.
3. Member states should consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply.
Explanatory memorandum (drafted by the Steering Committee for Human Rights (CDDH) - Appendix I to CM Documents (CM(2002)8) 22 January 2002):
"19. Access to documents should be the rule and confidentiality the exception, in cases where other legitimate interests take precedence. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting the other legitimate interest(s).
20. It follows from the general right in Principle III above that individuals will need to be told whether the public authority holds a particular document. Where the protection of other legitimate interests takes precedence over disclosure, in limited circumstances it may be necessary to keep secret the fact that information exists. This would apply in circumstances where to admit or deny that the information existed in itself would amount to disclosure of the information.
21. Limitations to the right of access to official documents should be possible only for the reasons listed exhaustively in Principle IV, paragraph 1. A specific limitation foreseen by national law may fall under several limitations contained in this Principle. The criteria for the application of limitations have been drawn up keeping in mind Articles 6, 8 and 10 of the European Convention on Human Rights, as well as the relevant provisions which appear in the instruments relating to data protection, in particular in the aforementioned Convention for the protection of individuals with regard to automatic processing of personal data of 28 January 1981 (ETS No. 108), and in Recommendation N° R (81) 19 on access to information held by public authorities.
22. Paragraph 1.i foresees that member states could limit access to official documents in order to protect national security, defence and international relations. In some member states, limitations related to these fields have a constitutional dimension. For example, some states having regions with a large degree of autonomy, may also have interest in protecting correspondence between such regional authorities, or in federal states, between the federal government and regional authorities. Some member states also limit access to documents concerning the Head of state; this is the case in particular in some constitutional monarchies.
23. Paragraph 1. iv. foresees that member states could limit access to protect privacy and other legitimate private interests. Information relating to such interests may be covered by the aforementioned Convention N° 108, but the limitation foreseen by paragraph 1. iv. may also be applied to information not covered by that Convention.
24. The concept of "commercial and other economic interests", as used in paragraph 1.v, may cover for example business matters which need to be kept secret for competition reasons, such as the confidential nature of business negotiations. This paragraph may also be extended to those documents which public authorities use to prepare collective bargaining, in which they take part.
25. In order to develop good statistical data, most states have confidentiality clauses protecting information gathered from private persons or entities for statistical purposes. Such data will usually either be personal data or data concerning economic or commercial interests. The access to documents containing such information, may therefore be limited in accordance with paragraph 1, items iv. and v. Similar considerations may apply to data collected in the course of taxation of private persons and entities.
26. Some states protect information given in confidence. This recommendation does not preclude this as long as the protected information is covered by one of the limitations in Principle IV, for example paragraph 1, items iv. or v.
27. The limitation concerning the protection of "equality of parties concerning court proceedings", as set out in paragraph 1.vi, derives from Article 6 of the European Convention on Human Rights on the right to a fair trial. It aims, inter alia, at allowing a public authority to refuse access to its own documents with the view not to weakening its position during proceedings to which it is a party.
28. Limitations for the protection of "nature", which are mentioned at paragraph 1.vii, are designed for example to prevent disclosure of the whereabouts of endangered fauna or flora in order to protect them. This limitation is in line with article 4, paragraph 4 (h) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters[6].
29. Paragraph 1. viii may, for example, protect the ability of a public authority to effectively regulate, investigate and audit, possibly through formal proceedings, other organisations or individuals, as well as their own internal rules and procedures. A possible example is an on‑going tax investigation or audit.
30. Paragraph 1. x. indicates the possibility to limit access in order to protect deliberations within or between public authorities for an authority’s internal preparation of a matter. This limitation would e.g. allow for documents from deliberations in the Cabinet to be exempted. The term "matter" is broad enough to cover all types of cases which are handled by the public authority, i.e. both individual cases and policy-making procedures.
31. Paragraph 2 expresses two important principles, the "harm-test" principle and the principle of balancing the interest of public access to documents against the interest protected by the limitation. If public access to an official document does not cause any harm to one of the interests listed in paragraph 1, there should be no limitations on access to that document. If public access to a document might cause harm to one of these interests, the document should still be released if the public interest in having access to the document overrides the protected interest.
32. The "harm test" and the "balancing of interests" may be carried out for each individual case, or by the legislator through the way in which the limitations are formulated. Legislation could for example set down varying requirements for carrying out harm tests. These requirements could take the form of a presumption for or against secrecy or unconditional secrecy for extremely sensitive information. When such requirements are set down in legislation, the public authority should make sure whether the requirements in the secrecy clause are fulfilled when they receive a request for access to such an official document. The level of sensitivity may vary with time and it should be avoided that the classification of a document would automatically prevent access to the same document in the future.
33. In some member states, documents will be released unless the protected interest overrides the public interest attached to disclosure. This approach is not incompatible with this recommendation.
34. Paragraph 3 evokes that member states should lay down maximum time limits for limitations on access. Accordingly, the documents should be made accessible after a certain period of time. In addition, time limits should be proportionate to what it is hoped to achieve, i.e. the protection of other rights and legitimate interests.
35. As regards documents classified as confidential, secret or top secret, the authorities should ensure that they are made accessible as soon as circumstances permit, or, if the law sets a time limit on confidentiality, as soon as that limit is reached. In some countries, the law provides for regular review of the confidential nature of an item of information. In others, review is carried out as necessary when a request is made for access.
4. Article 3 of Council of Europe Convention on Access to Official Documents (CETS No. 205)
Article 3 – Possible limitations to access to official documents
(1) Each Party may limit the right of access to official documents. Limitations shall be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:
a) national security, defence and international relations;
b) public safety;
c) the prevention, investigation and prosecution of criminal activities;
d) disciplinary investigations;
e) inspection, control and supervision by public authorities;
f) privacy and other legitimate private interests;
g) commercial and other economic interests;
h) the economic, monetary and exchange rate policies of the State;
i) the equality of parties in court proceedings and the effective administration of justice;
j) environment; or
k the deliberations within or between public authorities concerning the examination of a matter.
Concerned States may, at the time of signature or when depositing their instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that communication with the reigning Family and its Household or the Head of State shall also be included among the possible limitations.
(2) Access to information contained in an official document may be refused if 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.
(3) The Parties shall consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply.
5. Article 4 (3) and (4) of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.
"Article 4 - Access to Environmental Information
1. and 2. [...].
3. A request for environmental information may be refused if:
(a) The public authority to which the request is addressed does not hold the environmental information requested;
(b) The request is manifestly unreasonable or formulated in toogeneral a manner; or
(c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.
4. A request for environmental information may be refused if the disclosure would adversely affect:
(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;
(b) International relations, national defence or public security;
(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;
(e) Intellectual property rights;
(f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;
(g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or
(h) The environment to which the information relates, such as the breeding sites of rare species.
The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.
5. to 8. [...].
IV. Access to One’s Own Data and 'Egoistic' Use of Freedom of Information Rights
1. Case law of the ECtHR on the right to access to one's own data
2. Use of freedom of information rights in personal interest
1. Case law of the ECtHR on the right to access to one's own data
See for the case law of the ECtHR on the right to access to one's own data:
2. Use of freedom of information rights in personal interest
The following quote clearly shows that a right to access to administrative files without having in interest to be stated, does neither exclude nor forbid that this right is used (only) in one's own interest. Thus, the right to freedom of information can strengthen the rights to access one's own data or facilitate their practical enforcement.
CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), p. 14
"Does the individual have the right of access to files concerning other similar cases? [...]. Access of parties to other administrative files is provided for only in four countries, which have admitted the general principle of access of all citizens to all administrative files: Sweden, Finland, Denmark and Norway.
It should be observed that the principle of publicity of administrative files in these states is not meant in the first place to be an aid in view of administrative procedures. It is an additional safeguard for democratic control over the functioning of the administration. However, as a by-effect it may also benefit citizens in administrative proceedings".
CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975) preceded Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities as 'pilot study'; for the genesis of Resolution (77)31 in general click here
Furthermore, Recommendation 854 (1979) of the Parliamentary Assembly on access by the public to government records and freedom of information clearly understood "a right of access to one's own records" as an element of the right to freedom of information:
"The Assembly
1. - 6 [...];
7. Believing that the individual should have access to his personal records and have the right to have erroneous information about himself corrected, it being understood that such personal information should not be divulged or distributed to others as this would constitute an unwarranted invasion of privacy;
8. Considering that such a right of access to one's own records has already been recognised by the Council of Europe in Resolutions (73) 22 and (74) 29 of the Committee of Ministers, relating to electronic records;
9. Considering that the time has come to recognise this principle with regard to any records, whether electronic or manual;
[…]
13. Recommends that the Committee of Ministers:
a) invite member states which have not yet done so to introduce a system of freedom of information, i.e. access to government files, comprising the right to seek and receive information from government agencies and departments, the right to inspect and correct personal files, the right to privacy, and the right to rapid action before the courts in these matters;
b) instruct the Committee of Experts on Public Authorities and Access to Information, or any other expert committee to make a full study on the question of access to government files;
c) implement its decision taken in 1976 to insert a provision on the right to seek information in the European Convention on Human Rights;
d) - f) [...]"
3. Use of rights of the 'data subject' to access to data relating to them at reasonable intervals and without excessive delay or expense
Art. 8 (1) of Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108 - "Convention 108")
"Article 8 Additional safeguards for the data subject
Any person shall be enabled:
a. [...]
b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;
c. and d. [...].
Art. 9 (1) of 'Convention 108' as it will be amended by Protocol CETS No. 223:
"Article 9 – Rights of the data subject
Every individual shall have a right:
(a) [...].
(b) to obtain, on request, at reasonable intervals and without excessive delay or expense, confirmation of the processing of personal data relating to him or her, the communication in an intelligible form of the data processed, all available information on their origin, on the preservation period as well as any other information that the controller is required to provide in order to ensure the transparency of processing in accordance with Article 8, paragraph 1
(c) - (g) [...]
Paragraph 1.a shall not apply if the decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights, freedoms and legitimate interest."
Article 8 lit. b of 'Convention 108') and Article 9 (1) lit. b of 'Convention 108' as it will be amended by Protocol CETS No. 223) are concieved as as an instrument of the 'data subject' to check compliance with the obligations arising from data protection law (click here and click here for these additional safeguards of the 'data subject'). However, this right may also be used by the 'data subject' to gain access to information held about him - and to make use of it in completely different contexts.
That this use is covered by Article 8 lit. b of 'Convention 108') and Article 9 (1) lit. b of 'Convention 108' as it will be amended by Protocol CETS No. 223) is clear from the case law on Article 15 (3) of the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data(General Data Protection Regulation) which corresponds to these articles of 'Convention 108' and ' 'Convention 108+'. Article 15 (3) Regulation (EU) 2016/679 reads:
"The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form".
ECJ, judgement FT (Copies of medical records) (C-307/22) 26 October 2023:
"38. It must be pointed out that neither the wording of Article 12(5) of the GDPR nor that of Article 15(1) and (3) thereof make the provision, free of charge, of a first copy of personal data conditional upon data subjects putting forward reasons to justify their requests. Therefore, those provisions do not give the controller the possibility of demanding that reasons be given for the request for access submitted by the data subject.
43. Given that, as can be seen from paragraph 38 of the present judgment, the data subject is not required to state the reasons for the request for access to data, the first sentence of recital 63 of the GDPR cannot be interpreted as meaning that that request must be rejected if it concerns an objective other than that of becoming aware of the processing of data and verifying the lawfulness of that processing. That recital cannot restrict the scope of Article 15(3) of that regulation as recalled in paragraph 35 of the present judgment."
V. From Freedom of Information to Open Government Data and Open Government?
1. The CoE and Open Government Data
2. The CoE and Open Government
1. The CoE and Open Government Data
See Principle 6 of Recommendation CM/Rec(2023)5 of the Committee of Ministers to member States on the principles of good democratic governance (supra II 1 b).
See furthermore:
CLRAE Resolution 417 (2017) of 30 March 2017 'Open data for better public services':
"1. The rapid and ongoing rise in the quality and quantity of digital data and information managed and generated by local authorities is providing valuable new opportunities for them to improve the quality of local life by sharing the data and releasing them into the public domain. An increasing
number of cities are demonstrating that there is huge and untapped potential in this data for non-governmental organisations (NGOs) and interest groups when they are released into the public domain in a reusable format.
2. In many sectors, including transport, public health, use of cultural facilities, environment quality and energy use, public authority datasets are beginning to be used by civil society groups, often working in partnership with the local authority, to develop new tools and applications for promoting good governance in towns and cities. The benefits can be improved governance, improved quality of life and cities that are ecological and smart.
3. Open data offer greater transparency and not only provide citizens with the information to understand what their local governments do, but also empower them to contribute to the decision-making process of their local governments. They can lead to more participation in policy making, thereby
achieving more intelligent, tailored and responsive policies, and allow for greater political accountability.
4. The reuse of public sector information can also stimulate social and economic growth by enabling third parties to create innovative products and services. According to recent estimates, open data could increase the global gross domestic product (GDP) by more than 1%.
5. In the light of the above, the Congress of Local and Regional Authorities of the Council of Europe:
[...].
6. Calls upon local authorities in the Council of Europe member States to:
a. Develop strategies to make the information datasets of local authorities available in machine-readable formats, with a view to their reuse by citizens on computers and mobile devices;
b. Take measures to ensure that the entire population of a city has access to open data and benefits from open data initiatives, dialogues between government and citizens and public facilities delivered by means of open data, and actively participates in these activities;
c. Encourage citizens to make use of open data by publishing information and organising public meetings and programmes to stimulate the use of open data in order to provide added societal value;
d. Create partnerships with civil society groups and other organisations that can help to provide training and capacity building in the reuse of open data and the organisation of open data activities;
e. By means of public events, workshops and consultations, consult citizens and civil society for input on how best to make the data more responsive to their interests and concerns in order to understand which data should be generated and provided;
f. Ensure that data protection and privacy laws and policies are strictly adhered to when data are made available to the public.
[...].
CLRAE Recommendation 398 (2017) of 30 March 2017 'Open data for better public services':
"1. The Council of Europe Internet Governance Strategy 2016-2019 underlines the importance of public access to information and data for strengthening democracy and improving governance at all levels.
2. An increasing number of European cities are demonstrating that the release of local authority datasets into the public domain can empower citizens to develop new tools and applications for improving governance and the quality of life in towns and cities and can stimulate a variety of social, cultural, democratic and environmental initiatives.
3. Local authority data also have economic potential. The release of local authority datasets can be useful for local businesses and can serve to stimulate economic innovation and growth.
4. Democracy at local level can be enhanced by open data, which serve to increase transparency in the decision-making process and contribute to better accountability of local governments. They also act as a preventive tool in the fight against corruption by providing data on government
expenditure and performance.
5. The Congress of Local and Regional Authorities of the Council of Europe therefore,
a. Convinced that open data have the power to make Europe’s cities more open, democratic, transparent;
b. Aware that a "digital divide" remains between those who have access to (and are able to use) such data and those for whom this is not the case;
[...];
d. Calls on the Committee of Ministers to:
i. recognise the importance of open data for improving local democracy by increasing transparency, accountability and citizen participation;
ii. provide guidelines to the member States on adopting open data standards and strategies and introducing forms of data licensing such as the Creative Commons licences;
iii. address the risk of a "digital divide" in open data participation caused by a gap between those who have access to and benefit from open data initiatives and those who do not;
e. Recommends that the Committee of Ministers call upon the governments of its member States to:
i. create more awareness of the use of open data and highlight the advantages of sharing open data with citizens, civil society and other organisations, by organising public events, conferences and workshops on the use of open data;
ii. support local open data initiatives through the provision of the necessary information and public data, and by ensuring that open data initiatives by local authorities are supported through legislative or regulatory frameworks;
iii. provide guidelines and formulate policies for the reuse of public sector information and introduce national standards for licensing datasets;
iv. sign and ratify the Council of Europe Convention on Access to Official Documents and the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority, if they have not yet done so
See, the Explanatory memorandum to the aforementioned CLRAE recommendations (Report CG32(2017)15final of 28 February 2017 - rapporteur M. Bora)
"1. The Committee of Ministers has carefully examined Recommendation 398 (2017) of the Congress of Local and Regional Authorities of the Council of Europe entitled "Open data for better public services" [...]. It welcomes the consideration given by the Congress to the relevant and topical issue of open data.
2. The Committee of Ministers affirms that freedom of expression – and the right to seek and receive information as an inseparable element of this right – are fundamental for the functioning of a genuine democracy.
3. In this respect, and in response to para d.i. of the recommendation, the Committee of Ministers concurs that open data can be an important tool for enhancing transparency and accountability of governments, including at the local level and a valuable source of information for the public. It allows public authorities at national, regional and local level to make more comprehensive and up-to-date information available in an easily accessible, transparent, and non-discriminatory manner. The provision of open data and information, both online and offline, and without restrictions on the analysis and re-use of such information, can thus strengthen democratic security through increased trust in and credibility and legitimacy of democratic institutions at all levels.
4. The Committee of Ministers recalls that building democracy online is one of the strategic objectives of the Council of Europe’s Internet Governance Strategy 2016-2019. This includes enabling online participation in public life, also at the local level. It values the engagement of the Congress in this work.
5. Whilst recognising the potential beneficial effects of open access to public data, the Committee of Ministers recalls that open data policies can also have a bearing on the protection of privacy and personal data. It underlines the importance of a careful balancing of the right to information and the right to privacy, in line with the Council of Europe’s established standards and the case law of the European Court of Human Rights.
6. The Committee of Ministers recalls the relevance in this area of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108) and the "Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data" adopted earlier this year by the Consultative Committee of Convention 108. According to point 8 of the Guidelines §… public and private entities should carefully consider their open data policies concerning personal data since open data might be used to extract inferences about individuals and groups. When Data Controllers adopt open data policies, the assessment process … should take into account the effects of merging and mining different data belonging to different open data sets also in light of the provisions on anonymisation."
7. With regard to the European Court of Human Rights, the Committee of Ministers notes that although in recent years the Court has moved towards a broader interpretation of the notion of "freedom to receive information", strengthening a right of access to information [reference in a footnote 2 to ECtHR, judgement Társaság a Szabadságjogokért v. Hungary (37374/05) 14 April 2009, para. 35 and ECtHR, judgement Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria (39534/07) 28 November 2013 para. 41] this right is not absolute and may be subject to restrictions under the conditions listed in Article 10 paragraph 2 of the European Convention on Human Rights. This is the case, in particular, when a fair balance must be struck between the right to receive information and the right to privacy [reference in footnote 3 to ECtHR, decision Grupo Interpres SA v. Spain (32849/96) 7 April 1997])
8. Finally, the Committee of Ministers recalls that its Recommendations CM/Rec(2016)5 on internet freedom and CM/Rec(2014)6 on a Guide to human rights for internet users invite member States to regularly evaluate their performance in respecting, protecting and promoting human rights and fundamental freedoms on the Internet and encourage them to guarantee the transparency of the results of such evaluation. TheCommittee of Ministers sees potential for the engagement of the local authorities in this process and is convinced that it would be most beneficial for building democracy online.
9. With regard to paragraph d.ii of the recommendation, the Committee of Ministers will bear in mind during the preparation of the next Programme and Budget, the proposal to prepare possible guidelines, on all or some aspects of open data, having particular regard to the relevant standards and values of the Council of Europe, including those mentioned above, with a view to assisting member States in implementing initiatives in this area, including those recommended by the Congress.
10. In response to paragraph d.iii. of the recommendation, the Committee of Ministers agrees with the Congress on the need to "address the risk of a digital gap in open data participation." It underlines in this respect, the importance for all information and open data and public sector information to be presented in clear and easily understandable language and in an accessible, both "machine readable" and "human readable" format and that this is accessible to all, including the most vulnerable or those with special needs.
11. Finally, the Committee of Ministers calls on the governments of member States to carefully consider the further recommendations of the Congress set out in paragraph e. of its recommendation and in this context, in particular, consider to sign and ratify the Council of Europe Convention on Access to Official Documents (CETS No. 205) and the Additional Protocol to the European Charter of Local Self-Government on the rights to participate in the affairs of a local authority (CETS No. 207)."
See, furthermore, the module 'Transparency' of CLRAE's online-tool, 'bE-Open: Open Local Government | A tool for action':
"Transparency
The principle of transparency is applied to ensure that those affected by administrative decisions have comprehensive information about the results and implications of policies and about the process of decision-making. The public availability of information about government policies, programmes and activities enables citizens and local communities to gain a clear understanding of government actions, make informed choices, and participate in local decision-making processes. It also enables elected officials, those in government and those in opposition, to take informed decisions and to exercise effective scrutiny and hold the executive to account for their actions. In addition, access to information is essential for journalists and civil society representatives to effectively perform their watchdog functions and hold the government accountable.
Local government should make data available to the public in an accessible format and do so in a timely manner. This enables citizens and stakeholders to participate in decision-making processes from an informed perspective, and to monitor and evaluate government implementation of policies and decisions in order to hold public officials accountable for their actions. Transparency is achieved through a range of mechanisms, building on the right of citizens to access information. These include the disclosure of the financial assets and interests of senior public officials and elected office-holders, and the publication of information in accessible, intersearchable open-data formats.
According to the definition of the Open Knowledge Foundation, "open data is data that can be freely used, re-used and redistributed by anyone – subject only, at most, to the requirement to attribute and share alike." Therefore, the concept of open data goes beyond the availability of public information and focuses on its use, out of which additional economic, social and political benefits are generated. To make it happen, the data published should be complete, permanent, non-exclusive, non-discriminatory, and non-proprietary, as well as provided by primary sources, in a timely manner and in machine-readable formats (more information here and here).
Limited access to public information negatively affects public trust towards public institutions, increases potential corruption risks, and restricts opportunities for various stakeholders to monitor government performance. It also inhibits citizens and stakeholders’ efforts to participate in policymaking and to design evidence-based policy recommendations for positive changes. The practice shows that access to information legislation and proper enforcement measures are an essential part of the enabling environment for citizens’ access to information."
2. The CoE and Open Government
CLRAE Resolution 435 (2018) of 7 November 2018 'Transparency and open government':
"1. Transparency and open government is one of the priority areas that the Congress of Local and Regional Authorities of the Council of Europe identified in its roadmap of activities on the prevention of corruption and the promotion of public ethics at local and regional levels that was adopted at its 31st Session, October 2016.
2. The concept of "open government" encompasses a wide range of practices, which can lead to new ways of governing, both from the governments’ and citizens’ perspective. It can promote good governance and encourage better decision making. By helping to reduce corruption or to promote more effective services, open government is a powerful tool to tackle some of the problems local democracy may face.
3. Transparency, participation and accountability, the key principles of open government, require innovation on the part of local and regional authorities in their interaction with citizens and how they manage their administrations. Transparency requires authorities to make it easier for citizens to access information, notably through open data and records management. It should go in hand with greater participation of civil society in the public decision-making process, including protection for whistleblowers. This increase in participation should also be fuelled by greater accountability of authorities, through the use of audits, codes of ethics and public scrutiny.
4. An "open government" strategy can be applied to a wide range of government activities, including not just budgeting, law making and policy making, but also areas such as contracting and service delivery, where local and regional authorities often work with partners and stakeholders.
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CLRAE Recommendation 424 (2018) of 7 November 2018 'Transparency and open government'
"7. In the light of the above, the Congress
[...]
8. Recommends that the the Committee of Ministers call upon the governments of its member States to:
a. adopt common open government standards, in particular by:
i. drawing from the six principles of the International Open Data Charter;
ii. supporting the adoption of common open government standards, such as the Open Contracting Data Standard
(2015);
iii. supporting the implementation of the four principles identified in the Code of Good Practice for Civil Participation in the Decision-Making Process, namely participation, trust,
accountability and independence, as necessary to ensure good co-operation between civil society and governments;
b. encourage territorial authorities to publish key documents and information, and in particular:
i. encourage the publication of budget documents; ii. provide information concerning the levels of public service that people are entitled to;
iii. facilitate access to data that is understandable, for use by the public and the private sector;
iv. promote the publication of key documents in multiple languages;
c. support public consultation processes;
d. support effective monitoring and implementation of transparency measures at local and regional level, notably by:
i. ensuring that ombudsperson’s offices play an active role in the implementation of open government;
ii. ensuring regular internal and/or external audits of local authorities;
iii. facilitating the carrying out of social audits by NGOs at the local level;
e. involve all stakeholders in promoting transparency and open government at local and regional levels, and in particular:
i. encourage greater budget literacy of parliamentarians, government officials, elected representatives, journalists and civil society representatives;
ii. raise public awareness of the importance of civil society, NGOs and whistleblowers in tackling problems of corruption and waste in local and regional government;
f. ensure that their legislation is compatible with the principles set out in this recommendation and its explanatory memorandum
See also the Explanatory memorandum to both CLRAE recommendations (Report CG35(2018)14final of 7 November - rapporteur A. Glaser)
1. The Committee of Ministers has carefully examined Recommendation 424 (2018) of the Congress of Local and Regional Authorities of the Council of Europe on "Transparency and open government" which it transmitted to its competent intergovernmental committee, the European Committee on Democracy and Governance (CDDG), for information and comments.
2. The Committee stresses its commitment to the concept of "open government", based on the principles of transparency, participation and public accountability. It points out that these are core principles of a number of Council of Europe instruments and that these instruments thereby contribute directly to strengthening and promoting the concept of "open government".
3. In addition to the Council of Europe’s 12 principles of good democratic governance and the Guidelines for civil participation in political decision making, adopted on 27 September 2017, the Committee of Ministers would draw particular attention to Recommendation CM/Rec(2018)11 on the need to strengthen the protection and promotion of the civil society space in Europe, which it adopted on 28 November 2018. The recommendation states, in particular, that member States should "ensure that everyone, including human rights defenders, can effectively participate in decision making, notably by giving them full access to information, taking into account the Council of Europe Convention on Access to Official Documents (CETS No. 205)".
4. The Committee points out that the Convention on Access to Official Documents (Tromsø Convention) is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities. 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. The Committee believes that this convention, which still has to be ratified by one State to enter into force, can contribute to strengthening good governance at all levels, including local and regional level. It is one of the six conventions that will be available for member States to sign and ratify at the special Treaty Event to be organised on 16 May 2019 in Helsinki in the context of the celebration of the Council of Europe’s 70th anniversary and the next Session of the Committee of Ministers.
5. It also stresses that the right to seek and receive information is fundamental in a genuinely democratic society and forms an integral part of the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights.
6. The Committee has noted with interest the measures proposed by the Congress in paragraph 8 of its recommendation and calls on member States to give them particular consideration in view of the positive impact their implementation can have on the efficiency and quality of governance. It believes that the measures proposed are likely to contribute to increasing trust, credibility and legitimacy of democratic institutions at local level, thus enhancing democratic security.