European Union
Name of law:
First adopted: 2001
First adopted: 2001
Introduction
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 5 | 6 |
| 2 | Scope | 19 | 30 |
| 3 | Requesting Procedures | 19 | 30 |
| 4 | Exceptions & Refusal | 24 | 30 |
| 5 | Appeals | 22 | 30 |
| 6 | Sanctions & Protections | 1 | 8 |
| 7 | Promotional Measures | 6 | 16 |
| ∑ = 96 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | Partially | 1 | Article 15 (ex 255) of the Treaty on the Functioning of the European Union: \"Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.\" | The EU treaties create a right of access to documents but not more broadly to information. Furthermore, this right is limited to natural and legal persons within the EU, below international standards and weaker than in countries which create a full right to information. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | Paragraph 11 of the Preamble states: \"In principle, all documents of the institutions should be accessible to the public.\" In addition, Paragraph 4 of the preamble states “The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.†Also Article 2.1 of Regulation 1049/2001 states that “1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.†| Regulation 1049/2001 is clear that there is a broad presumption in favour of openness, with limited exceptions. |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | YES | 2 | 3.1 See Article 15 above and the Preamble of Regulation 1049, Paragraph 1, 4, 6, 10, 15. 3.2 See Article 15 above and the Preamble of the Regulation 1049, Paragraph 2 | 3.1 Paragraph 1 of the Preamble states:\"...the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.\" 3.2 Paragraph 2 of the Preamble states: \"Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy.\" |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | Partially | 0 | Article 2, Section 1 and 2. | The right of access is limited to citizens, residents and legal persons registered in the EU with it being optional to grant non-citizens access. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 3 | 1.3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. Article 3(a) \"document\" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution\'s sphere of responsibility\" | The two provisions which refer to the scope of the Regulation in terms of the material to which it applies are broad. 1 point has been deducted for the limitation to \"documents\". |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | Partially | 1 | Article 3(a) states: \"document\" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution\'s sphere of responsibility\" | Although the definition of document is broad, it has been interpreted as not giving a right to pose questions or ask for information - such requests are processed as part of the good administrative practice rather than the access to documents Regulation. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | YES | 6 | TFEU Article 15 Section 3 grants \"a right of access to documents of the Union institutions, bodies, offices and agencies\" The TFEU excludes from this otherwise wide scope the Court of Justice of the European Union, the European Central Bank and the European Investment Bank, which are “subject to this paragraph only when exercising their administrative tasks.†| As there are key EU bodies for which the right only applies to the administrative information, we have deducted points: 1 for ECB, 1 for EIB. A further problem is that while the treaties apply to this right, the law has not been developed to cover these bodies. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 3 | TFEU Article 15 Section 3 as above | The European Parliament is fully covered by the TFEU and Regulation 1049/2001 . We note that the Parliament\'s rules of proceedure limit the definition of documents to those documents \"drawn up or received by officers of Parliament ... by Parliament\'s governing bodies, committees or interparliamentary delegations, or by Parliament\'s Secretariat.\" and exclude documents received by MEPs and their offices when they are not formally tabled as part of a Parliamentary process. For this reason 1 point has been deducted. |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 1 | TFEU Article 15 Section 3 : \"The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.\" | The TFEU limits access to administrative documents from the European Court of Justice. |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | TFEU Article 15 Section 3 as above | Not applicable in the case of the EU but as all EU bodies are covered, points have been awarded to make it comparable. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | TFEU Article 15 Section 3 as above | All EU bodies are covered, this includes bodies such as the European Ombudsman. |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | YES | 1 | TFEU Article 15 Section 3 as above | The Regulation does not apply to private bodies. Private bodies which receive significant EU funds are not subject to the right of access to documents. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | Article 6, Section 1. | Section provides: \"...The applicant is not obliged to state reasons for the application.\" |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 1 | Article 6, Section 1. \"Applications for access to a document shall be made...in a sufficiently precise manner to enable the institution to identify the document\" | Since 1 April 2014, the European Commission has adopted an official policy and no longer accepts requests if requesters do not provide a postal address; some other bodies have followed suit. Some bodies have online forms that require personal information to be filled in, such as the European Court of Justice. Others, such as the European Ombudsman do not have requester identification requirements. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | Article 6, Section 1.\"Applications for access to a document shall be made in any written form, including electronic form…and in a sufficiently precise manner to enable the institution to identify the document.\" | If a requester does not mention the word documents or the Regulation 1049 and poses a question they may not be granted access under Regulation 1049 but rather referred to access to information procedures under the Code of Good Administrative Practice. |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | Article 6, Section 4 \"The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made.\" In addition, Section 2 provides:\"If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so\" | There is a clear duty in Article 6 to provide assistance to requesters. |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | NO | 0 | No such obligation is created by the legal framework. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | Partially | 1 | Article 7, Section 1, \"An acknowledgement of receipt shall be sent to the applicant\". | There is a requirement to provide an acknowledgement but as no timeframe is specified, 1 point has been deducted. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | Article 6 Section 4: The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made. | This language can be taken as requiring instituions to refer requesters to other institutions; there is no transfer obligation, hence one point has been awarded. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | Article 10, Section 1.\"The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant\'s preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.\" \"3. Documents shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant\'s preference.\" | The Regulation makes clear that the authorities are required to comply with requesters\' preferences. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | Article 7, Section 1.\"An application for access to a document shall be handled promptly\" | It is understood that\"promptly\" corresponds to as soon as possible. |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | Article 7, Section 1. \"...Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal ...\" | The established timeframe to respond requests, is 15 working days, so 1 point has been scored for this. |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | Article 7, Section 2 \"In exceptional cases...the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.\" | The maximum permitted extension is 15 working days so 2 points have been awarded. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | Article 10, Section 1\"...Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.\" | The regulation does not state specifically that it is free to make a requests but clearly limits charging to certain circumstances and implies that requesting is free. 2 points awarded. |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | YES | 2 | Article 10, Section 1 \"...Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.\" | There are clear provisions that limit fees to reproduction costs and the first 20 pages are free; whilst there is no specific rule on fees being set centrally in practice there are no charges so 2 full points have been awarded. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | No relevant provision. | There is no provision for this. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | Article 16 \"This Regulation shall be without prejudice to any existing rules on copyright which may limit a third party\'s right to reproduce or exploit released documents.\" | There are potential limits on reuse for copyright or data protection reasons (which have been invoked). Furthermore, reuse of PSI *** |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | YES | 3 | The Preamble at Paragraph 12 states \"All rules concerning access to documents of the institutions should be in conformity with this Regulation.\" Article 10.4 states that \"An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.\" The one exception to this is Article 4.1.b which (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data. | The predominance of the rules in Regulation 1049 are confirmed in the EU\'s rules on classified documents which in Paragraph 10 of the Preamble state that “This Decision is taken without prejudice to Articles 15 and 16 of the Treaty on the Functioning of the European Union (TFEU) and to instruments implementing them.†1 point has been deducted for the deferral to data protection regulations, which are an exception to this general principle. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | YES | 10 | Article 4, Section 1, 2 and 3. | None of the exceptions are out of line with international standards. |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | YES | 3 | Article 4, Section 1, 2 and 3. | The data protection regulation does not contain a harm test, and regulation 1049/2001 is subordinate to the data protection rules, so in effect there is no harm test for the privacy exception |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 1 | Article 4, Section 1, 2 and 3. | The exceptions that do not contain a public interest override are: public security, defence and military matters, international relations, the financial, and the monetary or economic policy of the Community or a Member State and protection of personal data and privacy. 3 points deducted. Only commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, and the purpose of inspections, investigations and audits, and internal deliberations, are subject to a public interest test. There are no hard overrides. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | Article 4, Section 7: The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period. | There is a time limitation so 1 point awarded for that, but no points for the time frame as it is potentially exceptionally long - 30 years as opposed to the maximum of 20 years we allow. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | Article 4, Section 4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed. Section 5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement. | EU institutions shall consult with third parties unless it is clear that the document shall or shall not be disclosed. Member States have the right to require that a document is not released without prior consultation, but they do not have a veto over this decision. The standard time frames must be respected. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | Article 4, Section 6 \"If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.\" | The partial access provision is clear and comprehensive |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | Article 7, Section 1. \"... the institution shall either grant access to the document requested ... or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.\" | In case of refusal, the Institution must state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application. |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | Article 8, Section 1 | Internal appeals or \"confirmatory applications\" must be submitted in 15 days and the EU body has 15 days to respond. In exceptional cases an extension of a further 15 days may be applied. The EU body must inform the applicant of the reasons for any refusal and of the subsequent appeal options. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | Paragraph 13 of the Preamble of the Regulation; Article 8, Section 1; EP Decision relating the Ombudsman´s duties, Article 4a. | Section 1 provides: \"...In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman\" |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | EP Decision relating the Ombudsman´s duties, Article 6, Section 1. rticle 8 of the Ombudsman\'s Statute: Ombudsman who no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct may be dismissed by the Court of Justice of the European Communities at the request of the European Parliament. | The Ombudsman is appointed by the European Parliament. Security of tenure is granted with the acceptable grounds for dismissal being serious misconduct or no longer meeting the conditions for the performance of duties; dismissal in this case is by the European Court of Justice at the request of the Parliament, which is a sufficient protection. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | Here you can see the draft budget for the European Ombudsman 2015, which is part of the general budget http://eur-lex.europa.eu/budget/data/DB/2015/en/SEC08.pdf Article 11.2 of the European Ombudsman\'s Statute states The officials and servants of the Ombudsman\'s secretariat shall be subject to the rules and regulations applicable to officials and other servants of the European Communities. Their number shall be adopted each year as part of the budgetary procedure. | Ombudsman reports to the parliament and budget is part of the Multi-annual financial framework, which is decided on by the main 3 EU institutions. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | YES | 2 | EP Decision relating the Ombudsman´s duties, Article 6, Section 2. | Section provides: \"The Ombudsman shall be chosen from among persons who are Union citizens, have full civil and political rights, offer every guarantee of independence, and meet the conditions required for the exercice of the highest judicial office in their country or have the acknowledgement competence and experience to undertake the duties of Ombudsman.\" |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | NO | 0 | EP Decision relating the Ombudsman´s duties, Article 2, Section 1, 2. | Access to classified information or documents, shall be subject to compliance with the rules on security of the Community institution or body concerned (1 point loss). No mention about the inspection powers (1 point loss). |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | EP Decision relating the Ombudsman´s duties, Article 3, Section 6. | The Ombudsman makes Recommendations that are not binding. |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | NO | 0 | EP Decision relating the Ombudsman´s duties, Article 3, Section 6. | The Ombudsman has the power to make appropiate draft recommendations and send a report to the European Parliament and to the institution or body concerned, but not to order remedies nor to declassify information. No points awarded. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Paragraph 13 of the Preamble of the Regulation | Appeal to the European Court of Justice within two months of the refusal |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | Appealing to the Ombudsman is free and you do not need a lawyer | |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | EP Decision relating the Ombudsman´s duties, Article 1, Section 2. | Section provides: \"Any citizen of the Union or any natural or legal person... may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies\" |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | EP Decision relating the Ombudsman´s duties, Article 1, Sections 4 - 9. | Both the appeals process for the Ombudsman and the European Court of Justice are precise. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | The Statute of the European Ombudsman, Article 2.2. “Any citizen of the Union or any natural or legal person residing or having his registered office in a Member State of the Union may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman shall inform the institution or body concerned as soon as a complaint is referred to him.†| For the oversight the burden is on the EU body to demonstrate that it did not act in breach of the rules. Once the European Ombudsman determines that a complaint is admissible, the EU institutions must respond and it is the Ombudsman that takes the whole process forward. |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | NO | 0 | Not mentioned in Regulation 1049/2001. Ombudsman can recommend but not require this; court tends to rule on a particular case although can make general comments. | |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | NO | 0 | No sanctions forseen in the regulation and Access Info Europe not aware of any sanctions ever being imposed by the Courts nor a legal basis for it. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | The Court rules on a case by case basis. The Ombudsman may make recommendations for reforms but these are not binding. | |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 1 | EP Decision relating the Ombudsman´s duties, Article 10, Section 3.\"Articles 12 to 15 and Article 18 of the Protocol on the Privileges and Immunities of the European Communities shall apply to the Ombudsman and to the officials and servants of his secretariat.\" | There is immunity for the Ombudsman staff but not other EU officials under this regulation. Furthermore, Article 14.5 of the classified docs decision states that “Any individual who is responsible for a breach of the security rules laid down in this Decision may be liable to disciplinary action in accordance with the applicable rules and regulations. Any individual who is responsible for compromising or losing EUCI shall be liable to disciplinary and/or legal action in accordance with the applicable laws, rules and regulations.†|
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | NO | 0 | Since January 2014 the EU institutions are obliged to introduce internal whistleblowing rules. However, to date, only the European Commission, European Ombudsman and European Court of Auditors have adopted rules. | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | NO | 0 | Not specifically mentioned. Some EU bodies do have officials responsible for transpraency but this is not a requirement of Regulation 1049. Article 15 requires that \"The institutions shall develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation.\" but this has not been interpreted as requiring all to have information officers | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | NO | 0 | Not specifically mentioned. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | Partially | 1 | Paragraph 14 of the Preamble of the Regulation establishes \"Each institution should take the measures necessary to inform the public of the new provisions in force\" | Only one point granted as ths is a preambular proposal rather than a clear requirement. |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | Partially | 0 | There is no provision in Regulation 1049/2001, with the exception of Paragraph 14 of the Preamble which requires a register to be established (see below), and while this is framed as making effective the exercise the right of access, by permiting citizens to know which documents exist, it is not precisely the same as requiring good records management, hence no points awarded. | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | YES | 2 | Paragraph 14 of the Preamble of the Regulation: \"In order to make it easier for citizens to exercise their rights, each institution should provide access to a register of documents.\"; Article 11, Section 1: \"To make citizens\\\' rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay.\", Article 11.2 elaborates on the registers. | There is a clear requirement to establish a register of documents. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | Partially | 1 | Paragraph 14 of the Preamble of the Regulation. | Paragraph 14 establishes:\"Each institution should take the measures necessary to...train its staff to assist citizens exercising their rights under this Regulation.\" However, being preamblar, this is a weak provision so only 1 point awarded |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 17. | Article provides: \"Each institution shall publish annually a report for the preceding year including the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register.\" |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | Partially | 0 | As noted above, each institution is required to produce a report but there is no requirment for any body to produce a consolidated report nor to submit it to the Parliament. |
