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

Freedom of Information Act By Kevin Lees1

Tout le monde est pour la transparence, mais tre trop poulaire, le terme risque de ne plus avoir de signification prcise. Jacob Sderman, European Ombudsman, 1995-2003.2 An entirely desirable objective was pursued singlemindedly to the exclusion of equally valid competing interests [and] a lack of cost-benefit analysis; in more commonsensical terms, a loss of all sense of proportion. then-professor (now U.S. Supreme Court justice) Antonin Scalia, on the 1974 Amendments to the U.S. Freedom of Information Act.3 Freedom of information and government transparency are a bit like Her Majesty the Queen of the United Kingdom, the American soldier or American family values: it is politically unpalatable not to support them in general, but substantively impossible to define that support in particular. Yet the ability of the citizen to petition his or her government for information about the way in which its officials govern must rank among the most fundamental aspects of what it means to live in a democratic society. Indeed, the touchstones of 21st century democratic values accord the right to access public information a haloed place; the European Charter of Fundamental Rights lists in Article 42 the right of access to documents (Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.).4 Challenges under the Freedom of Information Act (FOIA) in the United States often come hand-in-hand with First Amendment arguments.5 The right of public access, however balanced by countervailing objectives and doctrines, is a vital competent of the kind of transparent government that lies at the core of healthy democratic decision-making.
J.D. candidate at New York University School of Law. Special thanks to Joanna Mendes, Professor Jacques Ziller, Professor Martin Rhodes and Professor Neil Walker of the European University Institute in Florence, Italy, and Professor Rachel Barkow at NYU. 2 Jacob Soderman, Le citoyen, ladministration et le droit communautaire, REVUE DU MARCH UNIQUE EUROPEN, 19-44 (1998). 3 Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, March/April 1982, at 16. 4 Charter of Fundamental Rights of the European Union, Dec. 7, 2000, Art. 42. 5 See, e.g., Ctr. for Natl Sec. Studies v. United States Dept of Justice, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 1041.
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Nonetheless, not until 40 years after the initial signing of the Treaty of Rome, with three intervening intergovernmental conferences, did the European Economic Community (later the European Union) finally create anything resembling a fundamental or constitutional right to access to documents. A further four years of acrimonious intergovernmental debate passed before European citizens could boast a statutory right to access EU documents. Today, that statutory right in the form of Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents establishes the default position that EU citizens may petition the Parliament, Commission, and Council for documents, limited by several restrictions and exceptions. Now only in its fifth year of application, the Regulation has been subject to criticism from both within and outside the EU as insufficient or ineffective.6 This paper will compare and contrast the long-standing American FOIA with the nascent European right to documents a right that has only recently been enjoyed at the national level in most EU Member States.7 The first part of this paper will provide a theoretical context for the freedom-ofinformation debate in Europe. What do broad terms such as transparency mean? Why is transparent so important to the democratic tradition? What impact does informationaccess have upon the perceived democratic deficit currently plaguing the European Union (or not plaguing, depending on who you ask)? Why look to legal traditions outside of Europe, and specifically to the administrative and regulatory state model of the United States? Many scholars both European and American, both neofunctionalist and supranationalist, and from legal theory and European integration theory have made perceptive contributions on the topic, which lies upon several major fault-lines in contemporary European policy debates. The second part of the paper will examine the texts of both 5 U.S.C. 552 in the United States (FOIA) and Regulation 1049/2001 in the European Union. For what reasons and whose motivations were the laws enacted, in 1966 and 1974 in the United States, and in 2001 in the European Union? In what respects are the laws similar? In what
See, e.g., European Citizen Action Service, Preliminary Report on Improving Citizens Access to Documents, Oct. 17, 2003, avail. http://www.ecas.org/product/91/default.aspx?id=308. 7 The United Kingdom, for example, only adopted a Freedom of Information Act in 2000. See Patrick Birkinshaw, Freedom of information in the UK and Europe: Further progress?, 19 GOVT INFO. Q., 77-86 (2002).
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respects are they different? In what respects must the two be different, given the structural differences between the United States and the European Union? Finally, in what ways have U.S. federal courts and administrators subsequently interpreted FOIA? How have the European Court of Justice, the Court of First Instance, and the other institutional actors and Member States contributed greater understanding to the initial Regulation? The third and final part of the paper will suggest five recommendations for reform to strengthen the right to public access to documents in the European Union, both looking to the American experience and bearing in mind the sui generic nature of the European Union. The United States has almost 40 years of FOIA jurisprudence and interpretation, from which both positive and negative lessons can be drawn. At the same time, the novelty and flexibility of the European Union both provides opportunities in the arena of information-freedom that do not and cannot exist in the United States and erects barriers that limit access to information in ways that are equally inapplicable in the United States. 1. Providing a Theoretical Context for the Debate on Freedom of Information in Europe 1.1 What is Transparency? The European Commissions 2001 opus on good governance lays down the following goal: 8 The institutions should work in a more open manner. Together with the Member States, they should actively communicate about what the EU does and the decisions it takes. They should use language that is accessible and understandable for the general public This is of particular importance in order to improve the confidence in complex institutions. Certainement, the goal should always be that the institutions work in a more open manner. But what exactly does more open mean? In discussing the guidelines for the use of the open method of co-ordination, the White Paper stresses that the data and information generated should be widely available.9 Although the White Paper mentions openness 12 times, the most specific recommendation it offers is that the Commission ought to provide up-to-date, on-line information on preparation of policy through all

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European Governance, a White Paper, July 25, 2001, 10. Id., at 22.

stages of decisionmaking.10 Too often, reports such as the White Paper on Governance fail to define the substantive content of words like openness, allowing them to become open vessels that hold both the broadest notions of government transparency and the cynical window-dressing version of openness. Public access to documents rests at the core of governmental transparency. Pierpaolo Settembri, in a recent paper in the Journal of Common Market Studies, suggests that transparency is comprised of the following five attributes: (1) physical access to the institutions premises, (2) access to documents, (3) transparency of debates through direct or indirect accessibility to interested parties, (4) intelligibility and transparency of voting, and (5) clarity of interests behind legislative choices.11 Access to documents, in particular, allows EU citizens to learn what has been decided by and within the institutions, and is a tool for other bodies and the electorate to monitor EU activity.12 In a broader conceptualization, Francesca Bignami argues that EU citizen participation rights have evolved in three generations since the early 1970s. The European Court of Justice first led the way by creating the right to a fair hearing.13 The push for greater transparency in the 1990s marked the second wave of participation rights. The latest generation of rights still evolving in its character concerns the role that civil society should play in the rulemaking process, through the open method of governance or other methods of direct citizen participation. Bignami highlights in particular the individual right of access to information as the central legal right guaranteeing government transparency as both an informal and formal tool to exert influence on legislative and administrative bodies.14 1.2 Why Transparency? At least two strong theoretical rationales exist for transparent government and the right to access public documents: (1) as a means to ensure informed democratic participation and (2) as an ends to ensure governmental actors are not acting ineffectively, inefficiently, or outside the boundaries of their legal duties. The rationales
Id., at 4. Pierpaolo Settembri, Transparency and the EU Legislator: Let He Who is Without Sin Cast the First Stone, 43 J.COMMON MKT. STUD. 637, 642-43 (2005). 12 Id. 13 See Francesca Bignami, Three Generations of Participation Rights in European Administrative Proceedings, 68 LAW & CONTEMP. PROBS. 61, XX (2004). 14 Id., at xx.
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are complementary, but it is important that they remain theoretically distinct. In the former rationale, public access is a means to the ultimate end of participation; in the latter (perhaps more skeptical) rationale, public access is the end itself a check on the power of nameless and faceless Brussels bureaucrats. Effective political participation can only exist if citizens are informed of both the substantive content and the administrative procedures of their government. This extends not only to an informed citizenry at election-time, but to the active engagement of interested individuals at all levels of the decision-making process, especially in a world where more legislative tasks are delegated to deliberative and specialized administrative bodies. Consequently, it is no surprise that communication lies at the heart of Jrgen Habermass discourse theory of democracy, a model that ranks as one of the most powerful and well-known arguments for discursive, participatory democracy. Institutions in a constitutional state should both (1) enable the communicative power of a rationally formed will to emerge and find binding expression in political and legal programs and (2) allow this communicative power to circulate throughout society via the application of legal programs to foster social integration.15 Equal opportunities for the political use of communicative power and communicative freedom require a legally structured deliberative praxis in which the discourse principle is applied, such that all formally and procedurally correct outcomes enjoy a presumption of legitimacy.16 It goes almost without mention in Habermass Between Facts and Norms that such a legally structured deliberative praxis presupposes a sufficiently liberal right to public access to documents and a minimal threshold of transparency in decision-making. Moreover, Habermas, citing R.A. Dahl, notes that deliberative politics requires, among other elements, adequate and equal opportunities to determine the policies that best serve the citizens interest and to acquire an understanding of the matter of a government policy.17 Thus, from the outset of opinion-and-will-formation, a certain expert knowledge is requisite.18 Legal norms must assume the form of comprehensible, consistent, and
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JRGEN HABERMAS, BETWEEN FACTS AND NORMS 176 (William Rehg trans., 1997). Id. at 127. 17 Id. at 316, citing R. A. DAHL, DEMOCRACY AND ITS CRITICS 112 (1989). 18 Id. at 164.

precise specifications, must usually be formulated in writing and be made now to all addresses.19 Roberto Garagalla, in an essay on public deliberation in the Council of Ministers, notes that in the Anglo-American tradition, governmental actors must force themselves to make their decisions comprehensible to citizens in order to bring about any meaningful participation.20 Freedom of governmental information must be a prerequisite to informed citizen participation. Alternatively, the knowledge that government documents will be open to citizen request for any reason is a powerful incentive against government overreaching and ineffectiveness. The aim in allowing citizens to demand public documents that highlight the manner in which the Council, Commission, and Parliament have reached decisions is that those institutions will be forced to provide coherent reasons for their actions and will be hesitant to overstep the boundaries of power set out for them in the Treaties. Peter Lindseth argues that the most important role of transparency within the European Union is the role it plays in demanding accountability:21 Rather than viewing broader transparency and third-party participation rights as a means of establishing a directly-deliberative democracy at the supranational level one should favour broadening such rights for a different reason: as tools for national legislatures to monitor the activities of their national executives and bureaucratic officials as they participate in the process of supranational regulatory norm-production. Transparency and participation rights are means by which national legislatures can enlist both social interests and the courts in the task of supervising the Community in the exercise of delegated normative power. Lindseth has even gone so far as to claim that the European Unions democratic deficit is actually an accountability deficit because of a lack of sufficient transparency and participatory rights in the EU policy-making regulatory process.22 One important prerequisite for the transparency-as-accountability rationale, however, is that a willing body of media, civil groups, and other watchdogs sufficiently committed to holding the European Union accountable actually exists. Without the threat
Id. at 143. Roberto Gargarella, Demanding public deliberation; The Council of Ministers: some lessons from the Anglo-American history, in DEMOCRACY IN THE E UROPEAN UNION: INTEGRATION THROUGH DELIBERATION? 196 (Erick Oddvar Eriksen and John Erik Fossum, ed. 2000). 21 Peter Lindseth, Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity, in GOOD GOVERNANCE IN E UROPES INTEGRATED MARKET 158-59 (Christian Joerges and Renaud Dehousse, ed. 2002). 22 Peter Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 COLUM. L. REV. 628, 684 (1999).
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that EU policy-making will be exposed to criticism, however, the accountability rationale evaporates somewhat. Indeed, Carol Harlow wonders whether civil society has sufficiently developed at the European level to provide this kind of rigorous oversight.23 Which rationale is more important? If one is most concerned with democratizing and legitimizing the supranational aspect of the European project through more active citizen participation, the participation rationale is more palatable. Conversely, if one is more concerned with subsidiarity or the limitation of the European Unions supranational aspects, the accountability rationale is more agreeable. Nonetheless, it is important to keep in mind that both participation and accountability are values to aspire for in a democratic society; regardless of the contours of the supranationalist versus neofunctionalist debate, there are good reasons to champion public access to documents, and the line between the two rationales blurs. Those who champion a new deliberative politics as the solution to the European democratic deficit debate also appreciate the accountability benefits of transparency. Those who champion transparency as a check on supranational power also appreciate the benefits of a more engaged and active civil society. As advocate general Legr wrote in a recent key decision on access to documents:24 [T]he openness of the public authorities action is closely linked with the democratic nature of the institutions. The fact that citizens are aware of what the administration is doing is a guarantee that it will operate properly. Supervision by those who confer legitimacy on the public authorities encourages them to be effective in adhering to their initial will and can thereby inspire their confidence, which is a guarantee of public content as well as the proper functioning of the democratic system. At the highest level of that system, providing the public with information is also the surest method of involving them in the management of public affairs. The freedom-of-information issue also implicates the democratic deficit debate. Enhanced access to documents can only help ameliorate the perceived democratic deficit in the European Union, whether or not one believes there is currently a democratic deficit at all. One need not take a position on the question of the European Unions (imminent or hyperbolic) democratic crisis to acknowledge that greater transparency will in general add to the European Unions democratic credentials.
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Carol Harlow, ACCOUNTABILITY IN THE E UROPEAN UNION 26 (2002). Case C-353/99P, Council v. Hautala, 1999 ECR II-2489 [1999].

In the now-uncertain push for a European Constitution, several draft articles committed EU actors to even greater transparency. For example, Article I-49 would have placed EU institutions under a duty to conduct their work as openly as possible. Article III-301 would have required both the Parliament and the Council to publish documents involving their deliberation on legislative matters. Even those scholars who believe the democratic deficit debate is much ado about nothing support greater procedural rights. Andrew Moravcsik has argued not only that the European Union is more democratic than its individual Member State constituents, but even that the EU may be too democratic. Nonetheless, Moravcsik admits that in the area of administrative procedure, the European Union could stand to increase the formal rights enjoyed by residents of the [United States] under the Administrative Procedure Act surpass those formally guaranteed in Europe.25 Such rights include not only more liberal access to documents in general, but vigorous judicial review, agency adjudication that mirrors court adjudication, and the U.S. process of notice-and-comment rulemaking.26 1.3 The Appropriateness of the United States Administrative and Regulatory State as a Comparative Model Twelve years ago, in an article that changed the path of European integration theory, Giandomenico Majone argued that, rather than thinking about the European Union in classic, Westphalian nation-state terms, the European Union is a regulatory state much akin to the headless administrative Fourth Branch of the U.S. government.27 While the United States had abandoned the kind of command-and-control regulation first adopted in the late 19th century and later popularized during the New Deal, Europe has abandoned the great socialist experiments in nationalized industries.28 The processes of deregulation in the United States and denationalization in Europe led to essentially the same phenomenon, albeit in different structural forms: a wide delegation of legislative, judicial, and administrative power in the hands of regulatory agents unaccountable in the traditional means available to modern democracies. Indeed, the proliferation of U.S.
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Andrew Moravcsik, In Defense of the Democratic Deficit: Reassessing Legitimacy in the European Union, 40 J.COMMON MKT. STUD. 603, 621 (2002). 26 5 U.S.C. 553 (2005). 27 See Giandomenico Majone, The Rise of the Regulatory State in Europe, 38 J.COMMON MKT. STUD. 272 (1994). 28 Id.

administrative agencies and the growing powers of European supranational institutions have led to virtually the same sets of questions about democratic deficit, accountability, participation, political control, agency drift and agency capture. In Richard Stewarts words, the key puzzle is how to control and validate the exercise of essentially legislative powers by administrative agencies that do not enjoy the formal legitimation of one-person, one-vote election.29 The U.S. administrative and regulatory state arguably lies outside the structure mandated by the U.S. Constitution, its existence justified only in the due process guarantees outlined in the quasi-constitutional American Procedure Act. Likewise, it is unclear just how the European Parliaments democratic legitimacy can be justified (other than the indirect transmission-belt chain stretching from national electorates to national parliaments to governments that engage in interstate bargaining and delegation) outside of a quasi-constitutional Treaty of Rome. Lindseth, too, has placed the European trend of delegating increasing amounts power to supranational bureaucrats actors in the context of wider delegation at the national level, a diffusion and fragmentation of normative power away from national parliaments which began in the 1920s and 1930s in many nation-states.30 In this light, Majone has written that U.S. procedural guarantees remain much more prominent than their European analogues: Regulation in Europe is seen to be highly discretionary, suffering from weak accountability to Parliament, weak judicial review, absence of procedural safeguards, and insufficient public participation.31 Indeed, Majone and Lindseth have not been the only commentators to suggest that the European Union should adopt something akin to the APAs notice-and-comment rulemaking procedure as a measure to allow for more participation and due process rights in European regulatory policymaking.32 Although the concept of Europe-as-regulatory-state has proven very useful, it is necessary to keep in mind that Majone is writing primarily for a political science audience, not a legal audience, and the European Union is not a series of administrative
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Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1688 (1975). 30 Lindseth, Delegation is Dead, at 144. 31 Majone, at 94. 32 See, Francesca E. Bignami, The Democratic Deficit in European Community Rulemaking: A Call for Notice and Comment In Comitology, 40 HARV. INTL L. J. 451 (1999)

agencies, or even a super-agency, but an international body established by treaty. Thus, the analogy is a departure point for broad conceptual analysis, but cannot be taken too literally. But if the European Union is really just a supranational version of a regulatory state, then a comparison between European and American approaches to public document access become even more relevant. If EU bureaucrats are performing negative regulation (as opposed to positive regulation and redistributive policy) in a similar manner as American administrative agencies, it is useful for Europeans and Americans alike to examine how the other has innovated procedures of legitimation, access, and accountability. Furthermore, FOIA has been federal U.S. law for 40 years, giving it a longevity rivaled by few other freedom-of-information regimes. The European Union, in its own quest to balance out the appropriate level of access to documents, can benefit from the hindsight of both the successes and errors of FOIA. 2. FOIA and Regulation 1049/2001 in Comparison 2.1 Regulation 1049/2001s Background Although the European Union adopted the right to public access to documents only officially in 2001, the Regulation was the culmination of more than a decade of increased transparency among the EU institutions, following a renewed emphasis on openness and transparency after the adoption of the Maastricht Treaty (and the obstacles of securing ratification for the treaty), the promulgation of a Code of Conduct for access to Council and Commission documents, the active engagement of the Court of First Instance and the European Court of Justice in aggressively interpreting access rights, and the creation of a quasi-constitutional right to public access in the Treaty of Amsterdam. From the outset, it is necessary to appreciate the diversity in approaches to public access to documents among Member States. In the Scandinavian tradition, open administration and freedom of information has been a central component of good government; the Swedish Freedom of the Press Act dates back to 1766 as the first modern piece of freedom-of-information legislation, and ranks among the four fundamental laws that comprise the Swedish Constitution. The notion of offentlighetsprincipen (public access) is at the center of Swedish government: Every Swedish citizen shall be entitled to have free access to official documents, in order to

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encourage the free exchange of opinion and the availability of comprehensive information.33 The Act mandates that any restrictions upon the right to access to official documents must be scrupulously specified by law.34 The Acts statutory exceptions apply only if restriction is necessary having regard to seven narrowly-drawn exceptions, including the security of the Realm or its relations with another state or an international organization, and the protection of the personal or economic circumstances of private subjects.35 The same commitment to freedom of information and open government can be found in other Scandinavian countries. In Finland, the Act on the Openness of General Documents of 1951 similarly protects the right to access most state records and documents, and was strengthened to reduce the discretion of officials to release documents (in favor of more document access) in the past decade.36 Denmarks Freedom of the Press Act of 1851 and its more recent Access to Public Administration Files of 1985 fulfills much the same purpose. Norway has a Freedom of Information Act and Article 100 of the Norwegian constitution enshrines the right to public documents. Other European nations, however, have only recently embraced the concept of public access to documents, and few have embraced this right as enthusiastically as their Scandinavian neighbors. The German government passed a freedom of information law only in 2005; the United Kingdoms Freedom of Information Act dates only to 2000, and Ireland adopted such a law only in 1998. The right to public access to documents is also quite new in the Central and Eastern European countries that entered the European Union in 2004. Neither Italy nor France have been the most enthusiastic proponents of handing over state documents to citizens, although both have adopted laws in the past quartercentury opening government documents to an increasing degree of public access. Frances general Loi n78-753 du 17 juillet 1978 portant diverses mesures d'amlioration des relations entre l'administration et le public et diverses dispositions d'ordre

Article 1, Chapter 2, On the public nature of official documents, FREEDOM OF THE PRESS ACT, Sweden [hereinafter FREEDOM OF THE PRESS ACT], avail. http://www.riksdagen.se/templates/R_PageExtended____6332.aspx 34 Article 2, Chapter 2, FREEDOM OF THE PRESS ACT. 35 Id. 36 More information on Finlands Act on the Openness of General Documents is available at http://www.om.fi/23963.htm.

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administratif, social et fiscal includes a basic rule allowing access to administrative documentss and even established a commission on access to such documents.37 The pressure for a formal commitment to freedom of information had risen at each successive intergovernmental conference. Commentators attribute the Danish electorates narrow rejection of the Maastricht Treaty in 1992 in part to the lack of any treaty requirements for open government or public access rights.38 The European response was to grant a certain right of access to Council and Commission documents, subject to several wide exceptions, in the form of an initially non-binding Code of Conduct, which became binding through the force of several subsequent Council and Commission decisions.39 The 1996 Intergovernmental Conference that led to the Treaty of Amsterdam resulted in real strides toward institutionalizing transparency. Not surprisingly, the Scandinavian countries, particularly Finland (at the time a relatively new member), were at the vanguard of the transparency cause. The Finnish government, as early as 1995 the same year in which Finland formally entered the European Union was trumpeting the need for more transparency and openness at the European level, and prior to the 1996 IGC, submitted a formal proposal on transparency calling for a right for all EU citizens to access to documents.40 Much to its delight and the delight of its Scandinavian cousins, the resulting treaty reflected for the first time a treaty-based commitment to transparency. The resulting Article 255 EC now grants to any EU citizen, whether a natural or legal person, a right of access to European Parliament, Council and Commission documents, subject to certain enumerated principles and conditions to be defined by the institutions in a Regulation.41 An arguably even greater victory for transparency boosters, however, was the inclusion of language in Article 1 of the Treaty on European Union committing the

The Commission dAccs aux Documents Administratifs (CADA). More information is available at http://www.cada.fr/. 38 Bignami, Three Generations, at 10. 39 Code of Conduct of December 6, 1993 concerning public access to Council and Commission documents, Council Decision 93/730, 1993 O.J. L340/41; Council Decision 93/731, 1993 O.J. L340/43; Commission Decision 94/90, 1994 O.J. L46/58. 40 Esko Antola, Finland: From Cautious to Hard-Core Member, in THE AMSTERDAM TREATY: NATIONAL PREFERENCE FORMATION, INTERSTATE BARGAINING AND OUTCOME 133-34 (Finn Laursen, ed. 2002). 41 TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 (1997) [hereinafter EC TREATY] art. 255(1).

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EU institutions to taking decisions as openly as possible and as closely as possible to the citizen.42 Regulation 1049/2001 is the resulting statutory implementation of Article 255. With a less-than-enthusiastic Council and a majority of even-less-enthusiastic Member States, the prospects for a strong freedom-of-information regime were not high. In the last half of 2000, France held the EU Presidency; alongside the Council, the Commission and fellow Member States Germany, Spain, Greece, Italy, Luxembourg, and Belgium, France preferred a system in which documents could be easily protected.43 Aligned in the interest of markedly broader transparency were the European Parliament, the courts, and the Scandinavian countries including Sweden, which followed France in the EU Presidency at the beginning of 2001.44 Thus, the minority in favor of stronger transparency successfully stalled the promulgation of the Regulation until after the French presidency, when the Swedish government could more effectively set the agenda in the favor of greater transparency.45 As a result, the final Regulation amounted to an improvement over the judicially-empowered Code of Conduct already in place, but the compromise nonetheless reflects the hesitancy of the less-enthusiastic actors, especially in the broad exceptions to the right of public access. 2.2 FOIAs Background One need look no further than Isaac Newtons third law of physics46 to understand the context of the Freedom of Information Acts passage: Congress fashioned the modern incarnation of FOIA as a sword to slay the combined dragons of Vietnam and Watergate. After a tumultuous decade in which foreign war and domestic corruption left the American publics trust in government shattered, FOIA alongside similar statutes such as the Government-in-the-Sunshine Act47 was held up as a panacea to ensure more accountable government in the future.

TREATY ON EUROPEAN UNION, art. 1. Bo Bjurulf and Ole Elgstrm, Negotiating Transparency: The Role of Institutions, 42 J.COMMON MKT. STUD. 249, 253 (2004). 44 Id. 45 Id. at 259-60. 46 For every action, there is an equal and opposite reaction. 47 Congress enacted the Government in the Sunshine Act in 1976; the Act requires meetings of virtually all federal agencies to be held publicly (unless the meeting falls into one of 10 statutorily-listed exemptions).
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The original Freedom of Information Act was promulgated as a section of the Administrative Procedure Act in 1966 and signed without controversy by President Lyndon B. Johnson. Todays more strident form of FOIA, however, dates from a series of fundamental amendments added in 1974. FOIA, in its first incarnation, was relatively weak, permitting agencies to drag their feet in releasing documents or charge excessive fees to those who sought the documents.48 The 1974 Amendments changed FOIA in three major respects: they (1) shortened the mandatory time limits on agency response from 30 days to 10, (2) authorized courts to substantively review agency decisions to deny documents, with the power to review relevant documents in camera, and (3) narrowed the investigatory record exception. The result was a skyrocketing of FOIA requests and FOIA litigation challenging agency denials, essentially resulting in the recognizable FOIA that exists today. 49 The most significant reforms to FOIA since 1974 came in 1996, when President Bill Clinton signed into law the Electronic Freedom of Information Act Amendments, which created a category of electronic reading room records, establishing new obligations for agencies to provide access to documents and records on the World Wide Web. Today, all U.S. federal agencies have FOIA sites to serve as electronic reading rooms. FOIA has not been without controversy, however. President Gerald Ford was so hesitant about the potential of the 1974 Amendments to reveal information jeopardizing both national security and internal investigations that he vetoed the bill (Congress overrode the veto, however, and thus the Amendments became law).50 In a famous article, then-professor Antonin Scalia labeled the 1974 version of FOIA the Taj Mahal of the Doctrine of Unanticipated Consequences, decrying the costs to the government to comply in an expedited time frame with FOIA requests and the ability of parties to use FOIA to obtain information about third parties, not the government. Corporations quickly learned that FOIA allowed them to gather information about their competitors that they could not find anywhere else; lawyers soon found that FOIA requests would result in

See Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the Perils and Paybacks of Legislating Democratic Values, 33 EMORY L. J. 649, 658 (1984). 49 Id. at 660. 50 H.R. DOC. NO. 93-383. Freedom of Information Act Veto Message from the President of the United States (Nov. 18, 1974).

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information about adversaries faster than the traditional trial discovery process.51 A 2001 study showed that, among a representative sample of requests for documents over a sixmonth period, only 5 percent of the requests came from journalists, while corporations and lawyers accounted for 65 percent of the requests, giving credence to the charge that, rather than being a tool for the average citizen to access an open government, FOIA has morphed into a tool for corporate espionage and fast-track discovery.52 Perhaps the greatest unintended consequence of the broad public access rights accorded through FOIA has been reverse-FOIA litigation. In a reverse-FOIA suit, the plaintiff seeks to enjoin agency disclosure of a document being sought by another party, presumably a competitor seeking information about its rival. FOIA itself is silent on the subject of such lawsuits, but courts have nonetheless recognized a right to seek to enjoin agency disclosure where disclosure is prevented by statute.53 Nonetheless, agencies are not required to provide notice to third parties when documents concerning those third parties have been requested, and so it is often impossible for a third party to know when it would even be necessary to bring a reverse-FOIA suit. 2.3. Comparing the Statutes 2.3.1 Beneficiaries and Scope Under both FOIA and Regulation 1049/2001, U.S. and EU citizens can solicit their respective governments for documents for any reason whatsoever (or presumably no reason at all). FOIA appears to grant the right of access to generally any person, citizen and non-citizen alike, while Regulation 1049/2001 limits this right to citizens. Regulation 1049/2001 grants the right of access to all EU citizens, whether a natural or legal person, residing or having its registered office in a Member State, although an institution has discretion to grant access to others as well.54 FOIA, however, stipulates that agencies must make documents available, upon request, to any person.55 The APA defines person as an individual, partnership, corporation, association, or public or private organization other than an agency without mention of citizenship
Wald, at 666. Mark Tapscott and Nicole Taylor, Few Journalists Use the Federal FOIA, Heritage Foundation Report (2001). 53 See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281 (1979); Family Farms v. Glickman, 200 F.3d 1180 (8th Cir. 2000). 54 Regulation 1049/2001, art. 2(1). 55 5 U.S.C. 552(a)(3)(A) (2005).
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status.56 Federal courts have tentatively agreed with the interpretation that for FOIA purposes, non-citizens have the right to request documents.57 FOIA itself seems to tacitly acknowledge the salability of non-citizen requests because it contains a clause by which national security agencies are forbidden to make available records to foreign government entities.58 Both laws define document/record very broadly to include nearly every kind of document or record that could pass through the agency/institution. Regulation 1049/2001 defines document as any content whatever its medium concerning a matter relating to the policies, activities and decisions falling within the institutions sphere of responsibility.59 The Regulation covers not only documents drawn up by the institutions, but all documents held, drawn up, or received by the institutions; the Code of Conduct excluded documents not actually drawn up by the institutions.60 Given the nature of the European Union as a governmental entity that depends in large part on the cooperation and expertise of its Member States, and the resulting vast number of documents that originate in Member State governments, this is a marked improvement from the Code of Conduct.61 FOIA defines record and any term within FOIA used in reference to information as any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.62 Nonetheless, the Supreme Court has held that FOIA does not obligate an agency to obtain and disclose records that are no longer in the agencys possession.63
5 U.S.C. 551(2). Neal-Cooper Grain Co. v. Kissinger, 385 F. Supp. 769, 776 (D.D.C.1974) (holding Mexican government is a person within the APAs definition). See also Stone v. Export-Import Bank of United States, 552 F.2d 132, 136 (5th Cir. 1977). 58 5 U.S.C. 552(a)(3)(E). 59 Regulation 1049/2001, art. 3(a). 60 Regulation 1049/2001, art. 2(3). 61 The shift also eliminated what had been a tricky jurisprudential area for European courts, which had tried to define the line between European documents and national documents according to a judiciallyinterpreted authorship rule. See Case T-188/97, Rothmans v. Commission, 1999 E.C.R. II-2463 [1999]; Case T-123/99, JT Corporation v. Commission, 2000 E.C.R. II-3269 [2000]; Case T-47/01, Co-Frutta v. Commission, 2003 E.C.R. II-16 Oct. [2003]; Case C-41/00 P, Interporc II v. Commission, 2002 Opinion of 12 March [2002]. 62 5 U.S.C. 552(f)(2). 63 Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980).
57 56

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Both laws provide that partial access to documents is possible when only part of the document is caught under one or more of the exceptions. FOIA mandates that any reasonably segregable portion of a record be provided to the applicant after deletion of the exempt portions.64 Likewise, Regulation 1049/2001 states that if only parts of the requested document are covered by an exception, the remaining parts shall be released.65 Regulation 1049/2001 refers only to the three main EU institutions: the Commission, the Council and the Parliament. Excluded from the Regulations reach are the European Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions, and the European Central Bank. Although some of these other units, notably the ECB, have adopted voluntary rules on public access and the Ombudsman has argued that they have a legal obligation to adopt access rules, the fundamental EU legislation on public access to documents remains silent on the responsibility of these other governmental actors. Moreover, as Harlow notes, the IGCs themselves are neither widely consultative nor especially transparent, deficiencies which are beginning to be seen as threatening its legitimacy.66 Further troubling is the lack of any clarity as to what constitutes the institutions themselves. Are the comitology committees part of the Commission? Of the Council? Does the Regulation reach COREPER? Does the Regulation reach the EU Presidencies headed every six months by a Member State? Agencies that report to the Commission and the Council? Neither the Regulation itself, nor its predecessor Code of Conduct, gives any indication. The Court of First Instance, under the 1993 Code, has ruled that committees established to advise the Commission on the exercise of its powers the comitology committees have to be regarded as part of the Commission for the purpose of public access.67 FOIA, meanwhile, extends to all administrative agencies, defined specifically (and more broadly than the general definition of agency in the rest of the APA) as any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government

64 65

5 U.S.C. 552(b). Regulation 1049/2001, art. 4(6). 66 Harlow, at 28. 67 Case T-188/97, Rothmans International BV v. Commission, 1999 E.C.R. II-2463 [1999].

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(including the Executive Office of the President), or any independent regulatory agency.68 2.3.2. Public Journal and Register Requirement. Both the European and American laws create categories of documents that must be published in a timely and accessibly manner. Furthermore, both laws demand that each agency/institution create an electronic register of documents to more easily accommodate public access. FOIA establishes a hierarchy of documents, the most important of which must be available by electronic means. Regulation 1049/2001 mandates each institution to create a central, electronic register of documents, under which each document must be labeled with a reference number, its subject matter, and the date on which it was received or drawn up.69 The Regulation recommends that the institutions provide (they shall make available as far as possible) documents directly in electronic form or through the register.70 The Regulation particularly recommends that legislative documents, those drawn up in the process of the adoption of EU legislation should be directly accessible.71 FOIA mandates that agencies provide a series of statements in the Federal Register, including a description of its organization, its general course and method, rules of procedure, and substantive rules of general applicability.72 It also requires that each agency provide a electronic register containing at least the agencys final opinions (including concurring and dissenting opinions), statements of policy and interpretation, and administrative staff manuals and instructions.73 2.3.3. Applications for Documents. The process by which applicants request documents is quite basic under both jurisdictions. Filing a request can be done in minutes and without the aid of legal counsel. Regulation 1049/2001 allows applications for access to a document in any written form (including electronic form).74 The applicant need not provide a reason for the documents sought.75 Likewise, under FOIA, an applicant may request documents that are not already
68 69

5 U.S.C. 552(f)(1). Regulation 1049/2001, art. 11. 70 Regulation 1049/2001, art. 12(1). 71 Regulation 1049/2001, art. 12(2). 72 5 U.S.C. 552(a)(1). 73 5 U.S.C. 552(a)(2). 74 Regulation 1049/2001, art. 6(1). 75 Id.

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publicly available by simply filing an request which both (1) reasonably describes the records and (2) is made in accordance with the agencys particular rules on the timing, place, procedures, and potential fees involved.76 Both regulations also prescribe strict time limits in which the agency/institution must respond to the applicant with either a notice of compliance or refusal: 15 days in the European Union and 20 days in the United States.77 Both regulations, however, also contain clauses allowing the agencies to take more time for extraordinary or unusual circumstances. Thus, Regulation 1049/2001 in the case of an application relating to a very long document or to a very large number of documents, allows for an extension of 15 additional days.78 FOIA sets out a lengthy definition of the circumstances constituting unusual circumstance, including: (1) the need to search for records in field facilities, (2) a voluminous amount of records, (3) and the need for consultation with another agency.79 Under no circumstances, however, may that period be extended for more than 10 working days.80 If the agency fails to comply with the applicable time limit provisions, the applicant shall be deemed to have exhausted his administrative remedies.81 Thus, under both FOIA and the European regulation, the agency/institution has a maximum of 30 days to respond to the application by consenting to or denying the request. In addition to this window of flexibility, however, the European Regulation also allows for the institution to confer informally with the applicant in the case of either a very long or a very large number of documents, with a view to finding a fair solution.82 This provision can either be read, at its most benign, a cooperative and informal mechanism for limiting the waste of precious EU resources, or at its most sinister, a complicit acknowledgement that institutions can use the pressure (of, for example, denying one part of a very large document request) against its most tenacious watchdogs. Given the multiple avenues of review available to the applicant (including further appeals to the institution, consultation with the Ombudsman, and recourse to the judicial system), it seems unlikely that

76 77

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

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institutions will be able to pressure the most exhaustive applicants into ceding their public access rights. If the agency/institution determines that the applicant should receive the documents, both laws provide for the levying of reasonable fees. Regulation 1049/2001 allows the institution to charge the applicant for the cost of producing and sending copies, so long as the charge doesnt exceed the real cost of producing and sending those copies; notably, the Regulation states that on-the-spot consultation, direct electronic access, and copies of less that 20 A4 pages shall be free of charge.83 Likewise, FOIA provides a hierarchy of reasonable standard charges for (1) document duplication, (2) document search, and (3) document review. When records are requested for commercial use, all three costs may be charged to the applicant; when records are requested by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media, only costs for document duplication may be charged; and when the applicant falls into neither category, costs may be charged for document duplication and search, but not review.84 Although the schedule of fees may seem a trite issue, the outrageous levying of charges on the part of government agencies in the first pre-amendment days of FOIA was a major impediment to document access. The power to set high fees for access to documents is the power to deny those documents altogether, and the resulting document access laws in both the United States and the European Union reflect this reality. 2.3.4. Appeals from Denials. If the agency/institution decides that the requested document(s) fall into one of the statutorily defined categories of exceptions and thus denies access to the document(s), the applicant nonetheless has several options available before her remedies are exhausted. Regulation 1049/2001 allows the applicant to make a confirmatory application within 15 days of a denial or partial denial to ask the institution to reconsider its position.85 Again, the institution has 15 days in which to grant access to the documents and notify the applicant or deny the documents and provide reasons for the denial to the applicant.86
83 84

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

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The applicant may then make a complaint to the Ombudsman, per Article 195 EC, or institute court proceedings against the institution, per Article 230 EC. Under FOIA, the agency must provide reasons for the denial in its timely response, along with notification of the right to appeal to the head of the agency.87 The process for appeals to the agency head is much the same as the initial request procedure: the agency head has 20 working days to respond to the appeal; again, if the request is denied, the agency head must notify the person of the provisions for judicial review.88 The Ombudsman plays an important role in the European context for which there is no analog in the American document-access process. More fundamental to the development to a real freedom-of-information regime in the European Union has been the fact that Jacob Sderman, the presiding Ombudsman during the adoption and implementation of both Article 255 EC and Regulation 1049/2001 was Swedish, and among the strongest proponents of open government. Indeed, Sderman engaged thenCommission President Romano Prodi in a tense, high-profile argument during the consideration of the public access regulation, dismissively criticizing the proposed regulations gaps. Later in December 2001, Sderman filed a report to the European Parliament concerning a complaint by Statewatch; the report took the Council to task for not releasing a complete list of all of its documents in its register (with the logical conclusion that citizens will not be able to request documents if they do not know those documents even exist!). 2.3.5. Judicial Review. Both the U.S. federal district court system and the European courts can receive complaints related to the denial of access to government records. In Europe, Article 230 of the Treaty Establishing the European Community governs standing before the European Court of Justice and the Court of First Instance. Any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former [emphasis added].89 Although a long and complicated body of case law exists defining direct and individual concern,
87 88

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

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certainly any denial of an individuals application for access to documents would fall in the first category of decisions addressed to that person, and thus provide standing. Regulation 1049/2001, however, scarcely mentions judicial review of institution denials of records. FOIA expressly provides the terms of judicial review and stresses the role of the judiciary as a check against governmental secrecy by enjoining the agency from withholding records and order agencies to produce improperly withheld documents. From the outset, FOIA requires de novo review by the court, and thus the court need not (indeed, shall not) give deference to the agencys decision.90 FOIA gives the court the power to examine all the relevant records at issue in camera to review whether they were properly withheld from public view.91 Within the context of litigation, the courts have created an additional requirement for administrative agencies the Vaughn index to streamline potentially vast numbers of complex documents.92 Agencies must itemize and describe the records that it has denied and provide the reasons it has chosen to deny those records. In selecting a forum, the applicant can choose among several jurisdictions: (1) the district in which the complainant resides, (2) the district in which the complainant has his principal place of business, (3) the district where the agency records are situated, or (4) the District of Columbia.93 FOIA also gives the court powers to assess against the government reasonable attorney fees and other litigation costs, a marked departure from the each-side-pays standard in the United States.94 Moreover, if the court determines that the circumstances of the denial raise questions as to whether agency personnel acted arbitrarily or capriciously in denying the records, a Special Counsel shall be appointed to determine whether disciplinary action is required; the agency is compelled to accept the Special Counsels findings and implement the Special Counsels recommendations.95 2.4. Comparing the Exceptions None of the foregoing procedural tools simplified applications, ample opportunity for appeals, strident judicial review, electronic registers of the most vital
5 U.S.C. 552(a)(4)(B). Id. 92 The Vaughn index takes its name from the D.C. Circuit Court of Appeals decision in which it was first required, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974). 93 5 U.S.C. 552(a)(4)(B). 94 5 U.S.C. 552(a)(4)(E). 95 5 U.S.C. 552(a)(4)(F).
91 90

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documents are meaningful if there exist wide discretion to exempt documents from the general right to access on the basis of specific, statutory exemptions. Public access to information is one of several government objectives; when openness and transparency conflicts with legitimate state objectives, including national security, personal privacy, and trade secret protection, legislators must sometimes draw lines to prioritize those objectives over freedom of information. The breadth of the exceptions to the freedom-ofinformation norm, as well as the agency/institutional discretion to invoke those exceptions, can and does vary significantly from government to government. Moreover, it is in the hazy space of exceptions that FOIA and Regulation 1049/2001 depart most sharply. Although both the U.S. federal appellate courts and the European courts have narrowly interpreted the exceptions in FOIA and Regulation 1049/2001, FOIAs exceptions start out much more narrowly than those in Regulation 1049/2001.96 The result is that a significantly wider portion of documents can be shielded from public view in the European Union. No one less than Sderman, the EU Ombudsman himself, concluded in an article in The Wall Street Journal Europe that the list of exceptions as drafted was without precedent in the modern world, and that there probably wont be a document in the EUs possession that couldn't legally be withheld from public scrutiny.97 Furthermore, the new Regulations list of exceptions, if anything, is broader than the exceptions under the Code of Conduct that governed access to documents in the 1990s. One of the tradeoffs for a stronger, treaty-based right to public access may be an increased number of documents to which that right cannot be applied. One ray of hope for historians, at least, is that the EU exceptions apply only for a maximum period of 30 years (although the period may apply longer in the case of privacy or commercial interests, and in the case of sensitive documents).98 Discretion to disclose is also a key difference. In many cases, Regulation 1049/2001 requires the institution to deny disclosure if the document falls under a certain exemption in Article 4. Under FOIA, agencies are not required to refuse access to a

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

96

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document if it falls into one of the nine exceptions; agencies always remain free to grant access to the record. 2.4.1. Public Interest Exception. Perhaps the greatest difference between FOIA and Regulation 1049/2001 is that the American statute contains a national security exception while the European Regulation contains a much broader public interest exception. The Regulation mandates that the institutions refuse access to documents where disclosure would undermine the protection of the public interest in four areas: (1) public security, (2) defence and military matters, (3) international relations, and (4) the financial, monetary or economic policy of the Community or a Member State.99 Prior case law under the 1993 Code of Conduct has settled that this list of public interest objectives is exhaustive (the Council had previously argued that it was not).100 Nonetheless, the Regulation expands that list to include not only security, defence, and international relations, but replaced the protection of monetary stability with significantly wider area of financial, monetary or economic policy of either the EU or its constituent nations. Furthermore, its completely unclear what constitutes the public interest is the public interest whatever the Council or the Commission determines it to be? The European Court of Justice? Each Member State? FOIA allows the President, by Executive order, to keep secret documents when it is in the interest of national defense of foreign policy and the documents are properly classified pursuant to that Executive order.101 This exception is doubtlessly broad, and perhaps necessarily so given the grave responsibility of a state to keep its citizens safe, but is clearly much narrowly tailored in both substantive scope and procedural criteria than the public interest exception of Regulation 1049/2001. Furthermore, European courts have deferred to the institutions judgment in the realm of this exception, limiting the power of judicial review over decisions on public access. In Hautala v. Council, under the old 1993 rules, the Court of First Instance ruled that in case of documents related to international relations, the courts role must be limited to verifying whether the procedural rules have been complied with, the contested decision is properly reasoned, and the facts have been accurately stated, and whether
99

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

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there has been a manifest error of assessment of the facts or a misuse of power.102 The Courts justification is that Title V of the Treaty on European Union confers political responsibilities on the Council in such a way that limits the role the courts have in making decisions about international relations. The resulting deferential review is certainly not de novo; it relates to the kind of arbitrary and capricious review employed by U.S. courts in deferring to most agency interpretations, not the substantive review FOIA deploys for protecting the right to access to documents. 2.4.2. Privacy Exception. As important as security and military policy are to the public interest, the obligation of the government to the individuals privacy and integrity is similarly vital to private interest, and both FOIA and Regulation 1049/2001 reflect this with strong guarantees of privacy for personal data. Regulation 1049/2001 instructs institutions to refuse access where disclosure would undermine privacy and integrity of the individual, especially in accordance with other Community legislation regarding the protection of personal data.103 This is functionally similar to the 1993 Code of Conducts exception for the protection of the individual and of privacy. To understand the extent of the exception, however, one must refer to Regulation 45/2001 on the protection of individuals and personal data, which defines personal data as:104 Any information relating to an identified or identifiable natural person...; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity [emphasis added]. This definition is the same as used in a previous Directive105 on personal data from 1995.106 Notably, the Regulation on personal data also generally prohibits (subject to five

102

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

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exceptions, including personal express consent) the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and of data concerning health or sex life.107 These principles give substance to the privacy exception in Regulation 1049/2001, which now conceivably warrants the denial of any documents sought where the release of those documents would undermine the protection of the individuals physical, physiological, mental, economic, cultural or social identity. FOIA similarly provides an exception for personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.108 Although the statute doesnt refer to other legislation as with Regulation 1049/2001, the Privacy Act sets out further protections for individual privacy, mostly complementary with FOIA (but not always).109 2.4.3. Police/Investigation Exception. Regulation 1049/2001 contains an exception where disclosure would undermine the protection of the purpose of inspections, investigation and audits.110 The Code of Conduct included an exception for inspections, investigations, etc., but included this alongside public security, international relations, and monetary stability in the general protection of the public interest exception. The Court of First Instance heard several cases on the meaning of inspections and investigations under the 1993 Code. For example, it ruled that a draft of a reasoned opinion drawn up during an infringement procedure fell within the scope of the analogous exception for inspections, investigations, etc. under the 1993 Code of Conduct,111 that documents relating to a Commission investigation about animal health in the Netherlands were properly excluded under the inspections, investigations, etc. category,112 and that the Commissions

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

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reasoned opinions sent to Italy during an infringement proceeding were also properly denied.113 FOIA exempts documents complied for law enforcement purposes, but only under six tailored conditions: when access to those documents (1) could reasonably be expected to interfere with enforcement proceedings, (2) would deprive a person of a right to a fair trial or an impartial adjudication, (3) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (4) could reasonably be expected to disclose the identity of a confidential source, (5) would disclose techniques and procedures for law enforcement investigations or prosecutions, or (6) could reasonably be expected to endanger the life or physical safety of any individual.114 2.4.4. Internal Deliberations Exception. Regulation 1049/2001 provides for great protection of documents where the final decision has not been taken or where access might otherwise impair institutional deliberations. Access to documents (1) drawn up for internal use or (2) received by an institution where a decision has not been taken, shall be refused if disclosure of the document would seriously undermine the institutions decision-making process, unless there is an overriding public interest in disclosure (emphasis added).115 Furthermore, access may be denied to documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution shall be refused even after the decision has been taken, if disclosure would seriously undermine the decisionmaking process, subject once again to an overriding public interest balancing test.116 The gaping width of this exception is breathtaking. By contrast, Swedens freedom of information law states that a document is deemed to have been received by a public authority (and thus obtainable by the public) when it has arrived at the authority or is in the hands of a competent official.117 Furthermore, a document is deemed to have been drawn up by a public authority when it has been dispatched, or if not dispatched, when the matter as been finally settled by the authority, when the document has been

113 114

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

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finally checked and approved by the authority, or has otherwise received final form.118 Thus, there are many more opportunities in the decision-making process and when documents become obtainable, such as when a document is sent from one agency to another. Conversely, all documents, even final documents, are protected under Regulation 1049/2001 until the institution has made a final decision, and those documents, if the institution deems them to undermine the decision-making process, might still be kept secret even after the decision has been taken! A related exception in the Regulation relates to documents that would undermine the protection of court proceedings and legal advice.119 The Court of First Instance has ruled that this exception covers only those documents that are drawn up for a specific case.120 FOIA, in contrast, does not even list internal deliberation within its exceptions. It does, however, provide for an exception where documents are related solely to the internal personnel rules and practices of an agency, and for inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.121 Moreover, the Supreme Court significantly narrowed the scope of the internal personnel rules exception in 1976 when it allowed researchers at the New York University School of Law to obtain case summaries of U.S. Air Force disciplinary proceedings (with references to actual identities redacted).122 2.4.5. Commercial Interests Exception. Regulation 1049/2001 instructs the institutions to refuse access where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property. Of the nine exceptions in FOIA, three of them involve the protection of corporate data. The most central exception excludes documents containing trade secrets and commercial or financial information obtained from a person and privileged or

118 119

FREEDOM OF THE PRESS ACT, art. 7. Regulation 1049/2001, art. 4(2). 120 Case T-83/96, Van der Wal v. Commission, 1998 E.C.R. II-545 [1998]. 121 5 U.S.C. 552(b)(2), (5). 122 Department of the Air Force v. Rose, 425 U.S. 353 (1976).

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confidential.123 The D.C. Circuit has interpreted this exception to include only those documents that would causes substantial harm to the competitive position of the corporation trying to protect information about its business.124 The D.C. Circuit further defined trade secrets in the FOIA context in a later case as a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.125 It is the narrow interpretation of this and the privacy exception that has made FOIA such a boon for corporations and lawyers: FOIA was promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers.126 The narrow interpretation has also led to the phenomenon of reverse-FOIA litigation. Thus, in Chrysler Corp. v. Brown, the Supreme Court recognized a right to bring suit in federal court where an agency discloses information that is expressly prohibited by a statute (FOIA does not count, however, because agencies always maintain discretion to release documents that nonetheless fall into one or more exceptions). In Chrysler, the plaintiff relied on the Trade Secrets Act to enjoin the release of information about its business to third-party applicants; the Court upheld the plaintiffs right.127 The European Regulation attempts to head off the reverse-FOIA problem by requiring notice of third-parties; when a third-party document is requested, the institution must consult that party with a view to assessing whether an exception is applicable, unless it is already clear that the document should or should not be released.128 This solves the potential notice problem in any reverse-FOIA litigation in the United States (how will a party know to proceed against the agency is she does not know information is being requested?). The third-party notice requirement also goes far in reducing tension by creating a formal consultation with the third-party, and giving the third-partys view at

123 124

5 U.S.C. 552(b)(4). National Parks & Conservation Assn. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). 125 Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). 126 Scalia, at 16. 127 441 U.S. 281 (1979). 128 Regulation 1049/2001, art. 4(4).

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least some weight in the institutions final decision to grant or deny access to the document. In its two final exceptions, FOIA contains very specific exemptions for corporate data. It excludes documents contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions, the purpose of which is to protect banks and other financial institutions. 129 Finally, FOIA excludes documents containing geological and geophysical information and data, including maps, concerning wells.130 2.4.6. Sensitive Documents. Outside of the exception for public security and the public interest, both laws lay out special rules for the most sensitive documents, often those which have to do with the most secret aspects of national security and foreign policy. Regulation 1049/2001s Article 9 lays down separate rules for those documents classified as trs secret/top secret, secret or confidentiel. Applications for such documents must be handled only by those persons who have a right to acquaint themselves with those documents.131 Furthermore, such documents shall be recorded in the register or released only with the consent of the originator, thus giving the originator a veto power over all sensitive documents.132 Article 9 also gives each institution the power to determine its own rules concerning sensitive documents. Article 9 is essentially a codification of the 2000 Solana decision, which first limited access to sensitive documents. FOIA also excludes from the freedom-of-information regime those records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, when the existence of such records is classified information.133 The international terrorism wording, not surprisingly, was added only in 2002; this special exclusion of documents has had a chilling effect on access to documents that may shed light on how the government has proceeded in fighting the war against terrorism, both at home and abroad. In a recent case,
129 130

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

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2.4.7. Member State Veto. The international nature of the European Union, and the structural differences between U.S. administrative agencies and supranational governance mean that there will invariably be differences between the resulting freedom-of-information regimes. Nowhere is this difference more manifest than the veto Member States have within the European Union to deny access to documents they have provided to EU institutions. Contrary to the 1993 Code of Conduct, the new Regulation extends to documents held, and not just drawn up, by the institutions.134 Declaration No. 35, which was attached to the Amsterdam Treaty at the time of its conclusion on French insistence, specifically stated that the resulting Community legislation on public access would allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from the State without its prior agreement. Thus, Regulation 1049/2001 allows Member States to request an institution not disclose a document originating from the Member State without its prior agreement, largely mirroring the language in Declaration No. 35. But what does a request mean? Is a Member States request absolutely controlling? The Court of First Instance has held interpreted this as more or less an absolute veto. In IFAW v. Commission, the Court ruled that Article 4(5) of the Regulation lays down a lex specialis to govern the Member States, expressly holding that a request constitutes an instruction to the institution not to disclose to document in question.135 Furthermore, the Member State is under no obligation to provide reasons for vetoing a document request.136 In a case last year, the Court ruled that documents drawn up on behalf of Member States are also protected by the Member State veto.137 In the same case, the Court refused to allow partial access when a Member State has vetoed the release of a document.138 Commentators have predictably blasted the veto as a legal mechanism through which Member States can disregard with impunity the spirit of open government and transparency, resulting in the hollowing out of the public right to document access. They predict that Member States with strong traditions of freedom of information, such as the
134 135

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

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Netherlands and the Scandinavian countries, will allow more access, while less transparent countries like Germany, France, and Italy will be less forthcoming. Article 4(5), de Leeuw writes, clearly shows that the citizens right of access in not seen as fundamental as the principle that all documents are accessible is not followed.139 But could it have been any other way? As Bjurulf and Elgstrom note, those favoring a stronger right of public access were in the minority at both the IGC resulting in Article 255 EC and the negotiations over Regulation 1049/2001 during first the French, and then the Swedish EU Presidencies. In the context of EU enlargement, Frank Schiffelfennig has suggested that despite the fact that enlargement was a sure loser for the existing EU Member States, their previous rhetoric about the role of Eastern Europe trapped them effectively shamed them into enlargement, notwithstanding the political and economic drawbacks of extending membership to 10 new countries with far lower economic activity and nascent legal and democratic institutions.140 Perhaps, in a similar way, the majority was shamed into accepted the Article 255 right to public access; after all, it is politically untenable to oppose freedom of information and transparency. Thus, the majoritys power lied not in its power to oppose the right, but in significantly hollowing and weakening the content of the right to public access. In any case, the resulting Regulation and its subsequent interpretation leaves Member States undoubtedly in charge of which of its documents can be released to public inquiry. 2.4.8. Specifically Exempted by Statute. FOIA contains one more exception that which allows for the denial of agency records when they are specifically exempted from disclosure by statute.141 Congress amended this exception in 1976 to require that such statutes must (1) require the matters be withheld from the public in such a manner as to leave no discretion on the issue or (2) establish particular criteria for withholding the records, or refer to particular types of matters that may be withheld. Among the most important of these statutes include the Privacy Act142, the Immigration and Nationality Act143, statutes regarding Federal Trade
139

Magdalena Elisabeth de Leeuw, The Regulation on public access to European Parliament, Council, and Commission documents in the European Union: are citizens better off?, 2003 E.L.REV. 324, 337-38. 140 Frank Schimmelfennig. The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union, 55 INTL ORG. 44-80. 141 5 U.S.C. 552(b)(3). 142 5 U.S.C. 552a.

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Commission investigatory records144, statutes regarding the Consumer Protection Safety Commissions records145, the Trade Secrets Act146, statutes regarding Internal Revenue Service records and tax returns147, the National Security Act of 1947148, and Rule 6(e) of the USCS Rules of Criminal Procedure outlining secrecy of materials in grand jury investigations. 3. Recommendations for Reform of the Public Document Access Right in the European Union It is possible to generalize the following: although both Regulation 1049/2001 and the U.S. FOIA create similarly liberal freedom-of-information regimes, the exceptions are much wider in the European context. But is this a problem? The Council received 2,491 applications for 10,330 documents from 3 December 2001 to 31 December 2002, and it refused access to 1,127 of those documents or part of those documents, a release rate of 89.1 percent.149 However, it released only 77.8 percent of those documents in full. Interestingly, lawyers and industry made up only 25 percent of the applications; students and researchers comprised 23.5 percent of the applicants. Among the reasons given for initially refusing access, public security and international relations (in the public interest) were predictably high, but the single most prevalent reason, for 27.9 percent of all initial denials was for the protection of the Councils internal decision-making process. Only 0.5 percent were denied on the basis that the documents were not Council documents.

143 144

8 U.S.C. 1202. 15 U.S.C. 57b-2. 145 15 U.S.C. 2055. 146 18 U.S.C. 1905. 147 26 U.S.C. 6103, 7213. 148 50 U.S.C. 403, 403g. 149 Annual report of the Council on the implementation of Regulation 1049/2001, 14 May 2003.

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Table A: Professional Background of Applicants for Council Documents in 2001 Background Percentage of Initial Applications Students and researchers 23.5 % Trade and industry 14.5 % Pressure groups 13 % Lawyers 10.5 % Non-Community institutions and non4.5% member countries representations Libraries and documentation centers 2.5 % Members of the European Parliament 2.5 % Journalists 2% Miscellaneous 5% Unspecified 22 % Table B: Councils Reasons for Refusing Access Initial Reason Given Public interest public security Public interest military matters Public interest international relations Public interest financial, monetary, or economic policy Privacy and individual integrity Court proceedings and legal advice Councils decision-making process A combination of reasons Not a Council document Other reasons Percentage of Refusals 22.9 % 0.1 % 24 % 0.7 % 0.3 % 12.2 % 27.9 % 10.3 % 0.5 % 1.1 %

The Commission received 991 requests in 2002 (a notable increase over the past three years, in which it received 408, 481, and 450 requests, respectively) for 2,150 documents.150 It granted access to only 66.5 percent of those documents. Interestingly, while the Council almost never uses the investigations exception, the Commission used this reason in 35.9 percent of its 2002 denials. Conversely, the Commission used the internal deliberations exception much less and the public security, military matters and international relations exception in less than 1 percent of the denials. This suggests that many of the documents being denied can be denied for several reasons, or are being denied for ulterior, illegitimate reasons.

150

Report from the Commission on the application in 2002 of Regulation 1049/2001, 29 April 2003.

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Table C: Commissions Reasons for Refusing Access in 2002 Reason Given Percentage of Denials Public interest public security 0% Public interest military matters 0.46 % Public interest international relations 1.8 % Public interest financial, monetary, or 0.46 % economic policy Court proceedings and legal advice 3.7 % Inspections, investigations, and audits 35.9 % Commercial interests 3.7 % Privacy and individual integrity 5.2 % Commissions decision-making process 8.6 % Confidentiality requested by Member State 2.1 % Various/unspecified exception 38.0 % A report prepared by the European Citizen Action Service in October 2003 disparaged the implementation of the public right to access in Regulation 1049/2001: at the very most, the Institutions fulfilled the minimal requirements for correctly and consistently implementing Regulation 1049.151 ECAS found that the institutions used the exceptions in Article 4 of the Regulation as a means to keep secret their documents. ECAS also found that in many of the exceptions that require a balancing overriding public interest test, the institutions were not applying such a test, or were doing so inconsistently across the Community as a whole. What reforms might the European Union take to strengthen access to documents and create a greater culture of openness at the supranational level? Of course, IGC-level restructuring of the European Union to eliminate the confusing labyrinth of committees and processes would go a long way in making the EU more transparent. Several commentators on both sides of the Atlantic have suggested adopting something akin to notice-and-comment rulemaking in the European policy-making process to involve citizens more directly (although two decades of concerns about agency ossification, agency capture, and greater policymaking costs might dissuade anyone of the merits of accepting the wisdom of this). A wholly separate debate involves the level of transparency at which Council votes and intergovernmental conference negotiations are held; again, there are good reasons for allowing more public participation, but
151

ECAS Preliminary Report, Improving Citizens Access to Documents, 17 October 2003.

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negotiations, by their very nature, require a certain level of discretion. I would suggest five reforms, some of which look to the American FOIA as an example, some of which look to the failures of FOIA as a warning, and some of which take into account the idiosyncratic, sui generic nature and structure of the European Union: (1) strengthen the procedural review available to the Court of First Instance and the European Court of Justice, (2) clarify (or widen if necessary) horizontal and vertical access, (3) narrow the internal deliberation exception, (4) limit the public interest exception and (5) eliminate the Member State veto. 3.1. Stronger ECJ Review The European courts currently have much of the power American federal courts have in hearing challenges to institutions denials of document access. They can review the documents in camera, they can review the documents de novo to determine whether the correct exception was applied, and they have power to determine how fees are to be paid. The first paragraph of Article 230 EC gives the Court of Justice (and the Court of First Instance) jurisdiction to review the legality of acts adopted by the other institutions; the second paragraph gives the Court more specific jurisdiction on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or a rule of law relating to its application, or misuse of powers.152 Consequently, the Court lacks the actual power to release documents that had been denied to the applicants; they have the power only to declare that the institution acted illegally in withholding the document under the contested exception, conceivably allowing the institution to shield the document under another exception. One of the next intergovernmental conference priorities (perhaps in a revision of the Constitutional Treaty) should be the grant of this affirmative remedial power to the Court. A key feature of American administrative law has been the empowerment of federal courts to supervise and police the boundaries of agency power; it is in this area where the Majone regulatory state analysis proves most useful in proscribing policy changes for the European Union. Consequently, one manner in which Regulation 1049/2001 might be amended is to add an article to the Regulation on judicial review, setting out a more precise description of the courts role, much like subsection (a)(4) of
152

EC TREATY, art. 230.

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FOIA. This is important as the Court of First Instance has interpreted away its power of de novo review in cases involving documents that implicate international relations (and conceivably any documents that implicate the common foreign and security policy, formerly the second-pillar areas). Any such reform to the Regulation should give to the courts the express role of de novo review in every instance with in camera access to all contested documents. Article 4(4)s requirement of notice and consultation with third-parties prior to the release of any third-party documents is a step in avoiding the reverse-FOIA mess in the United States. However, Regulation 1049/2001 provides no clarification as to the state of the possibility of suing the institutions for releasing documents. In the helter-skelter mess that has resulted in reverse-FOIA litigation in the United States, this seems like an area where the European Union could leapfrog the United States (it arguably already has surpassed the U.S. status quo by providing for notice in Article 4(4)). In the lack of any clarification, it would seem that Article 288 EC on Community liability controls. Article 288 EC provides that the Community institutions should (1) in accordance with the general principles common to the law of the Member States, (2) make good any damage (3) caused by its institutions or by its servants in the performance of their duties. Article 235 EC confers jurisdiction upon the Court to award damages under Article 288. The Court has interpreted Article 288s reference to general principles common to the law of the Member States as requiring (1) actual damage to the applicant in the form of personal or property damage, (2) illegal conduct by a Community institution, and (3) a causal link between the illegal conduct and the damage.153 The Court has also interpreted the illegality requirement to mean that an institution not only violate the law, but do so in a way that is (1) a sufficiently flagrant violation of (2) a superior rule of law promulgated (3) for the protection of the individual.154 Furthermore, the Court has also specified doctrines of contributory

153 154

Case 48/65, Alfons Ltticke GmbH and others v. Commission, 1966 E.C.R. 840. Case 5/71, Aktien-Zuckerfabrik Schppenstedt v. Council of the European Communities, 1971 E.C.R. 842.

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negligence and mitigation of damage in this area of case law, representing another hurdle for the third-party.155 Under Article 288 EC, then, an aggrieved third-party whose documents were released against its protest would have to show that the release of the documents actually caused harm, that the third-party did not contribute to the harm and mitigated any loss resulting from the release of the documents, and that the release was not just illegal, but egregiously so, according to the terms of the Schppenstedt test. Under any future reform or clarification of the Courts role in reviewing institutional decisions on access to documents, the status of third-party standing to bring the equivalent of a reverse-FOIA case should be made clear as well. 3.2. Wider Horizontal and Vertical Access When a public watchdog group complained to the Ombudsman that the Convention on the Future of Europe (which led to the drafting of a European Constitution in an ironic effort to make the European Union more accessible and democratic) should release certain drafts of notes, the Convention President responded that the Convention did not consider itself bound by Regulation 1049/2001.156 Although the Ombudsman agreed with the Convention President and indeed, the scope of Regulation 1049/2001 clearly does not cover intergovernmental conferences, there are many other groups other than the Commission, Council, and the Parliament that make policy in the European Union. Those governmental entities such as the European Central Bank, the Committee of the Regions, and the Economic and Social Committee should be subject to the same standards of document access as their more well-known European counterparts, especially as delegation within the European Union sends increasingly more functions of policymaking to new bodies and agencies. De Leeuw argues that Article 1 of the Treaty on European Union, as well as Article 3 TEU, which requires consistency among the legal principals and limits, gives such quasi-institutions and other European agencies a

155

See Case 145/83, Adams v. Commission of the European Communities, 1985 E.C.R. 837; see also Joined Cases C-104/89 and C-37/90, Mulder and Others v. Council and Commission 1992 E.C.R. 832, 845. 156 Complaint 1795/2002/1JH, Decision of the Ombudsman as it relates to the European Convention, 12 June 2003.

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legal obligation to be bound by Regulation 1049/2001, a view which has found some support from the EU Ombudsman as well. 157 Furthermore, the Regulation should be amended to clarify its vertical scope, to state unequivocally that the Presidency, the General Secretariat, joint CouncilParliamentary committees, CORPERER and the comitology committees, for example, are legally obligated to respect the public access right. 3.3. Limit Internal Deliberation Exception If the chief aim of the public right to document access is to expose the inner workings of government and make the European Unions policymaking apparatus more transparent, the exception for internal documents takes away from the EU citizen everything that Article 255 grants. Therefore, it is vital that the internal deliberation exception be reformed or interpreted in such a way as to limit denial to access only when revealing documents would have an actual adverse effect on the internal deliberations of the institutions: Intergovernmental horse-trading and sensitive negotiations among Member States in the Council come to mind; the results of investigations into animal health that may result in new policymaking do not (if the investigation is sensitive, such documents could be denied under the investigations exception anyway). One way to reform the current Regulation is to amend it by more clearly explaining when an overriding public interest actually overrides internal institutional deliberation, as ECAS suggests in its report. Of course, the Court of First Instance or the European Court of Justice could also fashion a judicially-administered test as well. In the four years since the adoption of Regulation 1049/2001, neither court has done so, but this does not mean that they cannot in the future. In fact, given the difficulty of the Commission fashioning amendments and the Council and Parliament agreeing on them (with a necessarily high level of agreement among the Member States in the Council), a judicial remedy to this problem would likely be the easiest. Over time, it may be that the courts develop some guidelines to instruct the institutions on the overriding public interest question, both limiting the power of the institutions to invoke the internal deliberations exception surreptitiously and harmonizing the overriding public interest standard across the three institutions.
157

De Leeuw, at 331.

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Another reform might be to narrow the definition of when documents become final, as in the Swedish Freedom of the Press Act. Rather than allowing interagency records to be deemed as internal until a final decision is made (perhaps years after the document was produced), they should be available for access so long as they are final in the sense that they are a final piece of work. Therefore, a letter from one Commissioner to another would be a final document, not part of a secret mass of internal inaccessible documents. Limiting the scope of the exception in this way would force more accountable government at every level of the decision-making process, while still permitting the institutional actors breathing space when first considering and drafting policy ideas. Finally, the second paragraph of Article 4(3) should be eliminated; there are no good reasons for documents to be kept secret after a final decision is taken. The other exceptions in Article 4 are sufficient to protect documents that would undermine public security, international policy, privacy, and other important government interests. FOIA operates wholly without an internal deliberations exception at all, and U.S. federal agencies continue to generate regulation. While it is important for the institutions to have some breathing space in the generation of public policy, in the absence of any stringent notice or public participation requirements, the public access right remains vital in allowing EU citizens to peek inside the decision-making apparatus at the European level. The internal deliberations exception, as it is currently broadly interpreted and used, is a direct contradiction to the spirit and application of public access and transparent government-making. 3.4 Limit Public Interest Exception Currently, the wide-ranging public interest exception extends not only to public security, defense and military matters, and international relations areas already covered by the Regulations special restrictions on sensitive documents but to the financial, monetary or economic policy of the Community. So far, neither the Council nor the Commission has used this exception to deny access to documents. However, the exception is laughably broad, significantly wider than its monetary stability counterpart in the previous Code of Conduct. Indeed, FOIA contains no similar language. Currently, economic policy extends to nearly every aspect of Community policymaking from the

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free movement of goods to sex discrimination in the workplace, from the free movement of persons to economic and monetary union, from social policy and the distribution of funds to regions to competition law. A creative institution could use the exception as a pretext to deny just about any document. At a minimum, the Regulation should be reformed to return to the monetary stability language. Conceivably, however, the dissemination of any document that could result in widespread economic harm should be covered under the exception for public security. More broadly, the Regulation mandates that the institutions deny access to documents when the disclosure not when disclosure would undermine the protection of, for example, public security, but the protection of the public interest as regards public security. Theres no definition in the Regulation to clarify what exactly the public interest entails (a problem, as weve seen, with the internal deliberations exception as well). This gives an unacceptably broad discretion on the part of the institutions and a pretext to deny any document on the basis of the public interest. Forcing the applicant to provide the institution with an acceptably important public interest for every document request eviscerates the provision in Article 6(1) allowing EU citizens to request documents without obligation to state a reason for the application. In the future, the courts must adequately define the term public interest or the institutions must amend the Regulation to reduce the institutions discretion in determining the public interest. 3.5. Eliminate Member State Veto The Member State veto, more than even the broad public interest and internal deliberation exceptions, provides the most potentially dangerous impediment to document access. Despite the statistics showing the relative paucity of denials on the basis of Member State refusal, the European Union will not and cannot be truly committed to openness, transparency and access until its Member State constituents also follow the rules they have established for the institutions. Until the Member States are willing to subject themselves to the same access norms as the European Union in the areas they have delegated power to the EU, no one should take seriously their rhetoric about openness. Due to the intergovernmental nature of the Council in particular, this change can only occur when a qualified majority of the Member States agree to eliminate it.

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The question, in some regards, dovetails into a far larger dilemma for the European Union. Imagine if California decided tomorrow that it wanted to exempt all the documents it sends to the federal government from FOIA and that it would reserve the right to deny access to any of those documents; the suggestion would be laughable, as the federal-state relationship is fairly well established after 150 years of 14th Amendment jurisprudence. Not so in the European Union, however, where Member States are far more powerful actors than any U.S. state has ever been, and where the relative novelty of supranational governance gives the EU and its relationship with the Member States much flexibility not only in access to documents, but to every area. Nonetheless, for the Member States to acquiesce their veto over documents would be far from the admission of a federal Europe. To the extent that a more transparent and open European Union provides a check on supranational encroachment of national power (as Lindseth and others argue), a more liberal public access right will serve in part to preserve the power of the Member States. Ultimately, however, it is important to remember that the spectrum of traditions regarding open government in Europe ranges from those highly-enthusiastic nations where open government is a cherished constitutional principle (Sweden, the Netherlands, Denmark), to those nations where it is a new, but growing concept (the United Kingdom, Ireland, Germany), and those nations that most cherish secrecy as a government prerogative (France, Italy). Over time, as the European standard becomes more entrenched, it may raise the lowest common denominator for document access, resulting in greater strides in government transparency at the national level among the least transparent countries. It may be useful to remember that in 1957, when the Rome Treaty was signed, only Germany had a modern competition law; today, it would be unthinkable for a major European country to lack its own antitrust enforcement authority.158 In the short run, it may be difficult to conceive a qualified majority of Member States giving up their own veto power; in the long run, however, Member States may become more trustful of the freedom-to-information norm that it will be relatively easy to eliminate the Member State veto.
158

Giandomenico Majone, Regulatory Legitimacy in the United States and the European Union, 1 FEDERAL VISION 252-275 (2001).

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Conclusion This article has attempted to suggest future reforms for strengthening the European Unions right to public access of documents in the context of a comparative study of the EUs Regulation 1049/2001 on public access to European Parliament, Council and Commission documents and the United States Freedom of Information Act. Transparency, however defined, must include the right to access government documents. This right is important for at least two reasons: it enables more informed citizen participation at the policymaking level and it allows watchdogs to review what government is doing, and thus keep European policymakers accountable. In the context of the current debate over the European Unions lack of democratic deficit and proposals to make the EU more democratic and accountable, FOIA in particular and the U.S. regulatory state in general (as a series of agencies which have gained considerable delegated powers since the mid-20th century without any electoral legitimacy) are particularly useful points of comparison. Examining the two pieces of legislation, it is striking to note how similar the basic structure of both freedom-of-information regimes. Both set out time limits for the agency/institution to respond to requests, both simplify the process of applying for document access, both require the agency/institution to establish central registers and include certain documents in those registers, and both allow for ample appeals in the case of denial of access. However, FOIA is particularly narrower than its European counterpart in its list of exceptions to the general public access norm. Notably, Regulation 1049/2001 allows access to be denied under broad exemptions for the public interest, investigations, internal deliberations, and allows Member States veto power over any document originating with that Member State. In its slow but steady move over the 1990s and the current decade to enhance transparency, the European Union could do much more to solidify the public access right I have suggested five reforms that would limit the power of institutions to withhold documents: (1) strengthen and consolidate a stringent level of judicial review, (2) strengthen and consolidate wide horizontal and vertical access, (3) narrow the internal deliberations exception, (4) narrow the public interest exception, and (5) eliminate the Member State veto.

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Forty years passed between the Treaty of Rome and the Treaty of Amsterdam before the European Union provided for a quasi-constitutional right to the public access of documents. Like many changes in the European governance structure, this change has been gradual. Given the relative youth of the European Union, there is hope that rights to document access will only continue to strengthen in the coming years as more citizens and public groups demand access to records.

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