The European Commission has recently circulated a “Vademecum on access to Documents” to EU officials on DG Trade with “10 things to remember on Access to Documents.”
The Commission has recalled that “All documents, including e-mails, held by the Commission, even if we get them from third parties, are in principle subject to disclosure."
The document stresses that any refusal to grant access to documents must be based on one of the exceptions in the Regulation regarding public access to European Parliament, Council and Commission documents. This Regulation is in the process of review. However, the document is essentially an explanation on how EU officials should narrowly interpret requests for access to documents held by the Commission.
The document reminds that “Under certain conditions, documents can be partially released” hence “When the released document also covers issues which were not mentioned in the applicant's request, the parts that are not relevant to the request will not be disclosed.” Moreover, the document reads “Recent cases concern requests for information about meetings with "individual companies" on our FTAs which have allowed us to exclude business federations on the same points, or about meetings with "DG Trade officials" which have allowed us to exclude meetings on the same point with the Commissioner or the cabinet.”
Other examples are provided. For instances, negotiating documents exchanged between the Commission and negotiating partners may also be covered by the “protection of international relations” and “documents for internal use relating to a matter where the decision has not yet been taken” exceptions. Furthermore, the “decision making process” exception can also be invoked against requests for the minutes of meetings between the Commissioner and his opposite numbers, “if the content has "news value" at the time of releasing the documents.”
The document also stresses that documents received in the context of anti-dumping, anti-subsidy, safeguard and TBR proceedings might be covered by the following exceptions: “protection of commercial interests of a natural or legal person”, “court proceedings and legal advice” and “protection of public interest as regards international relations.”
The document reminds EU officials that their documents “including meeting reports and e-mails can potentially be disclosed.” It reads “You should keep this in mind when writing such documents” and stressed that “This is particularly the case for meeting reports and e-mails with third parties (e.g. industry), which are favourite "targets" of requests for access to documents, especially by NGOs.”
The document provides the EU officials from the DG trade with “few tips” on how to write a meeting report and emails. Obviously, the EU officials must bear in mind that their documents “may be made public at some point.”
The EU officials, therefore, when writing a meeting report should “separate factual elements” from “assessments and personal/subjective comments or opinions” and “follow-up points” which would allow them to “have to release only the factual part of the report, and avoid partial release.” In fact, the document goes further and says “The best thing to do is to make two separate documents, i.e. one factual report, and a separate one with the assessment of the report (and possibly suggestions for follow-up).” Moreover, it reads “By doing this, we avoid having to "whiten" certain parts of the report, which creates an additional work burden (scrutinise the documents, determine what has to be deleted and justify why it has been deleted …) and which always carries a risk of confirmatory action, or even recourse to the Ombudsman or the Court (who may ultimately find that the invocation of exception grounds was not justified and even order the deleted parts to be disclosed …)” In this way, it is easier for the Commission to hide from the public the important parts of such reports.
Moreover, EU officials should “avoid recording statements which may turn out to be politically embarrassing for those who have made them and avoid adding such comments to the report itself.” Hence, they are adviced not to write what actually happened in those meeting into their reports.
As regards emails, the EU officials should “avoid making personal comments (…) which may be the object of disclosure.” The document gives an example, “when writing an e-mail to an external contact which you happen to know personally or have contacts with outside the professional sphere, refrain from any message that may be of personal nature (e.g. don't refer to the great lunch you have had with an industry representative privately or add a PS asking if he/she would like to meet for a drink).” Hence, they are adviced not to make any reference to contacts with lobbyists.
According to the EUobserver, a European Commission spokesperson has defended such document saying "Actually we think these are good instructions. It makes clear that no category of documents is excluded [from the regulation]." Now, is even clearer how untransparent the Commission is.
