While the UK has seen the introduction of wide ranging freedom of information laws over the last two years, the EU remains veiled from its citizens behind its own rules for public access to documents.  The recent judgment of Franchet and Byk v the Commission highlights the ongoing disparities between domestic and EU law.
 
Freedom of Information in the UK

The UK has opened its public bodies to increased public scrutiny in recent years in line with other countries across the world such as the USA, Canada and New Zealand. 

Freedom of information legislation (FOI) in Scotland and the rest of the UK gives individuals the right to see information held by public authorities listed in those acts.  An individual need only ask the relevant authority for information, without the need to cite the relevant legislation.  Once the request has been made, the authority is under an obligation to respond within twenty working days.  If the request is refused, the authority must clearly state why and explain how to appeal the decision.  Authorities are also obliged to assist anyone making such a request in order that individuals can frame appropriate and achievable requests.
 
FOI requests may be refused on grounds such as prejudice to court proceedings or because the documents concern the development of government policy, although overriding public interest trumps many exceptions in the legislation.

The EU model: public access to documents

The EU's equivalent of FOI is set out in Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.  These regulations give citizens of the EU, as well as those residing in the Union, access to Commission documents.  Individuals must apply to the relevant European institution to be granted access to documents and, as in the UK there is no requirement for them to state the reasons behind their request.

However, the Commission is equipped with a broader range of reasons to refuse access to documents.  For example, the "space to think" ground allows the Commission to refuse access to documents where disclosure would "seriously undermine the institution's decision-making process unless there is an overriding public interest in disclosure".  While this appears similar to the "formulation of government policy" ground available in UK FOI legislation the balance between the exemption and the public interest in the EU is formulated in such a way that, in practice, the public interest argument is extremely hard to establish. This therefore leaves crucial decision-making documents out of reach of the EU's own citizens.

Yves Franchet and Daniel Byk v the Commission (joined cases T-391/03 and T-70/04)

This case was decided upon by the Court of First Instance earlier this month, and provides further evidence of the relative ease with which Commission documents can be kept out of the public domain.  Messers Franchet and Byk were high-ranking officials in the EU's statistical office (Eurostat), which had come under investigation for accounting irregularities. 

When they repeatedly applied to the Commission for access to certain documents relating to the investigations, their requests were refused.  The Commission stated that access to the documents would prejudice the investigations and eventual court proceedings.  It further claimed that some of the applicants' requests lacked precision where they had requested cite of all communications between the anti-fraud office and the Commission.

Having exhausted the Commission appeal process, the case was referred to the Court of First Instance.  The judgment is disappointing for those who had hoped to see a triumph for access to EU documents.   The Court threw out the Commission's argument for the protection of court proceedings but found that to some degree it was justified in using the defence of protection of investigations.  The result was a very limited success for the applicants, being granted access to the annexes of one accounting report and having the Commission forced to re-assess its blanket refusal of access.  The Commission will now have to assess each document requested individually but there is still no guarantee that any will actually be released to the applicants.

However, the judgment generally serves to highlight the continuing gulf that exists between citizen's rights of access to documents under UK FOI legislation and their equivalent rights at EU level.  Many feel the EU has a lot of work to do in addressing this as part of the wider debate on democratic deficit within the Union.

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