Freedom of information and open government: The European community/union dimension

Government Information Quarterly

Volumn 14, Issue 1, 1997, Pages 27-49

  Birkinshaw, Patrick ^a  

^a UNIVERSITY OF HULL   (United Kingdom)

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EID: 0009144280     PISSN: 0740624X     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0740-624X(97)90050-2     Document Type: Article

References (83)

1. a senior judge, was commissioned by the Prime Minister to investigate the affair: see Richard Scott Sir. . and Index: the "Scott Report." House of Commons (HC) 115. Vols. I-V:1995-1996.
2. Such legislation is now frequently referred to as Access to Information legislation.
3. See Birkinshaw Patrick. Freedom of Information: The Law, the Practice and the Ideal. 2nd ed. 1996;Butterworths, London.
4. And see "On Publicity" Works of Jeremy Bentham 2, 310-317.
5. See Feintuck Michael. Government Control of Information: Some British Developments. Government Information Quarterly. 13:1996;345.
6. Cm 2290, HMSO (1993), see Birkinshaw Patrick. I only ask for information. Public Law. 1993;557.
7. HC 84 Open Government. 1995/1996;. Second Report, Select Committee on the Parliamentary Commissioner for Administration.
8. HC 556 Second Special Report. 1995-1996.
9. HC 313 (1995-1996), Public Service Committee.
10. See 1996 Inter-Governmental Conference. 1994-1995;44 et seq. On information provided to the European Parliament see the text below.
11. See 1996 Inter-Governmental Conference. 1994-1995;44 et seq. On information provided to the European Parliament see the text below.
12. House of Lords Debates, col. 1197 (8 May 1967).
13. 1963 European Court Reports (hereafter ECR) 1.
14. 1964 ECR 585.
15. Opinion 2/94 23 March 1996, pp. 1-14 of the European Court of Justice on Accession of the Community to the ECHR.
16. TEU (1992) Declarations 13 and 14.
17. See Birkinshaw P., Ashiagbor D. National Participation in Community Affairs: Democracy, the UK Parliament and the EU. 33 Common Market Law Review. 499:1996.
18. Foreign and Commonwealth Office. A Partnership of Nations. 1996;25 HMSO. Cm 3181.
19. Gallup. November 1993.
20. See Staff Regulations for Officials etc of the EC, Articles 17, 19, and 21. Note the decision of Scott VC concerning publication of a former Soviet spy's memoirs: A-G v Blake The Times. 1996;. cf. Snepp v US 62 L Ed 2d 704 (1980) and the position of a former CIA agent.
21. See Official Journal of the European Community (OJEC). 8 June 1993;. C 156/5 et seq.
22. OJEC L 158/56 (23 June 1990): Directive 90/313/EEC.
23. COM(88) 484 final.
24. Opinion 2/94 of the Court. 28 March 1996.
25. Society for the Protection of Unborn Children v Grogan [1991] 3 CMLR 849.
26. 15 European Human Rights Reports (EHRR) 244.
27. Markt Intern v Germany 12 EHRR 161. NB R v GMC ex p Colman [1990] 1 All ER 489 (CA: UK).
28. 1989 ECR 2859.
29. Ryssdal Judge R. The Developing Role of the European Court of Justice. European Policy Forum. 1995;9 et seq. London.
30. citing Chappell Series A 152-A and Niemitz v Germany Series A no. 251-B (16/12/92).
31. Leander v Sweden 9 EHRR 43 and Gaskin v UK 12 EHRR 36.
32. Recommendation R (81) 19, 25 November 1981.
33. 11th Protocol ECHR (1994). Art. 40.
34. See Article 190 EC Treaty Schwarze J. European Administrative Law. 1992;1400 et seq The duty covers administrative decisions as well as legislative acts.
35. See in particular the decision of the House of Lords in Doody v Secretary of State [1993] 3 All ER 92. Tribunals and inquiries in the United Kingdom covered by the Tribunals and Inquiries Act 1992, section 10. are under a duty to provide reasons for decisions in writing or orally.
36. J.J. Zwartveld et al. (1990) ECR 1-3365.
37. Commission Decision 93/730/EC OJ L 340/41 (31 Dec. 1993) and Council Decision 93/731/EC OJ L, 340/ 43. The Dutch government pressed for a revision of Article 213 of the EC Treaty, which allows the Commission to collect information in the performance of its tasks. Regulations thereunder provide a right of access to information to community documents in discussions before Maastricht. This was not successful Curtin and Meijers 32 CML Review 391 (1995).
38. A Community Close to its Citizens. Bulletin of the EC. 1992;2. part 10.
39. A Community Close to its Citizens. Bulletin of the EC. 1992;7. part 12.
40. See Frankel. The Guardian. June 18 1996;. As already indicated, the UK introduced a Code of Practice without legislative backing in April 1994 OJECC (1993) 156. p. 5. This Communication listed those European and other countries where rights of access to government information generally existed, and not just rights to personal information. These included, within the Community: Denmark. France. Greece, and the Netherlands. Belgium had proposals before its Parliament and subsequently the Republic of Ireland introduced FOI legislation. Sweden subsequently joined the Community and initiated FOI legislation in 1766 as part of the Freedom of the Press Act. In tact, Sweden is currently in conflict with the EC Council because it has adopted a more liberal approach to disclosure of EC and Third Pillar documents in its possession than has the Council.
41. OJEC C 1993 166/164.
42. Council Decision 20 December 1993: OJ L 31 340/43. December 1993: Commission Decision 8 February 1994. OJ L 46/58 18 February 1994.
43. 1 ECU equals $1.29 approx.
44. OJEC C 74/3 14 March 1996.
45. Council Decision 20 December 1993: OJ L 31 340/43. December 1993: Commission Decision 8 February 1994. OJ L 46/58 18 February 1994.
46. Council Decision OJEC L 304/1 (December 10, 1993). Articles 4 and 6.
47. And up to October 31. 1995: OJEC C 79/22 (March 18, 1996).
48. Parliamentary Commissioner for Administration Act 1967. Sched. 3(1).
49. See Frankel. The Guardian. June 18 1996;. As already indicated, the UK introduced a Code of Practice without legislative backing in April 1994 OJECC (1993) 156. p. 5.This Communication listed those European and other countries where rights of access to government information generally existed, and not just rights to personal information. These included, within the Community: Denmark. France. Greece, and the Netherlands. Belgium had proposals before its Parliament and subsequently the Republic of Ireland introduced FOI legislation. Sweden subsequently joined the Community and initiated FOI legislation in 1766 as part of the Freedom of the Press Act. In tact, Sweden is currently in conflict with the EC Council because it has adopted a more liberal approach to disclosure of EC and Third Pillar documents in its possession than has the Council: See Frankel The Guardian June 18 1996. As already indicated, the UK introduced a Code of Practice without legislative backing in April 1994.
50. See, e.g., the European Sysem of Central Banks and chapter II of its governing statute, article 5. on the collection of statistical information. Note also European Communities (Amendment) Act 1993 (UK), section 4.
51. Case A. 3/94.
52. I am grateful to Adrian Hunt, PhD thesis Birmingham University for this information The Regulation of the Telecommunications Industry. May, 1996.
53. European Committee on Telecommunications Regulatory Affairs. OJEC C. January 6, 1993;5.
54. I am grateful to Adrian Hunt, PhD thesis Birmingham University for this information The Regulation of the Telecommunications Industry. May, 1996.
55. Statute of the European Ombudsman: OJ L 113/15. May 4, 1994;. Art 3(2) and (3).
56. COM (93) 258.
57. Carvel v EU Council [1996] All ER (EC) 53. See OJEC C 213/22 on publication of votes in relation to Council Directives.
58. Netherlands v Council Case C 58/94: Judgment of the Court 30 April 1996. The ECJ ruled that the Code was not judicially reviewable because it was not intended to have legal effects. The Decisions were. See the latter article on openness under the Schengen agreement involving certain Member States.
59. See Curtin, Meijers. CML Review 391. 1995.
60. Council Decision: December 6, 1993 (93/662/EC) Article 5(1); the rules of procedure are published at: OJEC L 304/1 (December 10, 1993) but publication is not obligatory.
61. Carvel v EU Council [1996] All ER (EC) 53. See OJEC C 213/22 on publication of votes in relation to Council Directives. p. 62.
62. The Economist. 1995;51. claimed the practice was widespread.
63. This confers a discretion to publish. Arts 5(1) and 7(5) Rules of Procedure. See note 67 above.
64. Council Decision: December 6, 1993 (93/662/EC) Article 5(1); the rules of procedure are published at: OJEC L 304/1 (December 10, 1993) but publication is not obligatory.
65. See arts. 100d and art K4 TEU.
66. Foreign and Commonwealth Office. A Partnership of Nations. 1996;30 HMSO. Cm 3181.
67. Foreign and Commonwealth Office. A Partnership of Nations. 1996;32 HMSO.
68. Foreign and Commonwealth Office. A Partnership of Nations. 1996;36 HMSO. comprising Ministers nominated by governments in the Council of Ministers from the Council of Europe not the EC Council or European Council.
69. Financial Times. January 18. 1996.
70. The Inter-Govenmental Conference. 1994/1995;75. House of Lords HL 105.
71. Article 138c contains the details and restrictions crucially those that are sub judice the ECJ.
72. Article 138d - a right which had existed previously under EP Rules of Procedure.
73. TEU Articles J.7 Title V and K.6 Title VI.
74. Directive 95/46/EC of the Council and Parliament OJEC L 281/31 (23 November 1995).
75. For an analysis see Bainbridge D., Pearce G. Data Protection. New Law Journal. 1995;1505.
76. For an analysis see Bainbridge D., Pearce G. Data Protection. New Law Journal. 1995;1545.
77. For an analysis see Bainbridge D., Pearce G. Data Protection. New Law Journal. 1995;1579.
78. For an analysis see Bainbridge D., Pearce G. Data Protection. New Law Journal. 1995;1656 There are suggestions that the British government might seek to exclude those areas which are not covered by the EC. for instance, police, taxation, and immigration. This might not be as simple as it appears.
79. Europe After Maastricht. 1992/1993;. HC 642-1.
80. See Birkinshaw P., Ashiagbor D. National Participation in Community Affairs: Democracy, the UK Parliament and the EU. Common Market Law Review. 499:1996;. supra where some of the options are discussed.
81. van Gerven W. Toward a Coherent Constitutional System within the European Union. European Public Law. 1996;81-101.
82. COM (93) 258 Fin (CB-CO-93-290-EN-C). A Users' Advisory Council for the major users of Commission information has been established: SEC (94) 114.
83. See Birkinshaw Patrick. Freedom of Information: The Law, the Practice and the Ideal. 2nd ed. 1996;Butterworths, London.