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Nation"s freedom is always in relation to its freedom of press, of expression and of information. This statement of the Finnish enlightment thinker Anders Chydenius (1766) is still valid. In integrating Europe facing its global challenges, open society and transparent political system is a current challenge. This legacy in mind, the Anders Chydenius Foundation has decided to rouse discussion on the Freedom of Information (FOI) in the European Union.

EU has committed to openness

The more information the European Union provides to the public, the more the public will get involved, and the more legitimate the EU will become. Open, transparent and accountable decision-making is the essence of any democratic system. Hence, the new Constitutional Treaty contains an implicit right for information (I-47.2).

Also in its current treaties and regulations, the European Union has committed itself to openness. As far as freedom of information is concerned, the current Union has, however, a lot to improve. According to many experts, the EU has not yet ¿enshrined the public¿s right of access¿ (in accordance with the Amsterdam Treaty) or ¿ensured the widest possible access to documents¿ (in accordance with its own Regulation).

Legislative process is opening

Tentative moves have been made to improve access to documents and transparency of the decision-making process in the EU. Since the first European Ombudsman Mr Jacob Söderman, the activities of the Ombudsman have been intrumental in this development.

This applies also to the recent decision of the Council of the European Union to open more of its debates to the public. The Council announced its decision on 21 December 2005. Nevertheless, the work continues. Ombudsman, P. Nikiforos Diamandouros, points out that the Council does not go far enough in opening. The Council opens only sessions related to the co-decision procedure, thereby covering only a part of the debates in the legislative process.

In his special report, submitted to the European Parliament in October 2005, the Ombudsman went much further in calling on the Council to review its refusal to meet publicly "whenever it is acting in its legislative capacity". Mr. Diamandouros said that "this issue goes to the heart of what many see is wrong with the Union - namely that decisions are taken behind closed doors, in a way that is remote and disconnected from the citizens."

Access to documents remains as a challenge

Many advocates state that the real question for the Commission is to implement Article 11 of the Regulation on access to documents which came into effect in December 2001. This says that "references to documents shall be recorded in the register without delay" (Art 11.1).

The challenge of openness is culminated to the question, which documents the Council and Commission give access to and which they does not. For example, the largest category of refusal of access to documents by both institutions is where disclosure would "seriously undermine the institution"s decision-making process unless there is an overriding public interest in disclosure".

This is the so-called "space to think" for officials and not in a single instance has a "public interest" argument by an applicant been upheld. In effect, the internal discussions leading to the position are not available before the measure is adopted. To argue that the "public interest" of disclosure never overrides their "space to think" has no place in a democratic Europe.

Proposals on further reform

One has been arguing that the EU needs a Freedom of Information Regulation governing all its institutions. According to Statewatch director Mr. Tony Bunyan, this would mean that a person could simply request all the documents concerning a specific measure or initiative and it would be the job of the institution to provide them. This should be subject to a new very limited set of exceptions - excluding the "space to think".

One has also suggested a Directive covering the member states. All member states have enacted a comprehensive national FOI law, but many of them, however, do not have national rules that come close to the standards advocated internationally by experts. According to FOI advocates, less than a half of the twenty-five EU member states have such FOI regimes.

Discussion on the open and transparent European Union continues. The Anders Chydenius Foundation with its national and international partners provides it with one forum. The beginning will the discussion event with a Finnish MEP Alexander Stubb in Kokkola, April 11. Our discussions will culminate at the international seminar on 1st of December 2006, at the eve of the 240th Anniversary of Finland-Sweden"s Freedom of Press Act (2 Dec 1766).

Juha Mustonen
Secretary General
Anders Chydenius Foundation

Statewatch - website on openness in the EU

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