The proposals have been presented by the European Commission as a part of its 'European Transparency Initiative' and follow a review into Regulation 1049/2001, which serves as the EU equivalent of the Freedom of Information Act in the UK.
The Committee raise concerns that the proposals will exclude draft documents from greater transparency and availability to public scrutiny. The European Commission’s proposals would see documents that had not been ‘formally transmitted’ exempt from disclosure and could, for example, be interpreted to exempt from disclosure emails transmitted within an EU Institution or drafts circulated within or even outside an institution. The Committee argue that any such blanket exemption would involve too great a limit on the public’s right to access EU documents. They "do not regard the exclusion of documents on a basis related to the ‘formality of their transmission …. as a suitable way of creating a space for policy formulation. This is not an appropriate way to balance the competing interests in protection and disclosure".
The report also points out that the proposal that Member States should be able to object to the disclosure of documents at the EU level for reasons of their own domestic legislation could significantly reduce the right of access. The Committee call for clarification on which documents would come within the scope of this proposed exemption.
The Committee raise concerns with the UK Government’s attempts to introduce a ‘particularly high level of protection’ for negotiating positions taken up by Member States during the legislative process. The Committee point out that Member States act as legislators when negotiating in European Council and legislators usually operate in public. They assert that the current and proposed regulations are right to allow the possibility that the disclosure of documents relating to negotiating positions may be required if in the overriding public interest.
The Committee also oppose the Government’s attempts to secure a greater level of protection for legal advice than afforded by current legislation.
Commenting Lord Mance, Chairman of the Lords EU Sub-Committee on Law and Institutions, said:
"Providing public access to documents is a key element in securing the accountability of European Institutions to European citizens.
"We support attempts to make the EU more open to public scrutiny and hope the Commission use this opportunity to improve public access to documents, not limit it further. For that reason we think it is important that access to draft documents is maintained. It is not appropriate for the European Commission to establish arbitrary definitions of the point where a document is ‘formally transmitted’ in order to maintain space for policy development.
"We are concerned that the UK Government are seeking greater restrictions on the publication of legal advice in respect of legislation, and of negotiating positions adopted by Member States. Legislation should take place in as open an environment as possible."