Keynote speech delivered by Graham Smith, Senior Adviser at the European Ombudsman's Cabinet during a meeting discussing work of Information Commissioners and Ombudsmen on public access to information and documents

1. European Ombudsman
Meeting of European FOI Commissioners
and Ombudsmen
Berlin 23rd
February 2017
Graham Smith
Cabinet of the European Ombudsman
Freedom of Information at the
European Union Level

2. European Ombudsman
Outline
• The European Ombudsman
• The EU Access to Documents regime
• Transparency and Access to Documents
• Access to Information or Documents?
• Information Commissioner or Ombudsman?
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3. European Ombudsman
European Ombudsman
 Created in Maastricht Treaty (TEU) 1992
 To reinforce the safeguarding of the rights of
citizens of the European Union
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4. European Ombudsman
Legal Framework
 Ombudsman statute adopted 1994
 To help uncover maladministration in the
activities of EU institutions, bodies, offices
and agencies
 Make recommendations with a view to
putting an end to it
 Complaints and own-initiative
powers
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5. European Ombudsman
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Ms. Emily O’Reilly
 Investigative journalist and
author
 Former Irish Ombudsman &
Information Commissioner
(2003 – 2013)
 Elected 2013 & 2014
 Mandate until 2019

6. European Ombudsman
Access to EU Documents
 Regulation EC1049/2001
 Former Code of Practice on Access to
Documents
 Amsterdam Treaty
 Remedies through court proceedings
 And/or complaint to European Ombudsman
 Charter of Fundamental Rights 2010 –
citizens’ rights
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7. European Ombudsman
Regulation EC 1049/2001
 19 Articles
 Art. 1 – Purpose Clause (+ 17 recitals)
 ... in such a way as to ensure the widest
possible access to documents
 ... ensuring the easiest possible exercise
of this right
 ... to promote good administrative
practice...
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8. European Ombudsman
Recitals
 Treaty... enshrines the concept of openness... in
which decisions are taken as openly as possible
and as closely as possible to the citizen.
 Openness enables citizens to participate more
closely in the decision-making process...
 ...and guarantees that the administration enjoys
greater legitimacy...
 Openness contributes to strengthening the
principles of democracy and respect for
fundamental rights.
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9. European Ombudsman
Legislative Process
 Wider access should be granted to
documents in cases where institutions
are acting in their legislative capacity,
including under delegated powers...
 ... while at the same time preserving the
effectiveness of the institutions’
decision-making process
 Art. 12(2) “directly accessible”
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10. European Ombudsman
Transparency and Access to
Documents
 Regulation 1049 – “The Transparency
Regulation”
 Real-time and retrospective
transparency
 Accountability and citizen participation
 Access to documents as good
administration
 Non-compliance = maladministration
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11. European Ombudsman
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12. European Ombudsman
Inquiry into trilogue transparency
How the deals are done
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13. European Ombudsman
Transparency of TTIP negotiations
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14. European Ombudsman
Access to Documents or Information?
6
 Does it matter?
 Issues of statutory definition
 Art.3(a) “... any content whatever its medium
(written on paper or stored in electronic form or
as a sound, visual or audio-visual recording)
 Scotland & UK: “... information recorded in any
form”
 Partial disclosure is required and very common,
with redactions where parts are excepted

15. European Ombudsman
Similar issues arise...
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16. European Ombudsman
Procedural issues
• Written applications
• “Confirmatory applications”
• Time limits
• Fees
• Duty to advise and assist
• Third party consultation
• Member State consultation
• Reciprocal requirement on MS
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17. European Ombudsman
Other features of the EU regime
• Few exceptions, but very broad
• More absolute exemptions
• Class presumptions from case law
• Courts put onus on applicant to demonstrate
overriding public interest
• Strict necessity test for personal data
• Institutions shall refuse access if an exception
applies
• Ombudsman as alternative to court remedy
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18. European Ombudsman
Information Commissioner or
Ombudsman?
 Ombudsman role – maladministration
 Not limited to subject-matter of complaint
 Can make recommendations for future
action
 Decisions not legally binding
 Respect for decisions vital to success
 Power of (adverse) publicity
 Importance of Parliamentary support
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19. European Ombudsman
 Review Reg.1049/2001 unlikely
 EU directive on access to information unlikely
 Standards and expectations across Europe vary
 Transparency is more than access to documents
 Best practice v lowest common denominator
 Importance of working with what you’ve got
 Nothing can be taken for granted
 Making it work for citizens
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Concluding remarks

20. European Ombudsman
@EUOmbudsman
graham.smith@ombudsman.europa.eu
www.ombudsman.europa.eu