Freedom of information in Belgium

1. Freedom of information in Belgium Prof. dr. Frankie Schram KU Leuven Public Governance Institute 27 September 2019

2. Former position • A ‘closed shop’ • A general attitude, combined with personnel regulations severely constricting information distribution Prof. dr. Frankie Schram

3. What is freedom of information • A legal obligation on public authorities to give access or distribute documents or information they have in there possession • Not necessary a right • It about a relation between citizens and government • What is ‘public’ according to freedom of information legislation is not necessary public domain Prof. dr. Frankie Schram

4. First legislation • Implementation of Directive 90/313/EEC: access to environmental information • Flemish Region: article 33 main environmental Order • Wallonian Region: Decree of 13 June 1991 • Brussels Region: Ordonnance of 29 August 1991 Prof. dr. Frankie Schram

5. Constitutional Framework • Art. 32 Const.: Anyone has the right to have access to, and obtain a copy of each administrative document, notwithstanding constitutional exemptions provided for by Statute, Regional/communal Decree and/or the Acts of the Brussels Region • No relation with freedom of expression (Const.C.) • Art. 23 Const.: the right to live in a healthy environment Prof. dr. Frankie Schram

6. Constitutional Framework Art. 32 Const.Art. 23 Const. Right on his ownProcedural right in function of an other right right of access toright of access to adm. documentsenvironmental info direct working no direct working but standstillprinciple Aarhus Convention Directive 2003/4/EC Prof. dr. Frankie Schram

7. Constitutional Framework • Art. 32 Constitution • Remarques: • One of the strongest constitutional article in the world • But limited to administrative documents • Content • Right of access on demand • Subjective right • Direct working • Right of consultation and right to have a copy • Universality • Possibility of exeptions Dr. Frankie Schram - Catholic University of Louvain - University of Antwerp

8. Prof. dr. Frankie Schram

9. Constitutional Framework • Art. 32 Constitution • Division of competences between the federale State, the Regions and the Communities • Procedures: each legislator, for the institutions he organises, determine the procedure applicable to documents in their possession (formal criterium) • Exceptions: each legislator, for documents relating to its responsabilities, has the capacity to impose exceptions to the general rule of access, regardless of the administrative authority that possessess those documents (material criterium) Prof. dr. Frankie Schram

10. Regulations Prof. dr. Frankie Schram

11. General characteristics of regulations • Special to the Belgium regulations on access to administrative documents = not limited to a right of public access • Also a right to personalaccess • Also a right of interestaccess • Information or documents of personal nature = information/documents that contain a expression of value or description of behaviour of a easily identifiable natural person Prof. dr. Frankie Schram

12. General characteristics of regulations • Material scope: administrative document • Materialised information • Form and carrier are not important • Content is not important • Creator is not important • Which an administrative body has in his possession • Personal scope: administrative body • Content of the right of access: • right to have a consultation • Right to obtain a copy • Right of explanation Prof. dr. Frankie Schram

13. General characteristics of regulations • Extension to • active distribution of information/documents and • a right of correction of personal information • A right of interest acces to documents of personal nature • A fundamental right, subject to a procedure • A simple application: relevant issue and information permitting identification of the document to which access is sought • Obligation of registration • Obligation to refer if an administration is not in the possession of an administrative document • Time aspect: 30 days/20 days, possibility to delay • Motivation of the decision Prof. dr. Frankie Schram

14. Legislation in execution of art. 32 Const.: general characteristics • A catalogue of exceptions In principe no generalexemptions are allowed • no exclusion of a specificinstitution • No exclusion of specificdocuments Prof. dr. Frankie Schram

15. General characteristics of regulations • General aspects on exceptions • restrictive interpretation • Limited group of exceptions • Motivation in concreto • Partial access Prof. dr. Frankie Schram

16. General characteristics of regulations • A catalogue of exceptions • Exceptions of an obligatory nature • Relative: public interest test • The security of the population • Fundamental rights and freedoms of citizens • Federal international interests of Belgium • The intelligence with respect to or prosecution of criminal acts • Federal economic or financial interest, the national currency or public credit rating • The confidential nature of business – and/or manufacturing data transmitted to the authority • The anonymity of the individual who transmitted the data to the authorities on a confidential basis, with a view to communicationg a(n) (alleged) criminal act Prof. dr. Frankie Schram

17. General characteristics of regulations • A catalogue of exceptions • Exceptions of an obligatory nature • Absolute: harm test • Endager an individual’s privacy • Conflict with a duty of confidentiality introduced by law • Conflict with the confidentiality of the meetings of (collegial) authorities Prof. dr. Frankie Schram

18. General characteristics of regulations • A catalogue of exceptions • Exceptions of an facultative nature • The unfinished and consequently potentially confusing nature of a document; • The fact that the document concerned relates to an opinion issued at the initiative of the body/individual giving the advice (that is, not required by law) • The seemingly vague or unreasonable nature of the request Prof. dr. Frankie Schram

19. General characteristics of regulations • Right of appeal • Administrative procedure • Administrative review by the same authority • Reviewing procedure before the same authority + • At the same time: asking an advise to the Commission for access to documents • This model was the normal situation (ex. Flemish level and for acces to environmental information) • Administrative review by a different authority • Not permanent: commission • Permanent: appealinstance • This model has become the normal situation (ex. federal level) • Jurisdictional procedure • Council of State • Normal courts (because it is a subjective right) Prof. dr. Frankie Schram

20. General characteristics of regulations • Prohibition of the commercial distribution or use of the documents (Walloon decree and decree of French community) • Reuse: use for an other reason that the reason why the document is collected or created • Other legislation in execution of Directive 2003/98/EG Prof. dr. Frankie Schram

21. Use and impact • No good material • Registration is not good • Appealcases are lower than in other countries (France, the Netherlands) • A lot of questions on access has nothing to do with public access, but with the exercice of a right to interest access and a right of personal access Prof. dr. Frankie Schram