A version of this article appeared in The Guardian, June 1996
Sweden’s decision to join to the European Union in 1995 was good news for the cause of open government. Its two hundred year old tradition of freedom of information legislation seemed likely to spur Europe’s institutions, and indirectly Britain’s, towards more openness. But many Swedes feared the opposite: that they might be pressed to conform with Europe’s more secretive culture. So seriously was this felt that Sweden attached a remarkable declaration to its accession agreement, stating that access to official documents, and the protection of journalists’ sources, “remain fundamental principles…of Sweden’s constitutional, political and cultural heritage”. With a taste of problems to come, the existing member states countered this “unilateral” declaration, with their own, noting that they “take it for granted that…Sweden will fully comply with Community law in this respect”.
Within the year Sweden stood accused of breaking Community law, precisely because of its freedom of information law. At the heart of the dispute is Europol, Europe’s new police agency, set up to coordinate measures against organised crime.
The Swedish Union of Journalists’ newspaper, ‘Journalisten‘, applied under the Swedish legislation for a set of twenty EU documents mainly dealing with discussions on the Europol convention, which at the time had not been finalised. The applications, to the Ministry of Justice and Police Authority, were strikingly successful. Eighteen of the twenty documents were released. But when the paper applied to Brussels for the same documents under the EU Council of Ministers’ new transparency rules only four were disclosed. Journalisten are now challenging the refusals in the European Court of Justice.
The case has provoked heated feelings all round. The EU Council argues that the union’s case is inadmissible, and that they are not genuinely interested in obtaining the documents, merely in testing the EU’s disclosure rules. More provocatively, it says the documents “have come into the public domain as a result of an act contrary to Community law” and that by releasing them under its own freedom of information law, which dates from 1766, Sweden “was in breach of Community law, since no Council decision had been previously taken, nor even sought, to authorise such a disclosure”. Officials have suggested that the Swedish government considered only Sweden’s interests and not those of other states. But the journalists point out that two documents were explicitly withheld by Sweden because they revealed other governments’ views, and that various other passages were blanked out for the same reason.
The Council’s statement of defence can now be read on the Internet where it has been published by an organisation of Swedish investigative journalists (http://www.jmk.su.se/dig/jour-vs-eu/euindex.html). This has enraged the Council which protested that the Court of Justice’s rules on confidentiality had been violated. The court also appears to have taken offence, and has suspended the case pending an investigation. So now the journalists’ union, like the Swedish government, stands accused of immoderate openness.
If the case resumes, the court will rule on whether the Council was justified in withholding the papers under Council decision 93/731/EC on access to Council documents. The Council argues, in part, that the documents are exempt under a provision which protects “the confidentiality of the Council’s proceedings”. In an earlier case, the Guardian’s John Carvel succeeded in overturning the Council’s original interpretation of this provision. The Court of Justice ruled that documents cannot be automatically withheld and that in each case the public interest in disclosure must be balanced against the need for confidentiality. The Council points to its decision to release four of the requested documents as evidence that it has done so in the present case.
But its main argument against disclosure is that the documents could “undermine the protection of the public interest” because of “public security” considerations. That sounds plausible, given that the documents relate to a body dealing with international crime – until you examine the documents themselves. Many discuss matters such as the arrangements for training personnel in the Dutch language; average hotel and subsistence costs; and the definition of terms such as “motor vehicle crime”. Only occasionally does anything with a conceivable security implication appear, such as the date by which new security fences must be installed at Europol’s new premises in the Hague.
Ironically, many of the documents are concerned with freedom of information and data protection questions: whether people should be entitled to see the information held on them by Europol, and who should pay compensation if someone is injured by inaccurate data.
They provide a tiny, but fascinating glimpse into a private debate at which member states secretly haggled over the civil rights of their citizens. At one point the French presidency proposed that for certain categories of information “the lowest common denominator” should be adopted. The view was challenged by the European Commission’s Secretariat General which argued that a blanket refusal to disclose would be incompatible with the 1981 data protection convention.
Why should such decisions be taken in secret? It is not merely suspected criminals who may feature in Europol’s files. Dossiers may be opened on the victims of crime, on witnesses, contacts and associates and on “persons who can provide information on the criminal offences under consideration” – which could lead to Europol files on journalists, with a view to tracking down their sources.
The Europol convention has now been agreed, after mainly secret discussions, and awaits ratification by national parliaments – though it is too late for changes to be made. A draft treaty was provided to a House of Lords committee in 1994, and later published by it, though by that time it had been superseded by subsequent, unpublished, drafts.
Sweden has already published proposals, for the forthcoming intergovernmental conference, for a right of access to EU documents to be built into European treaties. But the crucial question may be whether Sweden’s unilateral disclosures will continue. If it does, British requesters, like anyone else, will remain able to apply for such documents under Swedish law. Sweden will certainly come under increasing pressure from its European partners to abide by their rules in handling EU documents. But if they resist, Europe’s decision making process could be exposed real scrutiny as EU documents reach the public via Stockholm.