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ST-a COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(93) 191 final 
Brussels, 5 May 1993 
PUBLIC ACCESS TO THE INSTITUTIONS' DOCUMENTS 
COMMUNICATION TO THE 
COUNCIL, THE PARLIAMENT AND THE ECONOMIC AND SOCIAL COMMITTEE 
- 2 -
PUBLIC ACCESS TO THE INSTITUTIONS' DOCUMENTS 
INTRODUCTION 
During the adoption of the Treaty on European Union at Maastricht on 15 
December 1991, a declaration was made on improved public access to 
information. The text of the declaration is the following: 
"the Conference considers that transparency of the decision-making 
process strengthens the democratic nature of the institutions and 
the public*s confidence in the administration. The Conference 
accordingly recommends that the Commission submit to the Council no 
later than 1993 a report on measures designed to improve public 
access to the information available to the institutions." 
The European Council at Birmingham subsequently declared that the 
Community must demonstrate to its citizens the benefits of the 
Community and the Maastricht Treaty and that the Council, Commission 
and Parliament must do more to make this clear. Moreover, in Birmingham 
the Commission was asked to complete by early 1993 its work on 
improving public access to the information available to the Community 
Institutions. 
The Edinburgh European Council continued the work for a more open and 
transparent Community. Specific measures were adopted to start the 
process of opening up the work of the council. Before Edinburgh the 
Commission had already taken a package of measures to increase 
transparency. 
This package included producing the annual work programme in October, 
to allow for wider debate including in national parliaments; wider 
consultation before making proposals, including the use of green 
papers; making Commission documents more rapidly available to the 
public in all Community languages; and attaching higher priority to the 
consolidation and codification of legal texts. The Commission has taken 
these initiatives whilst being aware that it has already a commendable 
history of an open door policy, especially in comparison with existing 
practices in national administrations. Traditionally it has been open 
to input from the public. This stems from the belief that such a 
process is fundamental for the development of sound and workable 
policies. 
The Edinburgh European Council welcomed these measures taken by the 
Commission. At the same occasion the European Council reconfirmed its 
invitation made at Birmingham for the commission to complete by early 
next year its work resulting from the declaration in the Maastricht 
Treaty on improving access to information. 
RESPONSE 
The Commission views this declaration as an important element of the 
Community's policy on transparency of the Institutions. Improved access 
to information will be a means of bringing the public closer to the 
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Community Institutions and of stimulating a more informed and involved 
debate on Community policy matters. It will also be a means of 
increasing the public's confidence in the Community. 
In order to implement the Maastricht declaration the Commission has 
undertaken a comparative survey on existing access to information 
policies in the Member States and in some third countries. The results 
of this survey are summarised in the annex as requested in Maastricht. 
The fact finding survey has shown the different experiences of improved 
access to information. Access to information consists of two main 
elements. 
Firstly it encompasses a series of measures taken by the public 
authorities themselves aimed at informing the general public of their 
actions. In this respect the Commission has noted that from the time 
the Community was established both Community Institutions and Member 
States have taken numerous initiatives in this field to inform the 
public and to make them more aware of Community policies. 
Secondly, access to information also consists of making information 
available upon request from a member of the public. Some countries 
have developed a relatively long tradition in this respect, which has 
evolved over the years. This policy is based on the principle that 
access is granted while at the same time protection is given 'to public 
and private interests, and the proper functioning of the public 
authority concerned is preserved. 
The public is granted access to specific types of information in some 
countries, while in other cases these were combined with general access 
rules. Directive 90/313/EEC on Access to Environmental Information is 
an example of a Community initiative on access to a specific area of 
information. 
FURTHER STEPS 
Taking account of the comparative survey on the situation in different 
member states and third countries there is a strong case for 
developing further the access to documents at Community level. 
The Commission therefore is prepared to take further steps in order to 
establish a framework for granting general access to documents. This 
will entail some adjustments of the Commission's working practices but 
the Commission considers that general access is a particularly 
important instrument to bring the Community closer to its citizens. 
The Commission feels that the principle of access to information held 
should be shared by the other institutions and Member States. It 
invites the other institutions to cooperate in the development of 
such an approach which should contain at least the fundamental 
principles and a minimum set of requirements. As a first step, this 
could take the form of an inter-institutional agreement. Special 
attention should be given to the specific role of each institution 
within the existing inter-institutional framework. 
_ 4 -
In order to contribute to this common approach, the Commission, for its 
part, suggests that work be based on the following principles which 
it intends to elaborate upon further. 
Access to information is granted to documents, the precise 
definition of which will be established; 
Access to such documents will be provided subsequent to a 
sufficiently precise request from the public; 
There shall be no obligation on the person making the request to 
justify the reasons for wanting the document; 
A reply to a request for information should be given as soon as 
possible. 
A request for a document may be refused in order to safeguard: 
personal privacy; 
industrial and financial confidentiality; 
public security including international relations and monetary 
stability; 
- information passed to the Institutions in confidence. 
Should a request meet with a refusal, then the institution must reply 
in writing giving the reasons for the decision. 
The Commission will use the time remaining before the European Council 
to be held at Copenhagen by the end of June to prepare a further 
outline of the general access to documents policy. It intends to submit 
this to the other institutions in the context of a second communication 
on transparency which will focus on a general framework and specific 
actions to improve the Community's transparency. 
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ANNEX 
PUBLIC ACCESS TO INFORMATION 
(Comparative survey) 
- b -
PUBLIC ACCESS TO INFORMATION 
(Comparative survey) 
CONTENTS 
1. Historical overview 
2. Access to information - a comparative survey 
2.1 General 
2.2 Member states and third countries 
2.3 Quantatitive analysis 
2.4 Community Institutions 
Table: Overview of General Access laws 
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1. HISTORICAL OVERVIEW 
Public administrations in many countries have in the past often tended 
to carry out their work within a framework of secrecy laws designed to 
protect major public interests (e.g. defence, foreign affairs, etc.). 
Security regulations were thus established to ensure that information 
not destined for public release remained protected. 
Furthermore, legislation protecting the citizens themselves with 
regard to such issues as health and fiscal matters traditionally has 
been quite important. 
A dual track rationale for restricting information on public 
administration can therefore be seen: to protect both public and 
private interests. 
The traditional way in which a government administration informs the 
public of its decisions is through some form of official publication 
(journal, gazette, etc.). The public is also kept informed through the 
accountability of ministers to parliament, through the oversight of 
such external bodies as the court of auditors and law courts, through 
public access to plenary meetings of parliament and its various select 
committees and, finally, through a statutory right of petition. 
Turning point 
During the course of the 1960s there was a growing belief that such a 
relationship between government and those it governs should be 
supplemented with a more open approach. This belief arose from a 
desire for a stronger form of democracy, i.e., a more democratic form 
of government. It was felt that the public's business, in particular 
the way its affairs are administrated, should be conducted more 
publicly. Another driving force was the fact that whilst 
administrations were being entrusted with more and more tasks 
parliamentary control appeared to be less effective. 
It was also assumed that a more open approach stimulates an informed 
debate on public policy issues and also opens up the possibility of 
improving control over the workings of the administration. 
Policies adopted 
A number of Member States and third countries therefore gradually 
adopted a series of measures designed to open up and improve public 
administration. 
These national measures included mechanisms to increase the public 
participation in the administrative decision-making process. The 
measures vary from an obligation to pre-consult the public (through, 
for example, the issuing of green and white papers), the right to call 
for a public hearing and the granting of a right to the public to 
propose legislation which the relevant public authority would then be 
obliged to adopt or to consider. 
- b -
The measures also included the reinforcement of provisions dealing with 
improved explanation and justification of decisions to the public; the 
improved publication of final decisions and increased opportunities for 
appeal against administrative decisions. In certain cases, new ways of 
appeal were created, such as the establishment of an ombudsman. 
Finally, a number of countries also adopted the principle whereby 
information held by public authorities is generally open to the public 
unless such access has been explicitly exempted for a limited number of 
specified reasons. 
2. ACCESS TO INFORMATION - A COMPARATIVE SURVEY 
2.1. General 
Three trends can be indentified which relate to the strengthening of 
access to information held by public authorities: 
- access to consult administrative files was given to those 
members of the public who are a party in a lawsuit. The 
consultation of such files stems from the general right of 
defense. In several instances this form of access is granted 
regardless of whether or not the member of the public is 
involved in a judicial (appeal) procedure. This development 
led to the establishment of a number of specific access rules 
for each subject of information; 
- access for the individual concerned to consult files containing 
personal data. These could be files held by the public sector 
concerning such things as appointments and nominations. It 
could also comprise access to files held by the private sector 
(insurance companies, for example). This has resulted in a 
number of specific access rules for each subject of 
information; 
general access to information held by public authorities 
(regardless of whether or not the individual/company concerned 
has a specific interest or is involved in a lawsuit). This has 
led to a number of general access to information laws. 
The fact-finding carried out indicates that, following the developments 
described above, however, the situation in individual countries varies. 
Only access to a specific kind of information was granted to the public 
in some countries while general access rules came into force in other 
countries. In a third group of countries both types of rules were 
established. 
Active and passive information supply 
The survey has shown that there are essentially two ways in which more 
access to information can be achieved. Firstly, there is the general 
(legal) obligation upon government departments actively to make all 
appropriate information (e.g. circulars, policy statements, 
departmental organigrams, etc.) available to the public at their own 
initiative. 
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Secondly, there is the more passive (legal) requirement for government 
departments to make information available upon request by a member of 
the public. This includes access to information which forms the basis 
of governmental decisions such as reports, studies, minutes, notes, 
circulars, instructions, opinions, forecasts, invoices, registers, 
indexes and other sorts of information which are held in written, 
computerized or audiovisual form. 
Focus 
The comparative survey focused on rules dealing with access to 
information available upon request (passive information supply), as 
laid down in general access to information legislation. It does not 
deal with specific access laws to a particular kind of information nor 
with active information supply by public authorities. The first of 
these issues has been extensively examined in the framework of another 
study, at the request of the Commission (Publaw 1, 1991). In the light 
of this study, the Commission has made certain proposals in this area 
(see below). 
2.2. Member States and Third Countries 
Inside the Community, Denmark, France, Greece and the Netherlands have 
statutes establishing general public rights of access to government 
information. In Belgium, draft proposals on establishing the right of 
access to information are currently under discussion at federal and 
regional level. As is also the case in many other countries, Portugal, 
Spain and the Netherlands have constitutional provisions regarding a 
general right of access to information without, however, Portugal and 
Spain having yet implemented specific legislation. 
Outside the Community, statutes granting access to information in the 
United states, Canada, Norway and Sweden have been studied. In the 
case of the latter country a right of access to information has been 
established for over two hundred years. 
All of these statutes (see annex 2) have one thing in common: they 
provide the public with a right of access to information upon request 
(albeit with certain exemptions from compulsory disclosure in order to 
protect public and private interests). 
Main Features 
Aim of the legislation 
The introduction of specific legislation dealing with the public's 
right of access to information is considered to be a vital element in 
the proper functioning of a free society as it further extends 
democracy within the administrative process. The right of access to 
information is consequently viewed as a fundamental civil right. It 
deals with the relations between an administration and the citizens it 
serves (third generation of human rights). In this regard the Council 
of Europe adopted a recommendation on a right of access to information 
held by public authorities. It invited the Member States to introduce 
a systematic right of access to such information. 
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A number of other benefits are cited in support of the introduction of 
access to information legislation. These include providing a system of 
checks and balances with which to oversee and control the workings of 
public bodies; improving management and ensuring a better allocation 
of resources; encouraging citizens to participate willingly in the 
workings of government and stimulating an informed debate on, as well 
as interest in, public policy. 
The subject of the information requested 
The statutes examined in the survey grant, in principle, public access 
to any kind of information held by a public authority which is 
contained in existing documents. The term "document" is defined 
broadly to include not only traditional formats such as written papers 
and photographs but also more modern information carriers (e.g. 
microfilms, computer discs, magnetic, video and audio tapes). It is 
also taken as a basic principle that a request for information will 
only be granted provided it does not necessitate the creation of 
information that doesnot exist (e.g. compiling and summarizing data 
from a number of separate sources). 
In the case of automatic data processing, however, this principle is 
sometimes difficult to maintain. To take the case of Sweden as an 
example, the rule has been established that a certain selection or 
merging of data should be regarded as an existing document if the 
selection or merging can be produced by routine measures. 
Which authorities are obliged to grant access ? 
The public authorities bound by the access to information legislation 
differ from one country to another depending on the form of government. 
Broadly speaking, in federal systems , federal authorities (including 
the independent regulatory agencies) are the object of access 
legislation. Moreover, often state ( as opposed to federal) legislation 
exists which provides access to information held by state authorities 
In Belgium for example, initiatives are taken at both federal and 
regional levels to provide access to information. 
In other governmental systems it is often the case that all public 
authorities (including the agencies) are governed by legislation 
concerning access to information. 
Some statutes also include specific provisions with regard to the right 
of access to information and opinions originating from independent 
Advisory Bodies i.e. bodies to advise one or more public authorities on 
a particular subject. 
who may make a request for information ? 
Most of the general access laws studied contain provisions whereby any 
person, regardless of his or her nationality, has the right to exercise 
access to information. In virtually all cases the individual making 
the request for information is under no obligation to give a reason for 
his or her request. 
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How is information made available to the public ? 
There are essentially four ways in which an individual can obtain the 
information: either by requesting a full copy, a summary, an extract or 
an opportunity to examine the document in person. In deciding which of 
these alternatives it should choose, the public authority concerned 
must bear in mind the preferences expressed by the individual making 
the request. 
Exemptions from the right of access to information 
The study has shown that grounds for exemption from access to 
information legislation vary considerably from country to country. In 
certain cases exemption is compulsory, it is sometimes optional and in 
other instances it can be either one or the other. 
Regulations in all the countries examined contain exemptions. These 
can be divided into two main categories : 
exemptions with regard to the protection of general public 
interest. Information shall not be disclosed if it damages 
international relations, the security of the state, national 
security and defense matters, economic and financial interest, 
the investigation of criminal offences and the prosecution of 
offenders, inspection activities, ... ; 
- exemptions with regard to the protection of personal privacy. 
In this respect, data specifically related to a person is not 
disclosed to third persons if this would cause disproportionate 
harm to the privacy of the person concerned. 
In some countries internal documents containing personal opinions on 
policy are also exempt from the legislation. 
Time-limits within which the public can expect to receive a reply 
These range from 10 days to 2 months. In some cases the authorities 
simply commit themselves "to reply as soon as possible". Most acts 
provide an opportunity for the time-limit to be extended in exceptional 
circumstances and for a varying number of working days. 
Charges for making information available to the public 
In the great majority of cases copies of requested documents are 
provided at cost price. However, personnel costs are not included in 
the calculation of this figure. 
Appeal procedures in the event of a request for information being 
refused 
In all the cases studied there exists the possibility of an appeal to 
an independent body, such as an administrative court, a council of 
state, an ombudsman or an information commissioner. 
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2.3. Quantitative analysis 
It has proved difficult to find material with which to quantify the use 
to which these regulations have been put. There do not appear to be 
any central registers for the filing of requests received. However, in 
some of the literature consulted, it is indicated that access to 
government information is used more by individuals or companies who 
have economic rather than purely civil interests. 
Should a request for information be refused or not answered within a 
given time period under the French system, the individual making the 
request can turn to the Commission d'accès aux documents administratifs 
(CADA) for an 'avis'. There has been a steady increase in the number 
of 'avis' issued: from 470 in 1979/80 to 2098 in 1989. The 10,000th 
•avis' was given out in 1989. 
In Canada, 48,493 people exercised their right to request government 
records during the period 1983-1991. In that same period, 31% of all 
requested information was disclosed, 37% was disclosed in part and 8% 
was dealt with in an informal way. In total, 4% was not disclosed 
while 20% of the requests could not be processed. The most frequently 
used exemptions were third party information and personal information. 
The total cost of operations was 39.5 million dollars, being 817 
dollars per request. The total fees collected were 586,961 being 
slightly more than 12 dollars per request. During the period 1990-1991 
54% of all requests made under the Access to Information Act came from 
the business sector and 28% from individuals. In Australia, some 
25,000 freedom of information requests were made in 1990/91. 
2.4. Community Institutions 
Present situation 
The EEC Treaty contains a number of rules relating to administrative 
transparency which are related to this subject. These include rules 
governing the non-disclosure of information of a kind covered by the 
duty of professional secrecy (Article 214 EEC); the non-disclosure by 
Member states of information which is considered to be contrary to its 
essential security interests (Article 223 EEC); the obligation to 
publish legal acts of the Community (Article 191 EEC); the obligation 
to state the reasons upon which such legal acts are based (Article 19 0 
EEC); the establishment of rules under which the Commission is obliged 
to give interested parties the opportunity to express their views on, 
for example, cases falling under EC regulations on competition rules 
applying to undertakings (Articles 85-9 0 EEC) and the obligatory annual 
publication of a General Report on the activities of the European 
Communities (Article 18 of Merger Treaty). 
- 13 
Many of the relevant provisions of the EEC Treaty have been implemented 
through detailed legislation in, for example, the Staff Regulations for 
Officials of the European Communities; the Council Regulation No. 3 
(EURATOM) implementing Article 24 of the Treaty establishing the 
European Atomic Energy Community (O.J. L 406, 6/10/58, p 63); the 
Council Regulation of 1 February 1983 concerning the opening to the 
public of the historical archives of the EEC and Euratom which foresees 
access to the archives after a period of 30 years (O.J. L 43, 15.02.83, 
p. 1); the Commission's decision of 7 July 19 86 on classified 
documents and the security measures applicable to such documents 
(SEC(86)1132-final) which, for example, implies that sensitive 
commercial information made available in the context of competition 
policy will obtain the appropriate security classification, and also 
contains rules on classification and declassification of documents and 
handling of information received from Member states; and the Council 
Regulation of 11 June 1990 on data subject to statistical 
confidentiality addressed to the Statistical Office of the European 
Communities (O.J. L 151 15.06.90, p. 1). This applies to the 
transmission to the Statistical Office of data which falls within the 
national statistical institutes• field of competence and is covered by 
statistical confidentiality. Moreover, a number of internal 
regulations have been established dealing with the internal functioning 
of each institution. 
Over the years, relevant case law has been established on this issue by 
the Court of Justice (see for example the February 1988 case of 
Zwartveld versus the Commission, as reported on 13.07.90). 
At community level, no general legislation exists with specific regard 
to access of information although the Commission has established 
certain explicit rules which do allow for it in the field of 
competition policy (see 12th yearly report on competition, 19 82, pp. 
42-43). A company involved in a proceeding is allowed to have access 
to the file on a particular case. However, any such access is limited 
by the Commission's obligation to refrain from discussing business 
secrets to third companies and the need to preserve the confidential 
nature of the Commission's internal and/or working documents. 
Furthermore the content of Article 47 of the Treaty establishing the 
European Coal and Steel Community should be noted as it indicates that 
the commission must not disclose information of the kind covered by the 
obligation of professional secrecy. 
In 1990 the Council of Ministers adopted directive 90/313/EEC to allow 
the possibility of access for any legal or natural person throughout 
the Community to information held by public authorities relating to the 
environment (O.J. No. L 158, 23.06.90, p. 56). In certain specified 
cases this information may be refused. This directive came into force 
on 1 January 1993. 
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The rules apply to environmental information held by the competent 
authorities of the Member States. It does not apply to environmental 
information held by the European Institutions. However, the Commission 
indicated, in the explanatory memorandum accompanying the proposed 
Directive, that it would take initiatives with the object of applying 
the principle of access to information (with regard to the 
environment) to the Community bodies (COM(88)final of November 28, 
1988). 
The Commission has recently proposed specific rules for personal data 
protection and the -frae, circulation of data_ .{COM(92)422-f inal) . This 
proposal is aimed at facilitating the free movement of data in the 
Community while ensuring a high level of protection for the individual 
with regard to the processing of personal data. It includes provisions 
for an individual's right of access to his or her own personal data. 
It also lists exhaustively the exceptions with regard to personal data 
contained in public sector files in order to safeguard such interests 
as national security, defence, criminal proceedings, etc. The draft 
Directive was accompanied by a Commission declaration on the 
application of the data protection principles to personal data held by 
the Commission and other Community institutions. Work is under way to 
implement these principles. 
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TABLE 
OVERVIEW OF GENERAL ACCESS LAWS 
Introduction 
By "General Access Laws" this survey refers to such rules as provide a 
general access to administrative documents. This means access which is 
neither restricted to a particular area nor demanding a special 
involvement of the person seeking the information. There are other 
types of rules on access which are restricted to certain persons or may 
demand that a person state a legal or at least a legitimate interest. 
These rules deal for example with company registers, population 
registers, and credit risk information. Such access rules exist in most 
of the Member States. 
The situation on general access both in the community and in certain 
other countries is as follows: 
Belgium 
Several draft proposals granting general access to information are 
under discussion at different levels of government. 
Denmark 
Act No. 572 of 19 December 1985 'On Access to Public Administration 
Files'. 
France 
Loi N* 78-753 du 17 juillet 1978: Titre premier: 'de la liberté d'accès 
aux documents administratifs' and Loi N* 79-587 du 11 juillet 1979 
'relative à la motivation des actes administratifs et à l'amélioration 
des relations entre l'administration et le public'. 
Germany 
There is no general access to information law in Germany. The 
regulation closest to such a law is the Administrative Procedure Act. 
However, access to information exists in specific areas, mainly to 
public registers. 
Greece 
Law No. 1599/1986, 'On the relationship between state and citizen, the 
establishment of a new type of identification card and other 
provisions', Art.16. 
Ireland 
There exists no general access legislation, however in specific areas 
access to information exists. 
- 16 -
Italy 
There is no general access to information law in Italy. The regulation 
closest to such a law is the Access to Administrative Documents law of 
7th August 1990 (No. 241). Access is possible for those who have a 
legal interest. 
Luxembourg 
There is no general access to information law. Access to administrative 
documents is regulated in the context of non-contentious administrative 
procedure. 
Netherlands 
Act of 31 October 1991, Stbl. 703 'On public Access to Government 
Information*. 
Portugal 
Constitutional provision regarding a general right of access to 
information. Moreover, in specific areas access to information exists. 
Spain 
Constitutional provision regarding a general right of access to 
information. Moreover, in specific areas access to information exists. 
United Kingdom 
No legislation exists on a general right of access to information. 
* 
Canada 
* Access to Information Act' of 1983. 
Norway 
Act No. 69 of 19 June 1970 concerning Public Access to Documents in the 
(Public) Administration as subsequently amended by Act No. 47 of 11 
June 1982 and Act No. 86 of 17 December 1982. 
Sweden 
1976 Freedom of the Press Act, chapter 2, *on the public nature of 
oficial documents*. 
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United States of America 
Freedom of Information Act of 1982 (5 USC Section 552), as part of the 
Public Information, Agency Rules, Opinions, Orders, Records and 
Proceedings (5 USC Section 551-559)'. 

ISSN 0254-1475 
COM(93) 191 final 
DOCUMENTS 
EN 16 oi 
Catalogue number : CB-CO-93-228-EN-C 
ISBN 92-77-55701-X 
Office for Official Publications of the European Communities 
L-2985 Luxembourg