Dr
Vigjilenca Abazi
Assistant
Professor of European Law
Maastricht University
What do
documents about negotiations of the Transatlantic Trade and Investment Partnership
(TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in
common? In order to access these documents, (selected) Members of the European
Parliament are requested to attend closed
reading rooms. This blog post discusses how an exception to open parliamentary
oversight is increasingly becoming a regular institutional practice and
questions its spillover effect on requests for public access to documents.
Background
As the
wording suggests, ‘closed reading rooms’ are meetings that take place behind closed
doors with the purpose of reading certain sensitive documents, particularly EU
official secrets. Documents are distributed at the beginning of the meeting and
collected again at the end; documents may not be copied by any means, such as
photocopying or photographing; no notes may be taken; and the minutes of the
meeting cannot make any mention of the discussion of the item containing
official secrets (Art. 6, Interinstitutional Agreement
between the European Parliament and the Council of 12 March 2014).
Closed reading
rooms are an exception to generally open meetings and discussions of the
European Parliament. This practice emerged with the introduction of rules on EU
official secrets and specifically the Interinstitutional Agreement of
2002 between the European Parliament and the Council concerning European Parliament’s
access to sensitive information in the field of security and defence policy
(see Art. 3 and Annex, second paragraph). The rationale of what this Agreement
called ‘secured room’ was to make sensitive documents available for purposes of
parliamentary oversight without ‘risks’ of public disclosure or possible leaks,
i.e. unauthorised disclosure of documents.
Initially,
this practice was mostly confined to the area of security and defence for
documents classified as official secrets. Yet, with the expansion of rules on
EU official secrets to areas well beyond security and defence to ‘activities in
all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the
use of closed reading rooms by MEPs to access sensitive documents became an
increasing practice.
Closed Oversight
At
first glance, closed reading rooms, or more generally ‘closed oversight’ (as
I have elaborated in-depth in this recent
article), might
seem an inevitable institutional practice when dealing with official secrets
and certainly this is not an issue confined to the EU, but a much wider world
practice of oversight (e.g. see here for a recent report). Yet, the following salient
questions arise:
Is it possible to keep account of closed oversight?
Accountability
does not stop with executive institutions. It is equally important that
oversight actors, such as the European Parliament, have appropriate
institutionalised processes of keeping track of documents that have been
reviewed, that meeting minutes reflect at least in some broad sense what has
been discussed when official secrets are involved, or any other means that
leave a traceable mark of institutional oversight having taken place. As the
current procedure of getting access to official secrets stands (see above
section on ‘background), it seems that keeping (some sort of public) track of
the oversight process is deeply challenging.
To what extent intra/inter institutional rules alter
primary law oversight architecture?
Another
disconcerting aspect to closed oversight is the way it has been developed, i.e.
mostly through rules of procedure and inter-institutional agreements. Indeed,
EU institutions in line with primary law have clear prerogatives to make
arrangements for their cooperation and to set out their rules of procedure (see
respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more
critically discussed whether this route of designing how oversight will take
place in practice follows the constitutional principle of openness in the EU in
full spirit and to what extent it alters the process of oversight in EU.
Does recent case law offer insights on closed
oversight?
In a
series of recent cases, the CJEU has clarified the relevance, scope and
procedural aspects of institutional access to information by the European
Parliament in the context of international negotiations (see previous EU Law Analysis
blogs here and here). However, case law does not
address the manner in which these documents should be read and importantly, primary
law only refers that accessibility to information is ‘immediately and fully’
(see Art. 218(10) TFEU) with no further details as to how access ought to be
organised.
What about public deliberation?
A crucial
role for the European Parliament as the direct representative of citizens (Art.
10 TEU) is to provide a link between what takes place in Brussels and what
citizens know. But actively creating space for public deliberation and prompting
public debate on issues that are overseen behind closed doors remain yet to be
delivered by the European Parliament.
Spillover Effect Even to Public
Access to Information?
Recently
four MEPs filed a public access request to the European Food Safety Authority
to gain access to unpublished studies determining the carcinogenicity of
glyphosate on basis of which EFSA made its assessments. EFSA was not
immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading
room’ for the MEPs to read these studies and reasons that the owners of these
studies seem open to sharing the studies in this manner.
In other
words, the EFSA is offering the MEPs a closed room to read the studies as a
response to a public access request
that should result in making the documents public, not only for these four MEPs
but also for the general public. It should be stressed that the EU public
access to documents regime does not foresee ‘physical reading rooms’ and indeed
that would be contrary even to its rationale of granting the widest possible
public access to documents. It seems that in the eyes of EFSA, a closed reading
room offers a ‘solution’ to the potential unwillingness of the authors of these
studies to disclose the documents. Yet, this possibility is also completely outside
the legal contours of public access to information. Legally, authors of these
studies do not have a veto on whether the studies would be public and certainly
do not have prerogatives to decide how public access to documents should be
organised in practice.
The EFSA
response is ongoing and the four MEPs have still not received access to all
requested documents. Yet, beyond this case, is the practice of closed reading
rooms expanding not only to institutional
access but also to public access
to documents? This is a issue that we should continue to examine more closely.
Barnard & Peers: chapter 8
Photo credit: commons.wikimedia.org
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