"I/A" item note: Public Access to documents - confirmatory application on documents about telecoms data retention

January 30, 2003

Brussels, 29 Jan 2003

Full text of Document 5045/03

No. prev. doc.: 5044/03

Subject: Public access to documents - confirmatory application by Mr Tony BUNYAN (1/03)

Delegations will find enclosed a draft reply from the Council, approved by the Working Party on Information at its meeting on 23 January 20031, to the confirmatory application made by Mr Tony BUNYAN for access to documents (1/03).

The Permanent Representatives Committee is accordingly asked to suggest that the Council, at its next meeting:
- record its agreement on the draft reply as an "A" item, with the French delegation voting against;
- decide to publish the result of the vote.

DRAFT REPLY ADOPTED BY THE COUNCIL ON .................. TO CONFIRMATORY APPLICATION BY MR TONY BUNYAN (1/03)

- made to the Council by e-mail dated 24 December 2002,
- registered by the Council on 6 January 2003, pursuant to Article 7(2) of Regulation (EC) No 1049/2001 , for access to documents

The Council has carefully considered the application under Regulation (EC) No 1049/2001 (OJ L 145 of 31.5.2001, p. 43) and Annex II to the Council's Rules of Procedure (Council Decision 2002/682/EC , Euratom - OJ L 230 of 28.8.2002) in the light of the applicant's arguments and has come to the following conclusion:

1) The applicant refers to Room Document No. 7 drawn up by the Directorate general H (Justice and Home Affairs) of the Council Secretariat and examined by the Multidisciplinary Group on Organised Crime in its meeting on 16 September 2002. This document contains Member States' answers to a questionnaire on traffic data retention.

2) In its reply to the applicant dated 3 December 2002, the General Secretariat refused access to this document in its entirety on the basis of Article 4(1a) of Regulation No 1049/2001 , underlining the necessity to protect the public interest as regards public security.

3) After careful re-examination of room document No 7, the Council decided to release pages 1 to 16 of the document in question, which contain the replies to questions 1-4 of the questionnaire. However, the Council decided to refuse access to answers to the questions 5, 6 and 7, which read as follows:

"Question 5: Have you received any reports from your law enforcement authorities that have indicated an obstruction of their work due to the non-existence of appropriate legal instruments concerning traffic data retention ?"

"Question 6: Have you entered into a permanent dialogue with your telecommunications industry about the issue of traffic data retention and what are the tendencies you have observed? How would you judge the general willingness of the telecommunications industry operating in your country to embark on a retention of traffic data?"

"Question 7: How would you rate the solution of creating an instrument on traffic data retention for law enforcement purposes at European level ?"

4) The information submitted by Member States as regards questions 5 and 6 gives rather detailed information on weaknesses of the law enforcement and the working methods of police authorities in Member States which, if they were disclosed, could be used to undermine their work. This information is therefore to be refused on grounds of Article 4(1)(a), first indent, of Regulation 1049/2001 (public security).

However, the applicant may have access to the text concerning the replies of
- the Danish delegation, as regards questions 5 and 6;
- the Swedish delegation, as regards question 6 since this information is in the public domain in the Member States concerned.

5) In their answers to question 7, Member States give their preliminary views on the creation of an instrument on traffic date retention at the EU level. They are a first input into a "brainstorming" exercise whose release would be premature in view of the future discussions on such an instrument within the Council. Their release could seriously undermine the Council's decision-making process on this issue.

In the absence of any overriding public interest in disclosure, the Council therefore decided to refuse access to this part of the document on grounds of Article 4(3), first subparagraph, of Regulation 1049/2001 .

However, the applicant may have access to the reply of the Danish delegation, the content of which is in the public domain in Denmark.

6) The applicant also refers to Mr Brunmayr's letter to MEP Thors, Vice-President of the European Parliament Petition Committee, in which he stated that the Council Secretariat was instructed to provide full references to room documents and non papers in the outcome of proceedings of the meetings of the Council or of its preparatory bodies. The applicant noted that the Outcome of the Multidisciplinary Group on Organised Crime did not contain references to the room documents he had requested.

7) The Council indeed failed to provide references to the above documents. Efforts are being made to comply with the newly established procedures. However, this administrative omission does not appear to have stopped the applicant from excercising his rights.

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