Secretive institutes forced to rethink

August 4, 2000

A Dutch academic has won a case at the European Court of Justice that forces European Union institutions to give detailed reasons for any refusal of access to public documents held in their libraries and databases.

Following a case brought by Aldo Kuijer, a lecturer on immigration at the University of Utrecht, the court has ruled that explanations must be supplied for individual documents (even if they are part of a body of documentation), which are the subject of a confidentiality order, and that these must not be cursory.

The court said in its ruling: "The council is obliged to carry out a specific assessment of the risk that disclosure of the documents to which access is sought could entail for the public interest."

Deirdre Curtin, a professor of law at Utrecht, who assisted Mr Kuijer in the case, said: "This will force the institutions to be more rigorous in their reasoning."

Her colleague was refused access to the EU Council of Ministers' centre for information, discussion and exchange on asylum, where he had been seeking information about the fate of returned asylum seekers in Albania, Angola, Sri Lanka, Bulgaria, Turkey, China, Zaire, Nigeria and Vietnam.

His application for the documents and a list of relevant contact persons was turned down by the council's secretary-general under article 4(1) of decision 93/731 on public access to council documents (protection of the public interest).

Mr Kuijer later obtained copies of some of the reports via the Danish parliament and, having studied them, he argued before the court that a blanket refusal was unfair, because "the information contained... varies considerably, not only in its nature but also in its degree of sensitivity", a plea accepted by the ECJ.

The court said that it was not clear "that the council had examined each of the documents individually, however briefly, or even in groups having the same essential features".

The court added that decisions were taken "without the council putting forward any reasons that would have enabled the applicant to understand why there was a risk that disclosure of those four reports might have a different impact on the diplomatic relations of the EU".

The court threw out the council's refusal to allow him access to the documents, but allowed ministers the right to reject his application for a second time, having followed the proper procedures. It also ordered the council to pay costs.

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