By Neus Vidal, Monitoring Officer at the European Centre for Press and Media Freedom (ECPMF)
What are the algorithms used by public bodies to automatically process applications for energy subsidies? Who were the experts that sat on scientific committees advising European governments during the pandemic and what did they recommend? What did the President of the European Commission Ursula von der Leyen and the CEO of Pfizer discuss via text messages to agree on the purchase of 1.8 billion doses of Covid vaccine?
These apparently unrelated questions have something in common: they were all recently asked by journalists from several European countries using Freedom of Information Act requests (FOIA) and they were all rejected by public bodies, which argued that publishing the data could, amongst other reasons, be a breach of privacy or jeopardise national security.
Freedom of Information Acts, sometimes referred to as Access to Information Laws or Transparency Acts, are pieces of legislation which allow citizens to request information held by public authorities. These laws usually describe obligations for governments to proactively publish information (active transparency), establish the right to request data from public bodies (reactive transparency), specify the type of information that can be requested and the bodies that are covered. Additionally, they also define timeframes to reply to requests.
However, in practice, accessing information held by public authorities is not always an easy procedure and there are many differences across European states. Cross-border investigations in the continent systematically show that when faced with a similar request, European governments react in different ways and European citizens from different countries do not have the same right to obtain information and hold governments accountable. Real timeframes to reply to requests also vary between countries and some authorities refuse to provide information which is already available in neighbouring states.
Recent requests sent by journalists show that the process is usually time-consuming and that obtaining satisfactory answers from public authorities is complicated. Journalist Alexander Fanta from Netzpolitik.org recently requested to see text messages between Ursula von der Leyen and Pfizer’s CEO Albert Bourla, in which they discussed the purchase of 1.8 billion doses of Covid vaccine. According to a previous article published by The New York Times, they had negotiated via text messages, but the Commission refused to disclose them arguing that messages were “by its nature a short-lived document which does not contain in principle important information concerning matters relating to policies, activities and decisions of the Commission and therefore it does not normally qualify as a document fulfilling the registration criteria. In this respect, the Commission record-keeping policy would in principle exclude instant messaging.” The case was brought to the European Ombudsman, who disagreed with the Commission and stated that “text messages fall within the scope of the EU’s law on public access to documents (Regulation 1049/2001).”
In Spain, another recent Freedom of Information case also demonstrated the need to define information and documents in a non-restrictive way in order to ensure full transparency and accountability. Journalists at the non-profit media outlet Civio asked for the source code for software that processes applications for energy subsidies after spotting potential mistakes that could result in some applications being unfairly rejected. After the government refused to disclose the algorithm, they took the case to the Transparency Council and to the Courts, which rejected the publication arguing that software was protected by intellectual property rights and that publishing it could jeopardise public security and national defence.
In Malta, journalists at The Shift News asked for information regarding possible contracts and payments made by public entities to Malta Today co-owner Saviour Balzan and his commercial entities. Requests were rejected by several public authorities but, after the newspaper appealed, the Information and Data Protection Commissioner ordered the disclosure of documents. Around 30 ministries and public authorities refused to publish the information and challenged the decision at the Appeals Tribunal, which meant that the newspaper had to prepare to go to Court several times in order to access information, a time-consuming process which had to be crowdfunded by readers and supporters.
These recent cases show that the right to access information held by public authorities in Europe is not yet fully guaranteed in all countries and it differs from one State to another, despite having similar legislation. The 2021 Media Pluralism Monitor published by the Centre for Media Pluralism and Media Freedom at the European University Institute proved that these are not isolated incidents. The report highlighted several problems faced by journalists when sending Freedom of Information requests such as long timeframes to respond to petitions, administrative silence, high refusal rates and ineffective appeal procedures.
Additionally, it must be noted that the Covid-19 pandemic exacerbated many of the existing problems. In fact, in the early stages of the crisis many European governments passed emergency legislation which either increased timeframes to reply to requests (e.g. Hungary) or completely suspended the right for several weeks or months (e.g. Spain, Italy). In practice, that meant that relevant information about how executives were making decisions was not available to citizens while severe legal restrictions were curtailing fundamental rights.
The Covid-19 case is a relevant example to illustrate how Member States have very different approaches to guaranteeing an effective right to access information – and therefore to promoting transparency – which, in turn, leads to severe inequalities amongst European citizens and their ability to hold governments accountable. Access to Information is an essential right to be able to participate in political debates and in the public sphere, and therefore a key element that needs to be taken into account when discussing the rule of law. In fact, it should also be considered whether it would be beneficial to harmonise this type of legislation in order to make sure that all Member States guarantee a similar level of transparency, as has been done with Privacy through the General Data Protection Regulation (GDPR).
Media Pluralism and Media Freedom are already recognised as essential pillars of democracies and of rule of law debates, and it is necessary that access to information is, in turn, recognised as one of the main pillars sustaining Media Freedom. If the right is not guaranteed and protected journalists will not be able to gather all the necessary data to publish trustworthy information and hold power to account, which is the most essential role that media must fulfil in a democracy.
An earlier version of this article appeared, in German, in Internationale Politik under the title “Säulen der Freiheit” https://internationalepolitik.de/de/saeulen-der-freiheit