The European Court of Justice in a recent judgement has underlined the rights to freedom of information. If a governmental document cannot be disclosed in full for reasons of public security or institutional confidentiality, it should at least be made available in part.

To promote freedom of information and grant 'the widest possible access' to relevant governmental documents, the European Council and Commission adopted a Code of Conduct in December 1993, later both translating that Code into (legally binding) Decisions. According to those Decisions, access can only be refused if disclosure could undermine "the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations) or to protect the institution's interest in the confidentiality of its proceedings."

In a case that started in March 1999, the Fin Olli Mattila demanded access to a number of documents relating to negotiations about co-operation between the EU and Russia. Both the Council and the Commission's Directorate-General for External Relations refused to give Mr Mattila the requested documents, invoking the public interest exception in the Code of Conduct and referring to the need to keep discussions between the European Union and non-member countries confidential.

In September 1999 the Court of First Instance dismissed all of Mattila's access requests (for different reasons). Partial access would have been a breach of the principle of proportionality according to this first judgement, because examination of the documents in question shows that partial access would be meaningless because the parts of the documents that could be disclosed would be of no use to the applicant.

Appealing this decision, Mattila demanded at least partial access, "after cancelling or editing the sections which may justifiably qualify as liable to prejudice the international relations of the European Community." Mattilla argued that "it is for the person requesting access to decide whether the information in a document has any relevance for him and not for the Court of First Instance to decide this solely on the basis of the assertions of the institution in whose possession the document is." The Council replied that it would be absurd and contrary to the principles of sound administration and proportionality to disclose edited versions of the documents consisting almost entirely of blank pages.

The Court does not except this line of reasoning and rules that "institutions are obliged, under Decisions 93/731 and 94/90 respectively, and in accordance with the principle of proportionality, to examine whether partial access should be granted to the information not covered by the exceptions, in the absence of which a decision refusing access to a document must be annulled as being vitiated by an error of law."

Press release Court of Justice (22.01.2004)
http://www.curia.eu.int/en/actu/communiques/cp04/aff/cp040010en.htm

Judgement in case C-353/01 (available in 11 languages)
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELE...

Statewatch observatory on EU public access cases
http://www.statewatch.org/caselawobs.htm