[FYI] Council tells student that legal opinion on openness should stay secret

["Axel H Horns" <horns@ipjur.com>]

<http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&; 
doc=EO/03/4|0|RAPID&lg=EN&display=>  

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Council tells student that legal opinion on openness should stay 
secret  

DN: EO/03/4     Date: 11/02/2003  


                        TXT: FR EN DE DA ES PT NL IT SW FI EL
                        PDF: FR EN DE DA ES PT NL IT SW FI EL
                        DOC: FR EN DE DA ES PT NL IT SW FI EL

EO/03/4 11 February 2003  

Council tells student that legal opinion on openness should stay 
secret  

The European Ombudsman, Jacob Söderman, has called on the Council to 
give a researcher access to an opinion from its Legal Service. The 
opinion is on the legislative proposal from the Commission for rules 
on access to documents(1) and was requested by a student for his post-
graduate dissertation on public access to Council documents.  

In his special report to the European Parliament, the Ombudsman 
states "the refusal to give access is particularly surprising since 
it concerns an opinion about rules on access to documents". He asks 
the Parliament to support his call for the Council to reconsider the 
student's application.  

The student claimed that the Council had infringed the fundamental 
principle of giving the public the widest possible access to 
documents. The Council argued that disclosure of legal opinions would 
undermine its ability to obtain independent legal advice.  

According to the Ombudsman, a distinction should be drawn between 
different kinds of legal opinion:  

Opinions on draft legislation should normally become available to the 
public when the legislative process has reached a conclusion. They 
should be exempt only if the institution can show that disclosure 
would seriously undermine its decision-making process and that there 
is no overriding public interest in disclosure (Article 4 (3) of 
Regulation 1049/2001).  

Opinions given in the context of possible future court proceedings 
should normally be exempt from disclosure, as they are analogous to a 
communication between a lawyer and a client.  

Applying this distinction, the Ombudsman found that the Council was 
entitled to reject another application by the same complainant. This 
was for access to an analysis by the Council's Legal Service of a 
judgement of the Court of First Instance and how the Council should 
act in similar cases in the future.  

The Special Report can be found on the Internet at:  

http://www.euro-ombudsman.eu.int/special/en/default.htm  

For further information, please call Mr. Ian Harden, Head of the 
Legal Department, tel. +33 (0) 3 88 17 23 84  

(1)The European Parliament and Council finally adopted Regulation 
1049/2001 on public access to documents in May 2001  

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