Access to Info on Government Deliberations A Comparative Overview Darian Pavli Open Society Justice Initiative

Government Deliberations Info US FOIA Approach: Exemption 5: Inter-agency or intra-agency memorandums or letters … which would not be available by law to a party other than an agency in litigation with the agency. Meant to incorporate govt’s common law privilege from discovery in civil litigation Meant to incorporate govt’s common law privilege from discovery in civil litigation Applies also to advice etc provided by private parties at request of agency—but not communications with members of Congress Applies also to advice etc provided by private parties at request of agency—but not communications with members of Congress Supreme Court has recognized five sub-categories of privilege/exemptions Supreme Court has recognized five sub-categories of privilege/exemptions

US Jurisprudence The Deliberative Process Privilege Protects internal advice, recommendations and opinions to safegurad quality of decision-makingProtects internal advice, recommendations and opinions to safegurad quality of decision-making Pre-decisional docs protected v. post-decisional docs released Pre-decisional docs protected v. post-decisional docs released Final decisions, opinions or policy statements are clearly publicFinal decisions, opinions or policy statements are clearly public Also public are binding “instructions to staff that affect members of public” – or other “secret law” or “working law:” eg agency interpretations of laws they implementAlso public are binding “instructions to staff that affect members of public” – or other “secret law” or “working law:” eg agency interpretations of laws they implement

US Jurisprudence When is a record pre-decisional or deliberative? When is a record pre-decisional or deliberative? Is it such that disclosure would produce chilling effects within agency? Is author of info identifiable?Is it such that disclosure would produce chilling effects within agency? Is author of info identifiable? Is it a draft or recommendation?Is it a draft or recommendation? Does it weighs pros and cons of taking one position or another?Does it weighs pros and cons of taking one position or another? Has it been later adopted as the final agency policy?Has it been later adopted as the final agency policy?

US Jurisprudence Facts vs. opinions: Facts vs. opinions: factual information in a deliberative document must be released …factual information in a deliberative document must be released … … unless “inextricably intertwined” with opinions/recs …… unless “inextricably intertwined” with opinions/recs … … or exposes too much re the deliberative process itself: a sort of mosaic theory (eg Waldheim Report)… or exposes too much re the deliberative process itself: a sort of mosaic theory (eg Waldheim Report) Conflicting case-law re processed data: are numbers facts?Conflicting case-law re processed data: are numbers facts? Investigations & evaluations: prospective withheld v. retrospective releasedInvestigations & evaluations: prospective withheld v. retrospective released

US Jurisprudence Other Exemptions Work Product Privilege Work Product Privilege Protects docs prepared by govt attorney that reveal litigation strategyProtects docs prepared by govt attorney that reveal litigation strategy Attorney-Client Privilege Attorney-Client Privilege Protects agency’s confidential communications with its attorneysProtects agency’s confidential communications with its attorneys Some Commercial Info Some Commercial Info Generated by govt in the process of awarding contractsGenerated by govt in the process of awarding contracts

US Jurisprudence Notice and Comment Procedures Notice and Comment Procedures Required by law re administrative rule- and policy-makingRequired by law re administrative rule- and policy-making Public is given notice about future rule-making and opportunity to provide comments, before decision is takenPublic is given notice about future rule-making and opportunity to provide comments, before decision is taken Agencies required to consider comments and give reasons for not accepting themAgencies required to consider comments and give reasons for not accepting them

European Standards Council of Europe’s 2002 Recommendation: Council of Europe’s 2002 Recommendation: government deliberations protected “during the internal preparation of a matter” EU Regulation 1049 on Access to EU Info: EU Regulation 1049 on Access to EU Info: Access to a document prepared by an institution for internal use or provided by third party,Access to a document prepared by an institution for internal use or provided by third party, relating to a matter where decision is pending,relating to a matter where decision is pending, refused if disclosure would seriously undermine the institution's decision-making process,refused if disclosure would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.unless there is an overriding public interest in disclosure. “Opinions for internal use” may be withheld even after decision taken—subject to public interest override“Opinions for internal use” may be withheld even after decision taken—subject to public interest override

European Standards EU Courts’ Case-law: BAT v. Commission [Case T-111/00] : BAT v. Commission [Case T-111/00] : BAT asked for docs from Commission committee on excise dutiesBAT asked for docs from Commission committee on excise duties Comm not willing to give full access b/c would reveal positions of Member StatesComm not willing to give full access b/c would reveal positions of Member States CFI held: once discussions on the matter were concluded, private/public interest in disclosure prevailed over confidentiality of past negotiationsCFI held: once discussions on the matter were concluded, private/public interest in disclosure prevailed over confidentiality of past negotiations

European Standards JT Corporation v. Commission [Case T-123/99 [2000] JT Corporation v. Commission [Case T-123/99 [2000] JT asked for copies of Commission inspection reports and non- EU govt correspondence re: importsJT asked for copies of Commission inspection reports and non- EU govt correspondence re: imports Commission raised confidentiality expectations of foreign govtCommission raised confidentiality expectations of foreign govt CFI ruled that factual info did not implicate confidentiality of inspections or correspondence in this caseCFI ruled that factual info did not implicate confidentiality of inspections or correspondence in this case

European Standards UK FOI Act 2000: Formulation of govt policy (sec. 35) or effective conduct of public affairs (sec. 36)Formulation of govt policy (sec. 35) or effective conduct of public affairs (sec. 36) Statistical information “used to provide informed background” to govt policy-making to be released post-decisionStatistical information “used to provide informed background” to govt policy-making to be released post-decision Under sec. 35, regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used.Under sec. 35, regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used.