Comparative law study on public access to government information presented to Dutch Parliament
On 17 October, the Dutch Minister of the Interior and Kingdom Relations presented the research report ‘Disclosure of government information. A comparative law study of legislation in Sweden, the UK, Germany, France, Slovenia and Estonia’ to the House of Representatives and the Senate. The report was written by researchers from Leiden University.
The study was conducted in response to a commitment made during the plenary discussion of the Wet open overheid (‘Woo’, Open Government Act) in the Senate in 2021. The purpose of the study was to conduct an international comparative law study of disclosure laws in other countries, so that the Netherlands can learn from them, and to possibly adjust parts in (the functioning of) the Dutch disclosure system. Both to improve access to government information and practicability for administrative bodies.
For each of the countries investigated, the report (in Dutch, with a summary in English) looked in particular at the following aspects: principles of the right to public information, the scope of the legislation, the scope of the right to information, whether information is actively disclosed, the way in which information requests are handled and the decision deadlines used in doing so, the grounds for exceptions, the limitations of (the scope of) information requests as well as the way in which compliance with the rules is ensured (supervision, enforcement and legal protection). Finally, the report provides several considerations on the extent to which the observed differences between countries could be of benefit to the Netherlands.
In the accompanying letter (in Dutch), the Minister called the report a ‘very thorough and useful analysis of the different legal systems and practice compared to the situation in the Netherlands’. The research was conducted by Annemarie Drahmann (Leiden University), Louis Honée (Leiden University), and Ola al Khatib (Utrecht University).
In the Netherlands, the statutory deadline for information requests is only four weeks. This deadline is not met in practice. With regard to these processing times, the Minister draws particular attention to the following findings of the report:
- The Netherlands does not appear to receive more requests for information than the countries investigated and in all countries an increase in the number of requests is observed.
- Most countries apply a decision period of four weeks. Except in France, meeting these deadlines does not seem problematic in the other countries investigated. However, a few countries have regulations that limit the scope of information requests. In the UK, for example, a maximum of 24 working hours is used to find and put together the requested information.
- The Netherlands has a broad concept of what a document is, which includes not only letters and notes, but also e-mails and even Signal and Whatsapp messages. Looking at the other countries investigated, the UK also has a broad concept of what a document is. In Sweden, however, the right of access is limited to 'official documents'. A document is 'official' if it is received or prepared by the administrative body. This also includes e-mail or work-related chat messages. Internal messages, however, are not considered sent or received. Memoranda, drafts and presentations, which are used as a reminder or to present information already present, never become official documents, unless they should be archived on the basis of their value as heritage, for public access or for the functioning of the state.
It is almost impossible to establish a clear causal link between certain choices in legislation and processing times for information requests. Despite this fact, the Minister will consider whether the considerations put forward by the researchers can contribute to improving the disclosure of government information as well as feasibility for administrative bodies. To this end, it will inform the House of Representatives and the Senate in more detail in the first half of 2023. It will also (partly on the advice of the researchers) initiate a comparative (international) information management study.