Draft Council of Europe convention on access to official documents
- Parliamentary Assembly
- Assembly debate on 3 October 2008
(36th Sitting) (see Doc.
11698, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr De Vries). Text
adopted by the Assembly on 3 October 2008 (36th Sitting).
1. The Parliamentary
Assembly welcomes the draft Council of Europe convention on access
to official documents as the first binding international legal instrument
which recognises the general right of access to official documents
held by public authorities.
2. The Assembly fully shares the conviction expressed in the
explanatory report to the draft convention which emphasises: “Transparency
of public authorities is a key feature of good governance and an
indicator of whether or not a society is genuinely democratic and
pluralist, opposed to all forms of corruption, capable of criticising
those who govern it, and open to enlightened participation of citizens
in matters of public interest. The right of access to official documents
is also essential to the self-development of people and to the exercise of
fundamental human rights.”
3. Effective access depends on the nature and extent of the exemptions
permitted, which must be carefully circumscribed and narrowly construed
and applied. Practical impediments to access to official documents, including
time factors, cost, or any other burdens must also be addressed.
The Assembly is satisfied that the draft convention recognises all
of these requirements.
4. Whilst admitting that there is little value in an overly ambitious
text that states are either unable or unwilling to sign or adhere
to, the Assembly stresses that the draft convention should not fall
short of reasonable requirements in a democratic society, bearing
in mind that many member states of the Council of Europe have already
provided a legal basis for access to official documents.
5. The Assembly considers that the definition of “public authorities”
in the draft convention is too restrictive in that, apart from the
government, it includes only the administrative functions of legislative
and judicial bodies and of natural and legal persons. Since one
of the key purposes of the right of access to information is to
ensure accountability, it is important that as many bodies as possible,
in so far as they operate in the public sphere, be encompassed by
6. The Assembly subscribes to the European Court of Human Rights’
observation that information is “a perishable commodity and to delay
its publication, even for a short period, may well deprive it of
all its value and interest”. It therefore recommends that a time
limit for the handling of requests be included in the convention.
7. The Assembly welcomes the provision foreseen in Article 8
of the draft convention setting out the right to a review of decisions
by a court or other independent and impartial body established by
law against the refusal of access to a document, expressly or impliedly,
in whole or in part. But the scope of this provision needs further
clarification and the review body should be granted the power to
order disclosure of the requested official document.
8. Since an effective right of access requires a delicate balance
of many individual components, and the removal of even one of them
could upset the balance and undermine this right, the Assembly considers
that no reservations should be allowed to the convention.
The Assembly considers that the current draft has some shortcomings
which need to be resolved in order not to miss the opportunity to
enshrine modern standards for access to information in what will
be the first binding international legal instrument in this field.
The Assembly finds the issues raised sufficiently important to recommend
to the Committee of Ministers that it send the draft back to the
Steering Committee for Human Rights (CDDH) for further consideration
with respect to:
the definition of “public authorities” to include a wider range
of activities of these authorities and hence widening the scope
of the information made available;
9.2 including a time limit on the handling of requests;
9.3 clarifying and strengthening the review process provided
in Article 8.1.
The Assembly further recommends to the Committee of Ministers
that the draft convention be amended as follows:
10.1 in Article 1, before paragraph
1, add a new paragraph as follows: “This convention safeguards the
right of access to official documents held by public bodies. All
official documents are in principle public and can be withheld subject
only to the protection of other rights and legitimate interests”;
in Article 9, to delete sub-paragraph (a) and to add a
new paragraph after “exercised”, as follows: “They shall also take
appropriate measures to ensure that public authorities:
[b] [to become new (a)]
[c] [to become new (b)]
[d] [to become new (c)]”;
10.3 to add a new article after Article 20, reading as follows:
“No reservations may be made with regard to this convention.”
11. In the future, the Assembly invites the Committee of Ministers
to solicit its opinion at an earlier stage of the procedure leading
to the adoption of draft conventions in order to allow for a true
dialogue without unduly slowing down the elaboration of new conventions.
12. The Assembly invites the Committee of Ministers to inform
it of action it has taken in response to this opinion.