T-233/09 Access Info Europe v. Council: too much transparency?

The General Court's judgment was delivered on 22 March 2011, but the story is far from over, as the Council is likely to appeal to the Court of Justice.

The story

The core issue is quite simple: Access Info Europe, organisation based in Spain, requested access to a document of the Information Working Party of the Council. The document contained drafting proposals (or rather suggestions) presented by some delegations in order to "feed" the debate within the Working Party (ironically enough, the legislative proposal at issue was the proposal for a Regulation amending Regulation No 1409/2001 regarding public access to European Parliament, Council and Commission documents, i.e. the Regulation that the Council applied when dealing with the request concerned). The Council granted access to the document, excluding (nothing but) the identity of the delegations who submitted the proposals (in this regard, the Council referred to Article 4.3 of the Regulation No 1409/2001 that reads inter alia: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure"). Access Info Europe took that decision to the General Court and the General Court ruled that also the identity of the delegations should have been disclosed.

Where does transparency end?

The question that one might ask oneself (looking at the facts described above) is: wasn't the Council already very generous when it did not hesitate to disclose the full text of the proposals discussed within the Working Party? And more importantly: why should the identity of the authors of those text be necessary?
Clearly, transparency is an important principle of democracy. It serves as an instrument of control the public can excercise in relation to the functioning of the institutions of a State (or, as in this case, a state-like entity, i.e. the European Union). In my view, the Council's approach was fully in line with this: the public was given access to the documents discussed within that institution and thus received all the information necessary for it to understand in what direction the debate is moving and to try and influence the Council (or a Member State of their choice, or the Commission, or a Member of the European Parliament...) to alter that direction. Yes, if the public also knew who is behind a proposal, their pressure could be targeted better (they could go directly to the bad guy or even "hang" the bad guy publicly). But is that really necessary? And would that be a democratic debate? The democratic debate should primarily center around the arguments and should not focus on who puts the argument on the table (which might easly turn into an emotional war in which reasonable discussion is set aside).
And one more thing: the eventual author of the proposed legislative act will be the Council (together with the European Parliament). In other words, the "target" is known: the Council. What more do you need?

Side effects of transparency

It should also pointed out that many examples show that transparency is not always ideal. Regarding the infringments of the EU law, for instance, the European Commission sometimes takes advantage of the press in order to extert more pressure on the Member State concerned. The result: under the pressure, the Member State, although equipped with solid arguments, will many times give in and do what the Commission wants. Yet, the "objective truth" might sometimes be elsewhere.