With regard to information provision, the Dutch government is trampling all over civil rights, says Aline Klingenberg, a member of the Administrative Law and Public Administration Department of the Faculty of Law of the University of Groningen.
Far too little information is made public, and where the information is available the authorities often block it.
The situation is so critical that the constitution should be changed, thinks Klingenberg.
For a democracy to function properly, public access to government information is essential. There are more than enough ways to do this, states Klingenberg, with the internet in first place. However, municipalities and provinces do not make enough use of them. In addition, semi-governmental organizations such as supervisory authorities and subsidized institutions should also exercise more openness. In practice it’s a completely different story, in Klingenberg’s view. ‘Although the basic information is relatively accessible, the authorities should make much more information available about decision-making processes or policies, for example. And in straightforward language.’ Although citizens can request information by calling on the Government Information (Public Access) Act (WOB), these requests often become bogged down in complicated, long-term legal procedures.
The European Court of Human Rights (ECHR) is extremely clear on this point, however, claims Klingenberg: ‘This European Court has stated that the right to government information is a basic civil right. Refusal to provide information that is only available from the government can, according to the Court, be seen as a violation of the right to free speech. However, the right to information is not included in our constitution, although it certainly should be.’ The Franken Committee made a proposal to this end some years ago, but nothing has come of it.
In her PhD thesis, Klingenberg examined how official institutions in other European countries deal with public access. The openness in neighbouring countries is generally much better organized, is her conclusion. ‘Local authorities in Britain, for example, set out clearly how they have acquired their finances and what they are spent on. In the Netherlands that information is not easily accessible and in addition much more complicated.’
This is why Klingenberg is in favour of a recent idea of the GroenLinks parliamentary party. It wants to set up a public access watchdog. Several European countries already have similar, independent bodies to monitor the openness of government institutions. Klingenberg: ‘The Netherlands does not have such a watchdog. That wouldn’t be a problem if the attitude of government organizations towards public access was favourable. Sadly that is not the case. The only conclusion is that better control is needed.’
Such a body, according to Klingenberg, is primarily needed to provide information to both citizens and the authorities, for example about how the WOB works. Further, the body would perform the role of ombudsman in differences of opinion about openness.
The political party, which bases its views partly on research by Klingenberg, thinks that public access to government information in the Netherlands is badly organized. ‘There’s much more to it than a political statement about which you can have a different opinion’, is Klingenberg’s response. ‘It’s completely in line with legal decisions in international and national civil rights and human rights cases. The Netherlands will not be able to continue to avoid adapting the relevant laws.’
An important bone of contention in the debate on public access concerns the Government Information (Public Access) Act (WOB). Municipalities in particular are hindering public access, among other things by charging for processing WOB requests. One in ten municipalities does so already and the numbers are increasing. The charges are also increasing.
Klingenberg says that this is in direct contradiction of national and international case law. ‘In the first place, the court in the Hague has determined that municipalities may not charge for WOB requests’, explains Klingenberg. The judge in the Hague determined that honouring a WOB request is not a service but a duty. ‘Case law from the European Court of Human Rights is also crystal clear on this point’, continues Klingenberg.
Authorities who charge for releasing information are also acting in contravention of the treaty that the Council of Europe signed in 2009 at a conference for ministers of justice in Tromso in Norway. Incidentally, this treaty has not yet been signed by the Netherlands, but it states that the only costs that can be charged are for making photocopies and sending them by post.
Klingenberg: ‘It’s going to be difficult for the Netherlands to sign this treaty. The consequence will be a fundamental change to the WOB, which will also have to be extended to cover other governmental bodies as well as courts and the public prosecutor's office.’
The VNG (association of Netherlands municipalities) wants to appeal against the decision of the Hague court. Klingenberg regards this as ‘a rearguard action’. ‘It is remarkable that a club set up to guard the interests of municipalities is taking a position that clearly contravenes civil rights.’
Klingenberg waves aside the VNG’s argument that the costs would get out of hand if citizens were able to call on the WOB for every little thing. ‘Citizens hardly ever make use of the possibility. It’s mainly journalists who call on the Act.’
Aline Klingenberg LLM will be awarded a PhD this year for a thesis on administrative law norms for electronic governmental communication. Between 1989 and 1994 she studied Dutch Law at the University of Groningen, after which she went to work for the municipality of Leeuwarden. She worked there as a lawyer in the department of Law and Safety until 2001. In 2001, Aline Klingenberg joined the department of Administrative Law and Public Administration of the Faculty of Law.
More information: Aline Klingenberg
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