Many municipalities are complaining about individual citizens abusing the Government Information (Public Access) Act (abbreviated in Dutch as ‘Wob’).
Minister of the Interior Plasterk wants the House of Representatives to take up a legislative bill this year designed to stop such abuse.
Yet local and regional governments should not expect too much from this initiative,
according to Aline Klingenberg, lecturer in Administrative Law at the University of Groningen, and Karlijn Spanninga, a recent graduate of the University, whose thesis examined abuse of the Wob.
‘Amending the Wob won't eliminate abuse of the Act. It's far more important that municipalities become more knowledgeable about the Wob.’
Anyone can file a Wob request, which, moreover, doesn’t cost anything. The requesting party doesn’t have to show, either, that it has a specific interest in the information requested. That’s the way it should be, too. Transparent government is essential in a democratic country operating under the rule of law, and maintaining such a democratic state is simply not free or always easy.
The ability to gather information from the government is part of democracy.
At first glance, Wob requests by, say, someone from the Philippines about the fines which municipalities have issued or about the trustworthiness of government investigators do not seem to have anything to do with the legitimate gathering of information, but are probably based on the silent hope of collecting penalty sums from the government. On the other hand, a Wob request by, for example, Greenpeace to the Province of Groningen to disclose all documents relating to the permit to construct a coal-fired power station is an entirely different story. However annoying (or expensive!) it may be to have to decide on a request such as Greenpeace’s, these requests cannot and should not be done away with.
The increase in the number of Wob requests is due in large part to the Penalty Payments (Failure to Give Timely Decisions) Act. Passed several years ago, this Act requires governments to pay penalties if they do not decide applications under the Wob in good time. Abolishing the requirement to pay such a penalty might help reduce Wob requests made for profit motives, such as the request by the Filipino mentioned above.
An anti-abuse provision would primarily help combat very clear cases of abuse, with the administrative body having discretion not to decide on Wob requests in exceptional cases. Parties whose requests have been rejected, however, will probably go to court next. Such a solution therefore will not bring quick, substantial relief to government authorities.
If we analyse recent court decisions in cases where there seems to have been abuse of the Wob, we see that courts tend to be lenient towards government bodies which have communicated properly. ‘Hidden’ Wob requests need not be construed as actual Wob requests. Still, it is very rare for courts to find that procedural rights under the Wob have been abused. Such a legal assumption is subject to strict requirements. An accumulation of factors, such as statistical data on the number of requests and a statement about the requesting party’s behaviour, must be well supported by the administrative body concerned (the municipality, for instance).
Ever since the Wob was introduced in the Netherlands, government agencies have been angry about it. Now that individual citizens have discovered the Wob, too, they sometimes file Wob requests for the wrong reasons. This abuse will not go away and public authorities shouldn't expect a change in the law to dramatically alter the situation. It seems far more important for government itself to increase its knowledge about the Wob, so that it will know whether it has to furnish the requested information or not. The burden imposed on local governments by the Wob will only be reduced if they look into more efficient (digital or other) work processes and digital information management, and, in particular, ways of actively furnishing information.
Aline Klingenberg is a lecturer in Administrative Law and Public Administration at the University of Groningen. She studied Dutch Law and gained her PhD in 2010 with a thesis on administrative‑law standards for electronic government communication.
Karlijn Spanninga gained her Master’s degree in Dutch Law in August 2013 with a thesis on abuse of the Wob.
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