The Open Government Act (“Woo”) is to replace the Government Information (Public Access) Act (“Wob”). The Woo initiative proposal was passed in the Dutch House of Representatives in 2016; see our earlier Stibbeblog. However, the impact analysis that followed showed that the Woo as proposed was potentially impracticable for local governments. This led to amendments to the bill, which was passed by the House of Representatives on 26 January 2021.
The preliminary examination by the Senate Committee took place on 6 April 2021. The bill was passed by the Senate on 5 October 2021. The Woo might enter into force in 2022, except for the active disclosure obligation. That regime will take effect in phases on a later to-be-determined date.
What is clear is that the need for better access to government information remains as topical as ever, also demonstrated by the recent childcare allowance affair. Therefore, it is time for an update. In this blog we discuss – in FAQ form – the main changes that the Woo brings in comparison to the Wob.
I. What is the scope of the Woo?
The Wob applies to administrative bodies such as ministries, municipalities, provinces, water boards and public law organisations. The Woo extends the scope of the Act. Pursuant to Article 2.2, the provisions of the Woo also apply to the Senate and House of Representatives, the Council of the Judiciary and the Board of Representatives, parts of the Council of State, the Court of Audit, the National Ombudsman and boards of public bodies. In 2016, the bill contained a possibility to extend the scope of the Woo to the semi-public sector by Decree. This possibility has been removed in the current bill.
When the Woo enters into force, the scope of the disclosure regime will therefore be extended.
II. What changes are made in regards to the active disclosure obligation?
The Wob grants administrative bodies a large degree of freedom to disclose documents as they see fit (known as ‘active disclosure’). This will change when the Woo enters into force. Article 3.3 of the Woo defines different categories: if information falls under one of these categories, the bodies must, in principle, disclose this information on their own initiative. The purpose of specifying the active disclosure obligation is to bring about a culture change among administrative bodies, which will now begin to disclose more information on their own initiative instead of on request.
This information must also be accessible to everyone. Article 3.3b of the Woo therefore stipulates that the documents subject to the active disclosure obligation must be made accessible via a digital platform known as PLOOI. PLOOI is a central online location for all government information, regardless of where it is published on the Internet.
Based on the Woo, bodies will therefore have to publish more documents on their own initiative and make these documents accessible via a digital infrastructure accessible to everyone.
III. What changes are made in regards to the passive disclosure obligation?
Whereas the Wob focuses on the passive disclosure obligation (i.e. the initiative for disclosure lies with the requester), the Woo focuses equally on the active and passive disclosure of documents. The Woo does not change the requirements for passive disclosure: just as under the Wob, anyone can submit a request to an administrative authority to disclose certain information without having to demonstrate an interest.
Article 4.1(2) of the Woo does offer the additional option of submitting a request electronically. In addition, procedural differences between requests for environmental information and requests for other information have been abolished as far as possible through the Woo. For example, the timeframe for responding to a request for environmental information is considered the same as that for any other request for information. In addition, for each request, the government has to provide information about the way in which the information was obtained. Under the Wob, this is only required for requests for the provision of certain environmental information.
IV. How are interested parties protected?
Administrative bodies obtain large amounts of information from third parties when establishing, implementing and monitoring policies, laws and regulations. The disclosure of this information may violate the interests of third parties. Under the Wob, those whose interests are directly affected have the opportunity to submit a view to prevent the disclosure of information by an administrative body. It is usually also necessary to submit a request to a preliminary relief judge, in parallel with the submission of the view, in order to prevent disclosure of the information. The mere submission of such a request does not suspend publication under the Wob. This legal protection applies to both active and passive disclosure.
For disclosure under the Woo, the same procedure is available as under the Wob, based on Article 4:8 of the General Administrative Law Act in conjunction with Article 4.4(3) of the Woo. Unlike the Wob, the Woo provides that in the event of passive disclosure, disclosure is automatically suspended upon submission of a request for a preliminary relief. Pursuant to subsection 5 of section 4.4, the suspension runs until the preliminary relief judge has ruled or the request has been withdrawn.
V. When does disclosure of information remain withheld?
The disclosure of information is withheld if there are grounds for refusal. The Wob distinguishes absolute and relative grounds for refusal. If certain information falls under an absolute ground for refusal, it will not, in principle, be disclosed. If certain information falls under a relative ground for refusal, the public interest in the disclosure of that information is weighed against the interest that the specific ground for refusal aims to protect. This weighing of interests determines whether disclosure should be withheld or not. The Woo retains this distinction between absolute and relative grounds for refusal.
Nevertheless, the Woo does introduce changes in this regard. Below, we will discuss what we consider the most striking changes with regards to the grounds for refusal.
For example, the Woo introduces new grounds for refusal in section 5.1. Information may not be disclosed if this is not in proportion to the protection of the environment to which the information relates. This could include information about reproduction areas and the habitat of rare species. Another new feature of the Woo is that the proper functioning of the State, of other public-law organisations, or of administrative bodies will be taken into account when weighing up the interests. In addition, the scope of the ground for refusal “the security of persons and companies and the prevention of sabotage” (section 5.1(2)(h) Woo) is extended to any type of information, while the ground for refusal under the Wob only applies to environmental information. In addition, the ground for refusal in the Wob that relates to the prevention of disproportionate advantage or disadvantage is adjusted in the Woo. The disproportionate advantage provision will be abolished entirely, and only in exceptional cases in which no environmental information is involved will it be possible to refrain from disclosing information in the event of disproportionate disadvantage. In addition, this ground for refusal can no longer be used as a ‘safety net’ as the disproportionate disadvantage may not extend to interests that are already included in the other grounds for refusal. It is still unclear whether damage to reputation will be protected through this ground for refusal.
VI. What disclosure regime applies to corporate information?
In protecting business and manufacturing data, a distinction should be made between different types of business data, namely (i) business and manufacturing data that has been confidentially disclosed to the government, (ii) business and manufacturing data that relates to environmental information and has been confidentially disclosed to the government, (iii) competitively sensitive business and manufacturing data that has not been left in confidence to the government, and (iv) business and manufacturing data on environmental information that relates to emissions into the environment.
How are the categories defined?
In order to determine which regime applies, it is first necessary to determine under which category the data concerned falls. Neither the Woo nor the Wob define the terms “business and manufacturing information“, “confidential” or “emissions“. We therefore base the frameworks for these terms on case law on the Wob.
- Step 1: Are the data ‘business and manufacturing data’?
Established case law under the Wob shows that the term ‘business and manufacturing information’ is interpreted restrictively. This is only the case if and insofar as “from the data, interesting facts can be read or derived with regard to the technical management or the production process or with regard to the sales of the products or the circle of customers and suppliers.” See, for example, the Division’s ruling of 17 July 2002, in which the data pertaining to the examination results of driving schools were not considered business data.
In addition, exclusively financial data of business operations may under some circumstances relate to business and manufacturing data. In this case the topicality of the financial data is relevant. See the Division’s ruling of 17 July 2013 for this.
If the information meets these criteria, it can then be determined which specific category applies.
- Step 2: Does the company and production data concern ‘environmental information relating to emissions into the environment’?
The concept of emission is defined in article 1.1 of the Environmental Management Act as “substances, vibrations, heat, or noise emitted directly or indirectly from a source into the air, water or soil.” After (recent) rulings of the European Court, the interpretation of this term has been broadened. Emission data should not only include information on actual emissions, but also data on the environmental impact of emissions and data that allow the public to verify the assessment of actual or foreseeable emissions that underlie decision-making.
If business and manufacturing data concern environmental information that relates to emissions, category iv applies. If not, the following steps must be followed.
- Step 3: Have the business and manufacturing records been provided to the government ‘confidentially’?
The question of confidentiality is assessed according to the information’s content. The mere fact that information is labeled ‘confidential’ by the provider does not mean that its confidentiality is automatically assumed; vice versa, the absence of such an indication does not mean that there can be no question of confidentiality. The decisive factor is whether the company may reasonably consider its contact with the government to be confidential.
If a company cannot reasonably regard the communication as confidential, then the category iii regime applies. If a company can reasonably consider the communication to be confidential, then it must be determined whether the data relates to environmental information.
- Step 4: Does the business and manufacturing data provided in confidence contain ‘environmental information’?
For the definition of ‘environmental information’, the Woo (as with the Wob) refers to Article 19.1a of the Environmental Management Act.
Business and manufacturing data that relate to environmental information and have been provided to the government in confidence fall under category ii. If the data do not relate to environmental information, then the regime of category i applies.
To disclose or not to disclose information?
i. Business and manufacturing data provided to the government in confidence.
In 2016, the Woo proposal would have had a major impact on disclosure of this category of data. These business and manufacturing data could be disclosed if the interest in disclosure outweighed the business interest, as there would be a relative (rather than absolute) ground for refusal. In the recently adopted proposal, as in the Wob, this ground has become an absolute ground for refusal that does not require a weighing of interests. Section 5.1 subsection 1(c) of the Woo shows that data provided to the government in confidence shall not be disclosed, subject to the exceptions to the grounds for refusal.
ii. Business and manufacturing data that relates to environmental information and has been provided to the government in confidence.
However, the regime described above in i) does not apply to business and manufacturing data that relates to environmental information. In that case, a weighing of interests will take place, even if such data has been provided in confidence. For more detail on this weighing of interests, see iii). This is unchanged from the Wob. This weighing of interests follows from the Aarhus Convention.
iii. Competitively sensitive business and manufacturing data that have not been disclosed to the government in confidence.
If a Woo request involves competitively sensitive business or manufacturing data that has not been disclosed to the government in confidence, then a weighing of interests takes place (Section 5.1(2)(f) Woo). It may be possible to avoid this weighing of interests by declaring all communications between a company and the government to be confidential, but as mentioned before, this by itself may not be sufficient to guarantee confidential status. Under the Wob, this category of data falls under the ground for refusal of disproportionate advantage or disadvantage, whereby a weighing of interests also precedes disclosure. The difference with the Woo is that, under the Wob, environmental information that has not been provided to the government in confidence does not fall within the scope of the ground for refusal. Under the Woo, however, the interests of the parties concerned are weighed up before such information is disclosed.
iv. Business and manufacturing data containing environmental information relating to emissions.
As it is not the case under the Wob, no grounds for refusal apply to this category of data (section 5.1, subsection 7, Woo). It will be difficult to prevent this type of information from being disclosed.
VII. Are there exceptions to the grounds for refusal that allow information to still be disclosed?
Under the Woo there are certain cases in which the government can still disclose information, despite the fact that a situation falls under an absolute or relative ground for refusal. Under the Woo, an administrative authority may disclose information on its own initiative if a compelling public interest, such as public security, public health, the environment or the protection of the democratic legal order requires so in the specific case (Article 3.4 Woo). The Woo also designates some categories of requesters as special, which means that a different disclosure regime policy applies. If a requester has a special interest, or the disclosure serves the purpose of historical, statistical, scientific or journalistic research, then the interests involved in the disclosure are weighed differently (Article 5.5, Article 5.7 Woo). In these situations, information can be disclosed that would normally fall under the absolute and relative grounds for refusal. This is a change with respect to the Wob.
Finally, we note that a number of other new aspects are introduced in the Woo. For example, the Woo includes an anti-abuse provision. If the requester clearly has an objective other than obtaining public information, or if the request clearly does not concern administrative matters, an administrative body may decide not to deal with the request. In addition, a permanent “Public Access and Information Management Advisory Board” will be appointed by Royal Decree (Chapter 7 of the Woo). The tasks of the Advisory Board include advising on legislation regarding openness and playing a mediating role in disputes between administrative bodies and complainants.
We started this blog with the observation that the need for better access to government information remains as topical as ever. However, recent legislative amendments have curtailed the most controversial changes that the Woo would initially cause. Nevertheless, we believe that the Woo will result in a more transparent government due to the extended scope and the expanded active disclosure obligation.
You can find a Dutch translation of this short read here
This is a blog in the “FAQ” series. You can find an overview of all the blogs in this series here.