Public access to government information

As of May 1, 2022, the era of the Open Government Act (“Wob”) has come to an end. After years of serving as the legislative framework for the right to government information, the Wob has been replaced as of May 1, 2022 by a new law, which entered into force under the name of the Open Government Act (‘Woo’).

The departure of the Wob will not cause the public in need of information too much heartache. Not infrequently the Wob proved in practice to be a legal “shield” behind which a closed government evaded or tried to evade public scrutiny. In administrative practice, the Wob has therefore not been able to fully live up to the promise of a transparent government. The courts have regularly had to confirm or enforce the citizen’s fundamental right to information in judgments.

Purpose of the de Woo

The Woo has an ambitious goal. The new regime is intended to initiate an open administrative culture and a more accessible government apparatus. To put this intention into practice, the Woo provides for several changes – of a more or less substantial nature – compared with the old regime (Wob). First of all, there is a shift in emphasis in the approach to government information; an active disclosure obligation will apply to a large group of information types. For types of information whose disclosure must be requested, the Woo procedure shows some innovations of a procedural and substantive nature. In addition, the Woo modifies on a number of points the assessment framework used by the administrative body to decide whether information should be disclosed and, if so, in what form. We discuss the most relevant changes below.

Starting point of the Woo: active disclosure

Under the Wob, the so-called Wob request was the focal point. The duty of disclosure only took shape if a request was made. Beyond that there was only a best-efforts obligation to disclose information of one’s own accord, compliance with which could not be enforced and which therefore left the administrative body free to decide at its own discretion. Article 3.3 of the Woo does away with this when it comes to information belonging to one of the categories mentioned there. If an information type falls into one of these categories, the administrative authority must make the information public of its own accord.

In part, this relates to information that administrative bodies already tend to disclose, such as decisions of general application, generally binding regulations and administrative reports. However, the Woo goes further than is usual in current practice, for example by stipulating that draft decisions on which external advice has been requested must be made public, as must the external advice and the accompanying request for advice. Also of importance is that investigation reports about the performance of an administrative body’s duties will be subject to the active disclosure obligation. At least as valuable is the obligation to actively disclose a series of types of decisions, such as, and perhaps most important for practice, the environmental permit.

The information must be sufficiently accessible to the public. Article 3.3 of the Woo regulates that the relevant documents are made accessible through an online platform. The platform, called PLOOI, is a central location where all public government information should be able to be consulted by the public.

With this duty of active disclosure, the Woo aims to set in motion a cultural change. Administrative bodies will have to keep track of information and organize it so that it is regularly made public.

Disclosure on request under the Woo

Anyone can request an administrative body to disclose information, without the requester having to declare an interest. This does not change with respect to the Wob.

The Woo brings the formalities concerning the submission of requests into line with the requirements of the digital age by explicitly providing that a request for information may be submitted electronically. Although submission by electronic form or email is now quite common, the Wob allowed administrative bodies to demand an old-fashioned written submission. Consequently, various administrative bodies continued to cling to a dated formality. The Woo will put an end to this.

If the administrative body intends to grant a request, the disclosure is automatically suspended if a third party wants to prevent it and requests a preliminary injunction against this from the administrative court. Pursuant to Section 4.4, subsection 5, of the Woo, the suspension lasts until the preliminary relief judge has ruled or the request has been withdrawn. Suspension was already common practice under the Wob, but was not prescribed by law. Because the internal coordination within the government bureaucracy sometimes failed, publication was sometimes a fait accompli. The new provision in Section 4.4 guarantees the protection of third parties more explicitly.

In addition, the procedural differences between requests for environmental information and other information in the Woo have been eliminated as far as possible. For example, the deadline for responding to an environmental information request has been made the same as the deadline for any other information request.

Grounds for refusal under the Woo

The Woo maintains most of the grounds for refusal from the Wob in the assessment framework for information requests.

To this, the Woo adds a new ground for refusal, according to which the administrative body can withhold the disclosure of information if the interest of doing so is outweighed by the protection of the environment. For example, it may be necessary not to share with the public information about reproduction areas and the habitat of rare species. The Woo also stipulates that disclosure can be refused if the interest of disclosure does not outweigh the proper functioning of the State, other public law bodies or administrative bodies. In practice, this new ground for refusal amounts to a statutory elaboration of existing case law, which has been applied for years in assessing whether the administration was right to refuse a request for information in order to prevent disproportionate harm to the government.

Under the Wob, the prevention of disproportionate harm or advantage was a ground for refusal so widely used that it degenerated into an all-purpose excuse for withholding information. The Woo is intended to change this. Information may no longer be refused on the grounds of disproportionate benefit to those involved or third parties, as was the case in the Wob. In addition, if the environment is not at stake, information may only be refused on the grounds of disproportionate harm to those involved or third parties in exceptional cases. The ground for refusal may therefore no longer be used as a “catch-all” provision.

In determining whether information should be refused because of competitive sensitivity, the Woo provides for a minor change. Environmental information that has not been provided to the government in confidence is no longer covered by this ground for refusal.

Abuse of the Woo

The Wob had its excesses. On the far side of the closed government, stood the private querulant or opportunist, who abused the Wob as a means to stall and harass the public administration with an endless influx of information requests. This was already a reason for the legislator to break the link between the Wob and the Late Payment and Appeal Act in 2016. The legislator added an anti-abuse provision in the Woo. If it is evident that the requester’s objective in the context of the Woo is other than to obtain public information, or if the request does not concern an administrative matter, the administrative body may decide to ignore the request altogether. Practice will have to show how administrative bodies will interpret this anti-abuse provision, and more specifically the “obviousness”.

Expectations of the Woo

It is not the intention to continue the existing Wob practice under a new banner. The legislator has a structural change in the handling of information in mind. Ultimately, a certain balance must be struck between transparency and the careful handling of other public objectives. The approach of the Woo seems realistic in this respect, by emphasizing shifts in emphasis and not striving for lofty reforms.

Within 5 years of the Woo’s entry into force, the Ministry of the Interior and Kingdom Relations will share an evaluation of the law with First and Second Chambers of the States General. This will have to show the extent to which the objectives of the new law have been achieved.

Information

This article was written by Ben van Nieuwaal and Daniël van Genderen of LVH Advocaten. If you have any questions about this article, please contact us at our general number +31 10 209 27 77.