Transparency Regulation

Our Public, Regulatory & Investigations team discusses the scope of transparency legislation within the European Union, which gives a right of public access to certain documents held by certain EU institutions, bodies, offices and agencies.

Public sector bodies in Ireland will already be familiar with the right of access under the Freedom of Information Act 2014. However, if interacting with EU institutions, it is important to also be aware of the EU Transparency Regulation[1].

Like the FOI regime, the Transparency Regulation is concerned with transparency and openness, but focuses on EU-level decision-making. It gives effect to the right of access set out in Article 42 of the Charter of Fundamental Rights of the EU:

“Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.”

Irish public sector bodies regularly interact with EU institutions – whether through funding applications, policy coordination, for regulatory compliance purposes, or participation in EU decision-making. The level of interaction is only likely to grow, as the EU continues to establish regulatory frameworks involving regulatory bodies at both EU and domestic level.

Where public sector bodies provide documents to EU institutions, those documents may fall within the scope of the Transparency Regulation. Therefore, it is important to understand its provision. Doing so allows steps to be taken to highlight sensitive information and, where possible and appropriate under the Regulation, protect it from disclosure.

Objectives and scope of the Transparency Regulation

The Transparency Regulation applies to certain EU institutions, bodies, offices and agencies (EU institutions). These range in size and function, from the European Commission and Parliament to smaller, more specialised parts of the EU framework, such as the European Data Protection Board (EDPB). Under the regime, EU citizens, and any natural or legal person residing or having its registered office in a Member State, can apply to access “documents” held by the relevant EU institution. Access may also be granted to a person outside the EU.

The “documents” covered are broadly defined as:

“Any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.”

The Regulation applies to:

“all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.”

This would therefore include documents shared with an EU institution by third parties, including Irish public sector bodies.

Like the Irish FOI regime, the access request must be in writing and sufficiently precise to enable identification of the document(s). Similarly, if dealing with the request would create a disproportionate administrative burden, due to the size of the document or the number of documents, the institution must consult with the applicant to find a “fair solution”. This might involve narrowing the request’s scope.

Where requests relate to third-party documents, the relevant institution must consult the relevant third party for their views on whether any exceptions available under the Transparency Regulation apply, unless it is clear that the document shall or shall not be disclosed.

Access requests under the Transparency Regulation

Applicants request access directly from the relevant EU institution. The Transparency Regulation imposes a relatively short timeline of 15 working days for the institution to decide on the request. In exceptional circumstances, this timeline can be extended by a further 15 working days.

Where a request is denied, the applicant may request the EU institution to review its decision, by making a “confirmatory application”. If the original decision is upheld, the applicant can then make a complaint to the European Ombudsman who will determine if there has been compliance with the Transparency Regulation. Alternatively, the applicant can challenge the decision by way of annulment proceedings before the Court of Justice of the European Union (CJEU). The Regulation has generated a relatively significant amount of EU case law, which is considered by the Ombudsman where a complaint is made.

Impact of the Transparency Regulation on third parties

As outlined, documents exchanged between a relevant EU institution and a third party, including a Member State public body, may be disclosed under the Transparency Regulation. Ultimately, the EU institution must comply with requests made, subject to any relevant exceptions.

Third parties should therefore be aware that documents exchanged with an EU institution may be subject to the Transparency Regulation, and may be released on foot of a request.

A third party cannot veto disclosure of any documents. However, the EU institution should consult with the third party at the earliest possibility to obtain its views. Third parties can also raise a challenge before the General Court against an EU entity's decision to disclose a document.

Though the Transparency Regulation is broad in scope, there are exceptions that can justify an access request being denied.

Exceptions

The Transparency Regulation provides several exceptions to disclosure. Requests must be refused if disclosure would undermine certain areas of significant public interest. These are:

• Public security
• Defence and military matters
• International relations, and
• The financial, monetary or economic policy of the EU or a Member State

Requests must also be refused if disclosure would undermine the protection of individuals’ privacy and integrity, in particular under the GDPR.

EU case law has found that an EU institution must show that there is a “reasonably foreseeable” risk that disclosure would undermine one or more of the above-mentioned public interests, as opposed to a hypothetical scenario.

The Transparency Regulation provides for further exceptions. However, these are not absolute. Access may still be granted if there is an overriding public interest in disclosure. Refusal will only be justified where the public interest in disclosure does not outweigh any of these exceptions. These exceptions apply where disclosure would undermine the protection of:

1. The purpose of inspections, investigations and audits
2. Commercial interests, including intellectual property
3. Court proceedings and legal advice, and
4. The EU entity’s decision-making process

Conclusion

In summary, organisations should be mindful that any documents shared with EU institutions may be disclosable under the EU Transparency Regulation. If they are consulted on a request that relates to their documents, affected organisations should carefully consider their views on disclosure. They should also consider the applicable exceptions and case law, and engage with the relevant EU institution.

For more information on navigating the Regulation, contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] (Regulation 1049/2001)