[governance] RE: [bestbits] Principles (warning - long)

Sat Nov 1 15:33:03 EDT 2014

Erik and all,

I’ve always preferred the formulation of “open and inclusive”/”openness and inclusion”…

http://gurstein.wordpress.com/2012/04/18/does-inclusion-matter-for-open-government-the-answer-is-very-much-indeed/

M

From: JOSEFSSON Erik [mailto:erik.josefsson at europarl.europa.eu] 
Sent: Saturday, November 01, 2014 11:07 AM
To: michael gurstein; 'David Cake'; 'Best Bits'; governance at lists.igcaucus.org; forum at justnetcoalition.org
Subject: RE: [bestbits] Principles (warning - long)

The following is a chapter of a draft report on Ensuring utmost transparency -- Free Software and Open Standards under the Rules of Procedure of the European Parliament <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#The_Constitutional_Principle_of_Openness_under_European_Law> .

The RFC is closing in a week or so, feedback very welcome!.

If you want to tweet: https://twitter.com/glynmoody/status/523060059098849280

//Erik

The Constitutional Principle of Openness under European Law

Parliament has Imposed upon Itself a Commitment to Conduct its Activities with the Utmost Transparency

Rule 115 of the Rules of Procedure of the European Parliament provides that 

"1. Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union."

The European Parliament has been a champion in promoting not only openness of the legislative process and the access to legislative documents, but also that the EU Courts should accept that openness constitutes a general principle of EU law, and that the right to information is as such a fundamental human right. In Netherlands v Council, the European Parliament argued as follows: 

In this connection, the Parliament avers that, whilst it is competent for the institutions to adopt appropriate measures for their internal organization with a view to ensuring their sound operation and the proper conduct of their procedures, the principle of openness of the legislative process and the access to legislative documents entailed thereby constitute essential requirements of democracy and therefore cannot be treated as organizational matters purely internal to the institutions. In this context, the Parliament adverts to the democratic nature of the Community legal order. It maintains moreover that the requirement for openness constitutes a general principle common to the constitutional traditions of the Member States which is also enshrined in Community law. Lastly, it argues that the right to information, of which access to documents constitutes the corollary, is a fundamental human right recognized by various international instruments.

In its judgment, the Court stressed that the domestic legislation of most Member States enshrines, in a general manner, the public’s right of access to documents held by public authorities as a constitutional or legislative principle. The Court found that this trend "discloses a progressive affirmation of individuals’ right of access to documents held by public authorities" and that accordingly, the Council deemed it necessary to amend the rules governing its internal organisation, which had hitherto been based on the principle of confidentiality. The Court added that, "so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration". 

While dated, this analysis is still interesting for at least three reasons. First, the legal doctrine is divided as to whether or not it is possible to interpret the Netherlands v Council judgment as authority for the existence of a fundamental right of access to documents.[6] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-6>  Second, when interpreting Rule 115, the relevant legal question is whether or not internal rules of the institutions may confer a substantive legal right to access to documents, to information, and/or to data on EU citizens. Third, the Court clearly links the issue of public access to documents to the nascent principle of good administration. 

According to the case law of the Court, the purpose of the Community institutions’ internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals. 

Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal ”right to know” what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen”. In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens’ ”right to know” and to participate ”as closely as possible” in the decision-making process must therefore be found elsewhere. 

As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated. 

In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament’s involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.[7] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-7>  Not only has Parliament imposed upon itself that it shall ensure that its activities are conducted with the utmost transparency, but its actions shall also conform with the Principle of Openness enshrined in the Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). 

The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards ?

The first real step towards allowing the public a right of access to documents held by the Community institutions dates back to 7 February 1992 when the Member States signed the Final Act to the Maastricht Treaty.[8] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-8> . In Declaration No. 17 to that Act, the Member States pointed to the close connection between the transparency of the decision-making process and the democratic nature of the Community institutions. Nowadays, the principle of openness in European Union law has solid roots, as the very text of the Rule 115 makes clear, in the fundamental Treaties of the European Union. 

The Treaties

Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TEU) states that in the European Union decisions are to be taken as "openly as possible" and as closely as possible to the citizen. 

In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. 

It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"[9] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-9> , and the second was not considered to lay down an unconditional obligation, since its implementation was held to be dependent on the adoption of subsequent measures. [10] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-10>  

In a different strand of its case-law, the General Court has referred to the "principle of the right to information" [11] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-11> , and to the "principle of transparency" [12] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-12> , in support of a finding that the previous internal rules of access to documents of the institutions must be interpreted in the light of the "principle of the right to information" and the principle of proportionality. The issue has obviously divided the General Court, which has also stated: 

For the purpose of applying Article 4 of Regulation EC No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.[13] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-13> 

To date, no clear guidance on this issue has been provided by the Court. In Council v Hautala, the Court did not find it necessary to rule on "the existence of a principle of the right to information" in European Union law.[14] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-14>  

Based on this lack of clarity in the case-law of the EU Courts, in Pitsiorlas v Council and ECB, the ECB contested the very existence in EU law of a fundamental legal principle which provides for a general right of access to its documents and to those of the EU institutions. It argued that although arguments based on such a principle have been raised on numerous occasions before the EU judicature, none of the EU Courts has considered it appropriate to examine them. 

In its judgement, the General Court held that "even supposing that the right of access to the documents held by the Community public authorities, including the ECB, may be regarded as a fundamental right protected by the Community legal order as a general principle of law", the plea of illegality in respect of Article 23.3 of the ECB Rules of Procedure, based on the alleged infringement of such a principle, could not be upheld. The General Court pointed out that fundamental rights cannot be understood as ‘unfettered prerogatives’ and that it is ‘legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched" [15] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-15> . The General Court held that, as regards the right of access to documents, reasons related to the protection of the public interest or a private interest may legitimately restrict that right.[16] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-16>  

Be that as it may. As Advocate General Poiares Maduro has correctly pointed out, the fact remains that henceforth the existence of the right of access to documents of the institutions is no longer based on internal measures adopted by the institutions, with which they are bound to comply, or even on Regulation 1049/2001, but on a provision of constitutional import.[17] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-17>  The Court has in this regard clarified that the "principle of openness" stated in a general manner in the second paragraph of Article 1 TEU is "crystallised" by Regulation 1049/2001.[18] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-18>  An alleged infringement of the second paragraph of Article 1 TEU is therefore in the Court's view not distinct from a plea alleging a wrongful application of the exceptions referred to in Regulation No 1049/2001. 

The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty on the Functioning of the European Union, which states 

"In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible."

Charter of Fundamental Rights of the European Union

Similiarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (‘Charter of Fundamental Rights’) also acknowledges this right: 

‘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.’

Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001 thereby establish a right of access to documents of the institutions. In the context of the European Parliament documents, it should be noted that Article 4 of the Statute for Members of the European Parliament[19] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-19>  provides that documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure. As Advocate general Kokkot has noted, the documents relating to a legislative procedure which are in the possession of a rapporteur must in principle be regarded as being in the possession of the Parliament. It will at some point in time be necessary to decide whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future.[20] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-20>  

Moreover, Art. 10 TEU regarding the principle of democracy (especially Article 10(3), echoes the second paragraph of Article 1) and Article 15 TFEU, dealing with good governance, openness, transparency and access to documents. 

Article 10 in the European Convention of Human Rights

The development of the principle of openness in EU law has been accompanied by a parallell development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the ECHR merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion [21] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-21>  Similiarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information.[22] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-22>  

In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,[23] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-23> , the Court unanimously recalled, in its reasoning on admissibility, that the notion of “freedom to receive information” embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access”, in that the notion of “freedom to receive information” embraces a right of access to information.[24] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-24>  

In a concurring opinion, judges Sajó and Vučinić highlighted the general need to interpret Article 10 in conformity with developments in international law regarding freedom of information, which entails access to information held by public bodies referring, in particular, to Human Rights Committee, General Comment No. 34 [25] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-25> . 

The Human Rights Committee has in turn stressed both the proactive and the reactive dimensions of the freedom of expression and freedom of information. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source, and the date of production. As the Committee has observed in its General Comment No. 16, regarding Article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Paragraph 3 of the General Comment provides as follows: 

3.Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.

Moreover, to give effect to the right of access to information, States Parties should proactively put in the public domain government information of public interest. States parties should make every effort to ensure easy, prompt, effective, and practical access to such information. In regard to freedom of expression, the Committee has linked it with the developments in information and communication technologies: 

15. States Parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto. 

The principle of openness and the right of access to information are directed ‒ among other things ‒ at ensuring that decisions are taken as openly as possible and and closely as possible to the citizens, in other words, it is a basic democratic tenet, where citizens must see what happens within the institutions (which is one of the means through which accountability of the institutions and their agents is ensured) and the institutions have an obligation to at least listen to what citizens have to say (in other words, participation and representation of interests). [26] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-26> . 

Legislative Openness

Ever since the Treaty of Amsterdam the concept of "the legislative" has had a place in the language of the EU Treaties. Under the second subparagraph of Article 207(3) EC the Council was already required to define "the cases in which it is to be regarded as acting in its legislative capacity" to allow the right of access to documents under Article 255(1) EC to be exercised. 

In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the ‘legislative capacity’ of the Council, on the other. It has been argued that , this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency [27] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-27> . 

On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy. 

As the Advocate General correctly pointed out in Case C‑280/11 P Council of the European Union v Access Info Europe [28] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-28> : 

"’Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate. In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole."

In its judgment in Sweden and Turco v Council,[29] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-29>  the Court held that it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming from increased openness. It states that when the Council is acting in its legislative capacity, it is particularly relevant that openness be considered, given that it enables citizens to participate more closely in the decision-making process, guarantees that the administration enjoys greater legitimacy, and is more effective and more accountable to the citizen in a democratic system. 

The following Recitals in the Preamble to Regulation No 1049/2001 are relevant in this respect: 

"‘(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. 

(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union. 

(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent."

The Court has confirmed that the considerations of legislative openness are clearly of particular relevance where the Council is acting in its legislative capacity: "Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights".[30] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-30>  

The theoretical underpinnings of the Principle of Openness and of legislative openness has thus acquired a solid foundation in the Treaties and in the case-law of the court. However, due to the eternal tide wave and purported conflict between Openness and Efficiency, Parliament has in practice struggled to live up to the Principle of Openness by resorting to informal decision-making procedures. As Nikoleta Yordanova has correctly noted: [31] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-31>  

Traditionally, the parliamentary committees have offered important venues for political involvement of extra-parliamentary actors due to the openness and transparency of their meetings. In the past fifteen years, however, the EP has been resorting ever more often to informal decision-making, whereby the parliamentary decisions are not reached internally following deliberations and debate in committee and plenary but in secluded trilogue meetings of limited number of representatives of the three EU legislative institutions – the EP, the Council of Ministers and the European Commission. 

(...) 

The implications of the switch to an informal mode of legislating for representation in the EP are twofold – decreased input and, potentially also, output legitimacy. Specifically, the decrease in committee influence has curtailed the channels of representation of interest groups to affect decision-making, depriving them of an effective tool to monitor and shape the legislative process and outcomes by raising timely demands. A possible implication of this is diminished receptiveness of legislators to constituents’ interests. Moreover, the lack of transparency of the secluded inter-institutional meetings has limited the ability of constituents to monitor their representatives’ policy bargaining, positions and the concessions, and, consequently, to evaluate how responsive legislators are to their preferences and demands.

The Need for Lawmakers to Deliberate in Private

The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Convention’), which entered into force on 30 October 2001. The Convention is based on three ‘pillars’ – access to information, public participation, and access to justice. Its preamble includes the following recitals: 

‘Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, 

Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment, 

Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings’.

The second sentence of Article 2(2) allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of ‘public authority’, ‘when acting in a judicial or legislative capacity’. 

The Convention was approved on behalf of the European Community by Council Decision 2005/370, (3) the annex to which contains a declaration by the European Community (‘the Declaration’) which reads, in so far as relevant, as follows: 

‘In relation to Article 9 of the Aarhus Convention the European Community invites Parties to the Convention to take note of Article 2(2) and Article 6 of [the Directive]. These provisions give Member States of the European Community the possibility, in exceptional cases and under strictly specified conditions, to exclude certain institutions and bodies from the rules on review procedures in relation to decisions on requests for information. Therefore the ratification by the European Community of the Aarhus Convention encompasses any reservation by a Member State of the European Community to the extent that such a reservation is compatible with Article 2(2) and Article 6 of [the Directive].’

In ratifying the Convention on 20 May 2005, Sweden lodged a reservation which, in so far as is relevant, reads as follows: 

‘Sweden lodges a reservation in relation to Article 9.1 with regard to access to a review procedure before a court of law of decisions taken by the Parliament, the Government and Ministers on issues involving the release of official documents.’

In accordance with Directive 2003/4,[32] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-32>  public authorities must in principle be required to make environmental information held by or for them available to any applicant at his request. However, the Directive permits Member States to exclude public bodies acting in a legislative capacity from the definition of a ‘public authority’. In addition, access may be refused to certain types of document, or if disclosure would adversely affect the confidentiality of proceedings of authorities where such confidentiality is provided for by law. 

In her opinion in Flachglas Torgau, AG Sharpstone summarized the dilemma as follows:[33] <http://euwiki.org/Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament#cite_note-33>  

The performance of both judicial and legislative functions could be impaired if information of all kinds concerning each and every stage of the process – analysing the relevant issues and data, deriving conclusions from that analysis and formulating a final decision – could be demanded of right at all times by any member of the public. It seems reasonable to assume that considerations of that kind were in the minds of those who initially drafted the first of the instruments concerned and have remained, albeit implicitly, in the minds of those who have participated in the drafting of the subsequent instruments. Yet it is by no means desirable, nor would it appear consistent with the overall thrust of the Convention or the Directive, for legislative or judicial activity to take place in impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of law and democratic government, for both courts of law and legislative assemblies to operate in the presence of the public (or at least of the media as an intermediary) other than in wholly exceptional circumstances – and it is, moreover, generally accepted that such circumstances are more common in the course of judicial than of legislative activity. Other than in wholly exceptional circumstances, therefore, in neither case should decisions be taken on the basis of facts, or for reasons, which are concealed from citizens.

  _____  

From: bestbits-request at lists.bestbits.net [bestbits-request at lists.bestbits.net] on behalf of michael gurstein [gurstein at gmail.com]
Sent: Saturday 1 November 2014 18:42
To: 'David Cake'; 'Best Bits'; governance at lists.igcaucus.org; forum at justnetcoalition.org
Subject: RE: [bestbits] Principles (warning - long)

Coming in late and agreeing with my JNC colleagues I’ll add only a few points 

1.       “Openness”—I’ve discussed “openness” and its enemies in a rather lengthy series of blogposts and publications which I’m delighted to see being paralleled in a range of academic discussions on these issues

http://gurstein.wordpress.com/2011/07/03/are-the-open-data-warriors-fighting-for-robin-hood-or-the-sheriff-some-reflections-on-okcon-2011-and-the-emerging-data-divide/

The ideal that these nerdy revolutionaries are pursuing is not, as with previous generations—justice, freedom, democracy—rather it is “openness” as in Open Data, Open Information, Open Government. Precisely what is meant by “openness” is never (at least certainly not in the context of this conference) really defined in a form that an outsider could grapple with (and perhaps critique).  Rather it was a pervasive and animating good intention—a grail to be pursued by warriors off on a joust with various governmental dragons. Their armaments in this instance (and to an outsider many of them are magical indeed) are technical skills and zeal sufficient to slay any bureaucrat or resistant politician’s rationalizations and resistances to being “open”—i.e. not turning their information treasure chests into universally accessible nodes in a seamless global datascape.

If I seem a bit skeptical/cynical – less than true believing – its not because I don’t believe in this goal of “openness” (who could be churlish enough to support things that are closed—closed systems, closed doors, closed minds—you get the picture), its just that I see a huge disconnect between the idealism and the passionate belief in the rightness of their cause and the profound failure to have any clear idea of what precisely that cause is and where it is likely to take them (and us) in the very near future.

http://gurstein.wordpress.com/2010/12/01/the-idrc-and-%E2%80%9Copen-development%E2%80%9D-ict4d-by-and-for-the-new-middle-class/

It is hard (from this paper) to see how a commitment to “open development” or “open ICT4D” is much more than a commitment to further enabling the (already) enabled and empowering the (already) empowered.

White Noise: On the Limits of Openness (Living Book Mix): Gary Hall 

http://www.livingbooksaboutlife.org/books/Open_science/Introduction

2.       Transparency

Thanks for your elaboration on the notion of “transparency and MSism”, it is quite useful both for what it includes but rather more interestingly for what is not included.  

As I’m sure you know the notion of “transparency” is generally yoked with the notion of “accountability”.  This isn’t simply for catch phrase purposes.  “Transparency and accountability” are linked together because one is necessary for and supportive of the other. 

To have accountability you need to have transparency and the primary function of transparency is to lead to or enable accountability.  

The fact that you almost completely omit any reference to accountability in your exposition and give no clear indication of how “transparency” as you present it is actually linked to any structures of “accountability” is fatally indicative of a fundamental flaw in the approach to MSism you are presenting.  It is great if MS process are fully transparent.  But so what, for whom or why does it matter if I or anyone knows how decisions are made if they are being made by unaccountable (MS) elites/actors or through unaccountable non-democratic (anti-democratic) processes. 

Democracy, at least according to any document I’ve ever seen, is fundamentally about “accountability”—accountability of decision makers to those on whose behalf decisions are being, accountability to the broad public interest (rather than individual private interests—ever hear about conflict of interest laws), accountability to laws determining formal processes of decision making within democratic frameworks. “Transparency” is one of the necessary tools for achieving this “accountability”… a tool towards accountability not an end in itself, which in practice would be and is a pointless and wasteful exercise of attempting to hide in plain sight.

Transparency without accountability in a system of governance may quite correctly describe your experience of MSism in ICANN (from many reports this is quite accurate) and unfortunately may apply to many current formally democratic systems of governance but is this a “principle” on which you want to build your MSist governance sandcastle.

3.       Consensus 

My JNC colleagues have I think quite correctly pointed to the absurdity of “consensus” as a governance principle.  As they have pointed out such consensus is impossible in the real (policy) world and particularly where allocative decisions need to be made (where there are winners and losers).  Rather than suggest what is in effect a procedural/technical aspect of decision making (there are an almost infinite number of ways of arriving at decisions including of course “consensus”) I would have thought it perhaps more appropriate to agree on the principle that the outcome of the decision making processes should be decisions which optimize the public good.  Unfortunately your “consensus principle” is a clear attempt to hard wire into Internet (and other?) decision making a process whose outcome inevitably and necessarily must be the optimization of private (stakeholder) interests.

M  

From: bestbits-request at lists.bestbits.net [mailto:bestbits-request at lists.bestbits.net] On Behalf Of David Cake
Sent: Saturday, November 01, 2014 3:22 AM
To: Best Bits
Subject: [bestbits] Principles (warning - long)

            So, Michael Gurstein challenges MSism proponents to describe its principles (Michael and JNC having generally taken the opposite tack, having principles aplenty but a lot of vagueness on practical/operational detail as to how those principles might be made into a practical transnational organisation). 

            And I think it is worth doing to make a few points that I think clarify the debate. Sorry though, it is a long one. 

            So, I will have a first pass at starting a discussion on the principles of MSism as we know it. These are just my thoughts, and I'm a relative latecomer to MS processes (having only been involved since 2009), and my experience is largely restricted to ICANN, so it is very likely that many of my assumptions are wrong

            The first is, that I think multi-stakeholder is a poor name for what we generally refer to as MS in the Internet governance context. Because having multiple stakeholders is an important characteristic, but certainly not the only, or perhaps primary, one. Multi-stakeholder of course serves well to highlight the difference between MS governance and multi-lateral forms (which really have only states as full participants, other stakeholders playing secondary roles), but calling ICANN, RIRs, etc multi-stakeholder obscures other significant factors, and so allows the confusion (notable in much JNC rhetoric) between open MS forms such as ICANN and closed forms such as WEF. 

            So, one principle of MS governance that I think most CS participants in MS would agree on is openness to participation. ICANN, IGF, etc are open to effectively anyone who wishes to participate. 

            I would argue that this principle of openness is more important than multi-stakeholderism per se - MS governance fora with formal stakeholders (like ICANN) would be regarded by many as the descendants of fora like the IETF that have no formal multi-stakeholder commitments, but that simply allow participation by anyone, regardless of their stakeholder affiliation. And this distinguishes such fora sharply from fora like the WEF, which are not open, and are rather strongly gatekeepered. I, for one, feel that the MSism I support has far more in common with the IETF etc than with WEF, because the broad openness of the process is an important principle, essential for its legitimacy and proper functioning. And of course it is not just private sector fora like WEF that have strict gatekeeping on participation, it is also multi-lateral fora such as the ITU. Whether the gatekeeper is government or private sector, both restrict the ability of CS and the broader populace to participate in their processes. 

            I note that while the JNC certainly wants to broaden participation, openness does not appear to be a principle - in fact, a large proportion of JNC rhetoric is specifically critical of the inclusion of commercial operators, so JNC would appear to be opposed to openness as a principle per se. 

            There are, of course, barriers to entry such as time to master the sometimes dense jargon, language barriers to non-English speakers, and travel to physical meetings, but one principle I would hope that MS proponents and JNC members can agree on is that while these practical barriers are non-trivial to overcome, it should be a goal of all such organisations to mitigate these effects. ICANN, for example, does simultaneous translation of many sessions, offers remote participation for almost all sessions, etc. 

            Transparency is another important principle. Those of us used to operating in environments such as ICANN, IETF, etc are used to a quite high degree of transparency in its day to day operation, and I certainly think this is a principle most of us would agree on. This broadens access to decision making by those who are not able to fully directly participate, and serves as a vital part of the accountability mechanisms - as a participant, any word I say is something I might be called on to justify, and the positions I advocate are very open to those I claim to represent (in my case, the members of the organisation I chair and represent). The vast majority of ICANN related meetings I participate in are recorded, transcribed, and made publicly available - some also translated into multiple languages. This level of transparency should be the norm. 

            And, of course, this is one of the contrasting distinctions with multli-lateral fora like the ITU, or multi-nation trade negotiations. The ITU is at least gradually changing from its culture of secrecy and restriction to a more open one, but this is a very recent and as yet fairly tentative change. And trade negotiations like TTTA and TTIP are becoming increasingly, obsessively, secretive and restricted, even between democratic nations - indeed, this secrecy is such that it clearly undermines democracy, for example in many nations elected legislators are not given access to treaty negotiation text. 

            Now, I am sure that JNC members are opposed to the excesses of non-transparency such as the TPPA, but it isn't clear to what extent this is a high priority for the JNC, considering some members past support for the ITU in its more closed era, etc. 

            It is, of course, worth noting that at times considerations such as individual privacy and security must occasionally demand processes that are less transparent (such as maintaining the privacy of individuals involved in selection processes etc), but the principle is that privacy should be a default. 

            It is also worth noting that these two principles, openness and transparency, are closely tied. Admitting stakeholders with a strong interest in the outcome of proceedings (such as commercial operators) is acceptable (to me, anyway) if they must act in a transparent, on the record, manner, advocating the value of their ideas openly, rather than privately lobbying for them. History has shown very strongly that a process that is both closed and secret is very amenable to indirect involvement of commercial operators via lobbying. and that even when it is not so secret, but closed to permit only government participation, this still happens. And of course democratic nations are, if anything, often even more susceptible to private lobbying than non-democratic ones. It is also the case that if effectively anyone is able to participate in decision making, then opposing transparency is somewhat of a losing proposition anyway (anyone who wants to know can participate), but it is still important to commit to it as a positive value. 

            And, of course, there is the principe of a commitment to consensus decision making. This is an essential principle of MSism to me. A commitment to consensus is a strong mechanism to encourage broad consideration of a wide range of viewpoints and criticisms. Policy that emerges from MS processes is certainly not perfect, but *absolutely terrible* policy seldom makes it through the process, which does not seem to be the case for IG related policy (or most policy, really) that makes it through elected legislatures.

It is also worth noting that there are a great many subtleties in the exact definition of consensus used (ICANN identifies at least 5 within its processes, and there are several more  being used in the IG space), and some may be more practical or desirable than others. 

            And the JNC seems relatively hostile to consensus, noting that commercial entities have significant ability to hold back policy that they dislike, etc. and advocating strongly for majority voting mechanisms. The JNC would seem to strongly advocate majoritarianism over consensus - and while JNC rhetoric does support the rights of minorities, it is unclear what, if any, mechanisms would be used to prevent popular policies that attract but a majority vote but are unfavourable to minorities, or if this is considered desirable. 

            It is also notable that the use of a voting mechanism requires identifying who gets to vote, and working out a voting mechanisms, and this is a non-trivial problem - and may perhaps be the origins of the disdain for voting in the IG space. The IETF does not vote in large part because there is no membership of the IETF, or limits to who is involved in its processes, so there is no obvious way to determine who is eligible to vote. The JNC is strong on advocacy of voting as a principle, but I have yet to see an explanation of how the considerable difficulties of determining franchise would be dealt with. I am certainly among those who feel that the UN/ITU '1 state 1 vote' system, extending as it does equal votes to states of widely varying size, and often wildly undemocratic themselves, does not really bear any significant connection to the principle of democracy. It would certainly be helpful if the JNC would make it clear whether they feel this sort of multi-lateral voting mechanisms satisfies their commitment to democracy as a principle or not. 

            So, there we are, three suggested principles for CS support of MS processes. 

The TL:DR summary - 

Openness. Anyone who wishes to participate should be able to, without gatekeeping and minimising barriers to participation. 

Transparency. Meetings and decision making processes should be public and open to all who wish to participate by default. And 

Commitment to consensus. Not all issues may be resolvable by consensus, other mechanisms may be required where irreconcilable differences occur. But consensus processes should be pursued where possible, and are to be preferred to majority voting procedures. 

And my impression is that the JNC position:

- does not favour full openness, wishing to broaden participation but prevent commercial entities from full participation. 

- favours transparency, but does not have as strong a commitment to this principle as MSism advocates. 

- favours majority voting (either direct or representative democracy) over consensus based processes. 

I am not trying to 'straw man' the JNC here - I'd love to be told that, for example, those JNC members who previously were OK with ITU restrictions on document sharing are now willing to commit to a position of strong advocacy for ITU transparency, or if some JNC members favour voting only in cases where consensus decision making has clearly failed, etc. But I think it is worth trying to highlight why those, like myself, who favour MSism are not simply 'hostile to democracy', as Michael would like to paint us, but are rather committed to a set of positive principles that is quite different to a simple embrace of any process with multiple stakeholders, and disagreement with JNC positions is based on a commitment to those broader principles. 

I'd also like to make it clear that, of course, advocacy of MS fora in principle does not mean that we do not have strong criticisms of them in actuality. I think ICANN, for example, has good rules on transparency - but its lack of good accountability structures means that it can fail on transparency at crucial points. And I believe that, while ICANN does try hard to be inclusive of those who cannot attend physical meetings, it could do a lot more and must constantly review its processes to see if they can be improved. Working out where there is general consensus on principles for improvement of existing fora would be useful. 

Regards

David

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