Dear Secretariat General of the European Commission,

Please pass this on to the person who reviews confirmatory applications.

I hereby am submitting a confirmatory application to my access to documents request sent on 17 February 2017 and given GESTDEM reference number 2017/308. A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/conc...

I. FACTS

I submitted my request on 17 February 2017 via the AsktheEU.org website which was subsequently registered by the Commission and given GESTDEM number 2017/308 on 18 February 2017.

On 8 February 2017 I was informed by the Commission of an extension of the deadline for handling my request by 15 working days.

On 1 March 2017 I received a reply from the Commission containing a Decision on my access to documents request. Seven (7) documents were identified as pertaining to my request - I was given access to three documents, but I was denied access to four documents identified by the Commission.

I was refused access to the following four documents due to the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation 1049/2001 relating to protecting the decision making process of the Commission.

1. Background Note on the subject of 'fake news' (registered on 17/02/2017 under reference number Ares(2017)881559);

2. DG CONNECT proposal for background note on 'fake news' (registered on 17/02/2017 under reference number Ares(2017)881373);

3. Letter from Commissioner Oettinger to the President of the Commission on online platforms (registered on 10/01/2017 under reference number Ares(2017)123266);

4. Note on online platform policy (registered on 17/02/2017 under reference number Ares(2017)881690);

Below I explain why access to the four documents in question should be given:

II. SUBSTANTIVE ASSESSMENT

It should be stated from the outset that, in accordance with recital 11 of Regulation 1049/2001, the general principle is that “all documents of the institutions should be accessible to the public.” The burden is therefore on the institution to prove to the requisite legal standard that full disclosure of the four documents at issue would seriously undermine the DG/Commission’s decision-making process (Article 4(3) of the Regulation).

It has been established by the Court of Justice that the reasons for any decision based on the exceptions of Article 4 of the Regulation must be stated by the institution (Sweden and Turco v Council, C-39/05 P and C-52/05 P at 48). If an institution decides to deny full access to a document, it must explain two things:

“first, how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001 relied on by that institution and, secondly, in the situations referred to in Article 4(2) and (3) of that regulation, whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned”. (Sweden and Turco v Council, C-39/05 P and C-52/05 P at 48)

II.a. FAILURE TO ESTABLISH THE HARM TO THE PROTECTED INTEREST

The Commission in this case, has failed to explain how disclosure of the four documents in question could specifically and effectively undermine its decision-making process. The Commission has stated only that the “Disclosure of the documents requested would seriously undermine the protection of the decision-making process of the Commission, as it would reveal preliminary views and policy options which are currently under consideration; Commission's services must be free to explore all possible options in preparation of a decision free from external pressure”.

According to CJEU case-law, the exceptions in Article 4 of the Regulation must be interpreted strictly, and that the institution must explain how the risk of an interest being undermined must be reasonably foreseeable and must not be purely hypothetical (C-280/11 P Access Info Europe v Council at 54, and C-506/08 P Sweden v MyTravel and Commission at 76). The reasons provided by the Commission however, are at best hypothetical in nature and do not identify any specific or foreseeable harm to disclosure in this case, were the documents to be disclosed.

Furthermore, the Commission has failed to explain why input from stakeholders or external parties at the present time would seriously and foreseeably undermine the decision making process. The Commission has disclosed three other documents that demonstrate it actively sought input into its preliminary discussion on ‘fake news’ from a limited number of private stakeholders. It is not clear at the present time how the Commission is unable to formulate a “decision free from external pressure” when only a few months ago it solicited input from external stakeholders. The inconsistent assessment of perceived harm to the decision making process demonstrates that the Commission has arbitrarily applied the exception in this current instance without sufficient legal basis.

Finally, I wish to add that ensuring and even stimulating public debate in Europe on the topic of ‘fake news’ will make the decision making process more effective for the Commission, rather than harm it. A broad and open public debate on the topic whereby all options are on the table, debated, discussed, rejected, and/or agreed upon will help to streamline the Commission’s own decision making process and formulate a well-informed and appropriate policy. An open public debate will also encourage buy-in from the European public to the decisions of the Commission that will essentially lead to better implementation and greater public acceptance of the rules that are eventually decided.

Consequently, for the reasons stated above, the Commission has not established that access to each of the four documents at issue could specifically and effectively undermine its decision making process.

II.b. THERE IS AN OVERRIDING INTEREST IN DISCLOSURE

Even if it were to be found that disclosure would undermine the decision-making process of the Commission, there would nevertheless be an overriding public interest in fully disclosing the refused documents.

There is an overriding public interest in disclosure of the four documents for my request about "fake news" because the issue deals directly with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information. The potential to limit information or the flow of information in the public domain may limit freedom of expression, including the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. There is therefore an overriding public interest in having access to the considerations of the Commission and for the public to express its objection or support for such considerations. The need to have an open and frank public debate in the issue of ‘fake news’ is key to ensuring the adequate consideration and protection of fundamental human rights.

Given that the Commission has also discussed the topic with private stakeholders at the same time it was conducting preliminary discussions as part of the decision making process, it is essential that the public know the various influences that went into the overall decision making process in order to ensure democratic oversight and accountability of the considerations by the Commission. It will also help to ensure accountability by the public of the Commission for the decisions it takes on the issue of ‘fake news’.

Given these overriding public interest arguments, I wish to have full access to the four refused documents.

Yours faithfully,

Arne Semsrott