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April 9, 2009

EU Observer[1]

EUOBSERVER / BRUSSELS - New rules on public access to EU documents have prompted one of the European Commission's key departments to circulate a memo warning officials to be careful about what they write in emails and advising them on how to narrowly interpret requests for information.

The 15-page handbook was circulated in January to officials working in the commission directorate for trade, one of the EU's most important policy areas affecting millions of people both within and beyond the bloc.

The instructions "make it easier to get reports out" and "avoid having to go through blanking out" documents, says the commission.

It reminds DG trade employees that all documents, including emails, are "in principle subject to disclosure" and asks them to think of the regulation when they are producing documents.

"Each official must be aware that all his/her documents, including meeting reports and e-mails can potentially be disclosed. You should keep this in mind when writing such documents.

This is particularly the case for meeting reports and emails with third parties (e.g. industry), which are favourite "targets" of requests for access to documents, especially by NGOs," reads the memo.

It asks officials to draft documents "with the utmost care" while telling them to avoid making references to informal contacts, such as meals or drinks, with lobbyists.

"Don't refer to the great lunch you have had with an industry representative privately or add a PS asking if he/she would like to meet for a drink."

The document also tips off officials on how to narrow down the interpretation of a request for information. It points to a past example where a request referred to DG trade meetings with individual companies, meaning the department could avoid making public its contacts with business lobbyists.

Separating the factual from the subjective

"Recent cases concern requests for information about meetings with 'individual companies' on our FTAs [Free Trade Agreements] which have allowed us to exclude business federations on the same points, or about meetings with 'DG Trade officials' which have allowed us to exclude meetings on the same point with the Commissioner or the cabinet," it notes.

As a way of avoiding officials having to blank out parts of documents they release to the public, the transparency guide suggests writing two accounts of meetings, a "factual" or neutral one that can be released to the public and a more "personal/subjective" one with assessments and recommendations for follow up that need not be disclosed.

It also explains that briefings should not be made public if still considered "newsworthy" – a derogation allowed under the regulation for documents concerning a decision still in progress – with DG Trade working on a series of key issues including making free trade agreements with poor countries (something NGOs are always keen to have an insight into) and sensitive WTO decisions.

DG Trade's take on the transparency regulation which MEPs recently voted to expand to cover all documents, including electronic ones, has come in for criticism.

Corporate Europe Observatory, a transparency NGO, said the instructions appear to "directly contravene the spirit and content of the regulation."

Scandalous

It is a "scandalous" attempt to "legitimise DG Trade's recurrent attempts to shield evidence of its liaisons with corporate lobbyists from information requests," said CEO campaigner Pia Eberhardt.

For its part, the European Commission defended the memo. A spokesperson told EUobserver: "Actually we think these are good instructions. It makes clear that no category of documents is excluded [from the regulation]."

The spokesperson also said that the instructions "make it easier to get reports out" and "avoid having to go through blanking out" documents.

The transparency regulation dates from 2001 but the commission recently proposed to overhaul it after complaints from the EU ombudsman and several court cases. Following MEPs' vote last month the regulation has gone back to committee for discussion on sensitive issues such as the extent to which commercial data can be excused from disclosure.

The updated law is expected to be approved in the second half of this year, under the Swedish EU presidency.