17 March 2017
The Court of Justice has ruled that the EU’s transparency rules do not allow citizens to access information stored in electronic databases unless there is a pre-existing search tool to extract it. This case highlights the risk that the EU’s transparency rules will become obsolete as technology in data processing and storing improves. ClientEarth lawyer Anne Friel explains.
This was an appeal to the Court of Justice against the General Court’s decision in case T-214/13. It concerned an access to documents request submitted by Rainer Typke for information on a Commission recruitment competition that he had taken part in.
Essentially, Mr Typke sought access to that he claimed was held in a Commission database, relating to the candidates in the recruitment competition, to the questions they had been asked, the answers required and those actually given and the languages used.
The Commission refused the request on the basis that the documents did not exist; Mr Rainer was asking the Commission to create a new document by merging information from existing documents. The General Court agreed with the Commission.
Regulation 1049/2001 on access to documents held by the EU institutions only applies to existing document and cannot oblige the institutions to create new documents. Since the information requested could not be extracted from the database by means of a normal or routine search using an existing search tool, the request did not relate to an existing document.
Mr Typke appealed to the Court of Justice, presenting a number of arguments to show that the General Court erred in law in deciding that his request for access to documents was tantamount to the creation of a new document. The Court of Justice rejected them all and upheld the General Court’s decision.
First, the Court of Justice confirmed that Regulation 1049/2001 does not require the Commission to create a new document, even if that document is based on information already appearing in existing documents held by it.
The Court then looked at whether the extraction of information contained in an electronic database constitutes generating an existing document, or creating a new one.
In this respect the Court drew a distinction between “documents of a static nature”, on the one hand, and “the dynamic nature of electronic databases”, on the other.
While static documents, comprising documents in paper form or “a straightforward electronic file”, are clearly existing documents, the same approach cannot be applied to electronic databases, “since a document which may be generated very easily from information already contained in a database is not necessarily an existing document within the strict sense of the term.”
According to the Court, the end users of databases access the information they contain by using preprogrammed search tools.
Therefore, the Court concluded that “all information which can be extracted from an electronic database by general use through preprogrammed search tools, even if that information has not previously been displayed in that form or ever been the subject matter of a search by the staff of the institutions must be regarded as an existing document.”
Conversely, “any information which would, in order to be obtained, require an alteration either to the organization of an electronic database or to the search tools currently available for the extraction of information must be considered to be a new document.”
In the context of the case, this meant that the requested information amounted to a request for the creation of a new document, which fell outside the scope of Regulation 1049/2001
At first sight, it seems that the Court has established fair and objective criteria to differentiate between existing and new documents for the purpose of Regulation 1049/2001 in the context of electronic databases.
Indeed, the Court’s observation that it is equally possible for an institution to destroy documents in a physical format and those generated by extraction from a database is technically true.
Yet, ClientEarth has already seen at least one instance of this judgment being used by the institutions to refuse access to information submitted through an online notification portal.
The lack of technical detail in the Court’s judgment is a concern, as the difference between “dynamic content” in a data base and a “straightforward electronic file” is far from clear in this context.
This poses a real threat to EU transparency in an age where much of the data that companies are required to submit to the institutions on chemicals, food additives, pesticides, etc is submitted online and organized directly into electronic databases.
In some instances, private companies are even subcontracted to extract the information that the institutions need to discharge their duties.
In these circumstances, it is incredibly easy for the institutions to claim that they do not have the means to extract the requested information.
Seen in this light, the Court’s judgment fails to take into account the realities of the highly technical digital era we live in.
Contrary to what the Court claims, it is very unclear whether, in practice, its approach really does ensure the widest possible access for the public to documents held by the institutions. We are sure to see further litigation to clarify these points in the future.