Old national habits die hard where EU secrecy and transparency are concerned

THE score for transparency this week, out of 20, is Sweden 18, Finland 13, the European Council of Ministers 4, Ireland 0

THE score for transparency this week, out of 20, is Sweden 18, Finland 13, the European Council of Ministers 4, Ireland 0. Or nul points, as we say in Europe.

But let me go back to the beginning of the story.

When Sweden's politicians were campaigning for accession to the EU they told their citizens that there was no need to worry about their constitutional right to freedom of information. It would not be affected. The fears of journalists were groundless.

That was not the whole truth. There was certainly an expectation on the part of their fellow members in the EU Council of Ministers that Sweden would not regard all the Council's internal documents as public and that it would adhere to the Council's policy on disclosure.

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No one said it out loud, however, for fear of scaring the voters.

And, of course, there was no way that the issue would just disappear. Last autumn, to test the limits of both their own government's commitment to freedom of information and that of the Council, a Swedish journalists' group wrote to both requesting the same specific 20 documents relating to Europe's most secretive field of activity, Europol.

They received 16 of them in full and a further two in part from their government. But they got only four from the Council of Ministers. Now they have taken the Council to the European Court of Justice claiming access to the rest of the papers in an action funded by Sweden's leading quality paper Dagens Nyheter.

A short time later their Finnish counterparts did the same.

They got seven complete and a further six filleted documents from their own government.

Last week The Irish Times, confident of the Government's commitment to conduct its business as if in a glass room, tried the same.

An official request to the Irish Permanent Representation to the EU produced the following short and polite reply: "As you will be aware there is a pending European Court case which seeks to establish whether member-states may hand over Council documents to the public. Until this matter has been resolved you should apply directly to the Council Secretary-General."

Fair enough, I hear you say, the matter is sub judice.

Not so.

Firstly, the case will not determine whether member-states should hand over documents, but whether the Council, which alone is being sued, should do so. A decision will still leave member-states with the dilemma of what they should do individually - and Sweden with a constitutional imperative to release documents in accordance with its own procedures which are independent of the government.

To stop the Swedes releasing documents, legal sources say the Council, or a member-state, will have to take them to the court. And that would be very embarrassing at a time when the EU is trying to project an image of increasing openness.

(We are not talking here about documents whose release would threaten security or the fight against crime, which Swedish law specifically exempts from disclosure rules.)

Secondly, the court action has certainly not inhibited the Finns from releasing the bulk of the material which is now in the public domain anyway.

To be fair, Ireland was one of the five countries which abstained in the Council (none voted against withholding) when the issue was debated. Irish diplomats and even politicians are more than willing most of the time, to tell journalists what is going on. Off the record.

Although the European institutions are as leaky as a sieve, Irish solutions to European transparency problems are in the end the basis of a news patronage system that can only be corrupting in the long run.

Ireland has demonstrated an increasing willingness to back transparency measures in the Council whose own regime has improved in part due to the Guardian's case last year. It forced the Council to justify separately each withholding. The Inter-Governmental Conference will also discuss Swedish proposals on the issue.

But, even before that, the Government, which is considering landmark domestic legislation on the issue from Eithne Fitzgerald could decide to join the side of the angels by backing the Dagens Nyheter case as Sweden and Denmark have agreed to do.

The usual sources tell me off the record, of course, that a decision has already been taken not to do so. But a change of heart is still possible before February 25th.

Patrick Smyth

Patrick Smyth

Patrick Smyth is former Europe editor of The Irish Times