4. Access to Information in Belgium

Art. 25 Belgian Constitution.

Explanatory note accompanying the legislative proposal of the government to implement an article 24ter in the Constitution concerning access to information, Parl. St. Kamer 1992–93, no. 839/1, 1–2.

The Global Right to Information Rating (2017) http://​www.​rti-rating.​org/​country_​rating.​php.

The Global Right to Information Rating is a programme which comparatively assesses the strength of legal frameworks for the right to information from around the world. At the heart of the methodology for applying the RTI Rating are 61 Indicators. For each Indicator, countries earn points within a set range of scores (in most cases 0–2), depending on how well the legal framework delivers the Indicator, for a possible total of 150 points. The Indicators are divided into seven different categories, namely: Right of Access, Scope, Requesting Procedures, Exceptions and Refusals, Appeals, Sanctions and Protections, and Promotional Measures (http://​www.​rti-rating.​org/​methodology/​).

Flemish Decree of 23 October 1991 concerning access to administrative documents within the institutions of the Flemish government, BS 27 November 1991. Currently the matter is regulated in the Flemish Decree of 26 March 2004.

Constitutional reform of 8 June 1993, BS 29 July 1993, 15.584 (Article 24ter), consolidated version in BS of 17 February 1994 (in the consolidated version, Article 24ter turned Article 32).

See also Bamps (1996), pp. 23; Schram (2008), pp. 40; Ornelis (1998) pp. 13; Brems (1995), pp. 620.

Lewalle et al. (2008), pp. 57.

Schram (2010), pp. 10–11; Vande Lanotte and Goedertier (2010), pp. 657.

Constitutional Court 25 March 1998, no. 17/97; Constitutional Court 15 September 2004, no. 150/2004; Council of State 2 October 1997, no. 68.610, Delwart; Council of State 12 December 2003, no. 126.340, Vanderzande & Hallumiez; Council of State 3 October 2011, no. 215.506, Baumwald.

Council of State, 7 November 2003, nr. 125,226, Goormachtigh a.o.

Article 4 Federal Act of 11 April 1994.

Judgments of the Council of State: Council of State 14 October 1996, no. 62.547, nv Electrification du Rail (the use of the extensive terms ‘everyone’ and ‘each’ in the Constitution and in the Federal Act of 11 April 1994 indicates that the right of access to information applies to all; this means natural persons and legal corporations); Council of State 21 October 2013, no. 225.162; Council of State 12 May 2015, no. 231.194, gemeente Schaarbeek (neither the Constitution nor the Federal Act explicitly excludes public corporations; therefore there is no justification that only public corporations cannot benefit from the right of access to information. Public corporations however can only rely on the right of access to information in relation to their competences).

Council of State 14 October 1996, no. 62.547, NV Electrification du rail.

Article 7 Flemish Decree of 26 March 2004.

Article 4 Federal Act of 11 April 1994; article 7 Flemish Decree of 26 March 2004.

Explanatory note accompanying the Federal Act of 11 April 1994 concerning access to administrative documents, Parl. St. Kamer 1992–93, no. 1112/1, 14 (hereafter referred to as: Explanatory Note Federal Act of 11 April 1994); Explanatory note accompanying the Flemish Decree of 26 March 2004 concerning access to administrative documents, Parl. St. Vl. Parl. 2002-03, no. 1732/1, 21 (hereafter referred to as: Explanatory Note Flemish Decree of 26 March 2004).

Council of State, 24 June 2014, no. 227.809, Verrycken.

Council of State 31 January 2012, no. 217.626, XXX.

Article 12 Federal Act of 11 April 1994; Royal Decree 17 August 2007 to determine the amount of the fee due for receiving a copy of an administrative document or an environmental document, BS 14 September 2007.

The Court of Justice judged that the term ‘reasonable amount’ must be interpreted as follows: ‘Consequently, any interpretation of what constitutes “a reasonable cost” for the purposes of Article 5 of the directive which may have the result that persons are dissuaded from seeking to obtain information or which may restrict their right of access to information must be rejected. The term “reasonable” for the purposes of Article 5 of the directive must be understood as meaning that it does not authorise Member States to pass on to those seeking information the entire amount of the costs, in particular indirect ones, actually incurred for the State budget in conducting an information search’. (European Court of Justice 9 September 1999, C-217/97, ECLI:EU:C:1999:395, Commission v. Germany, para. 47–48).

The counting of applications starts on the first day of July and ends on the last day of the month of June.

The numbers include the applications made to the following administrative authorities: a selection of 15 Flemish municipalities (3 municipalities per province), the 5 Flemish provinces, the departments of the 12 policy areas of the Flemish administration (Public Governance and the Chancellery; Finance and Budget; Flemish Foreign Affairs; Economy, Science and Innovation; Education and Training; Welfare, Public Health and Family; Culture, Youth, Sport and Media; Work and Social Economy; Agriculture and Fisheries; Environment, Nature and Energy; Mobility and Public Works; Spatial Planning, Housing Policy and Immovable Heritage), the Flemish Parliament, the Flemish Ombudsman, the Flemish Peace Institute, Flemish Office of the Children’s Rights Commissioner and the cabinets.

The data are based on the different year reports of the Flemish Appellate Body on the Openness of Government (online available at http://​openbaarheid.​vlaanderen.​be/​nlapps/​docs/​default.​asp?​id=​28&​order=).

http://​openbaarheid.​vlaanderen.​be/​nlapps/​data/​docattachments/​EvaluatieOpenbaa​rheidBestuur_​LR.​pdf accessed on 1 March 2017.

Article 1, par. 1, a) Federal Act of 11 April 1994.

Article 1, par. 1, b) Federal Act of 11 April 1994.

See art. 4, §2 Flemish Decree of 26 March 2004.

Article 1, par. 2, 1° Federal Act of 11 April 1994.

For example: on the one hand, the University of Leuven is not acting as an administrative authority by granting the construction of a university building to company X; on the other side, the University of Leuven is acting as an administrative authority when taking examination decisions (Council of State 31 July 2009, no. 195.486, nv Aannemingsmaatschappij CFE; Council of State 16 October 1981, no. 21.467, Van Noten (1981–1982), pp. 491–493; see also Verstegen (2002), pp. 801–814).

Art. 14 of the Coordinated Laws on the Council of State as reformed by article 2 of the Federal Act of 25 May 1999. See the case law of the Constitutional Court: Constitutional Court 15 May 1996, no. 31/96, and Constitutional Court 29 January 2004, no. 2004/17 (online available at http://​www.​const-court.​be/​). In the latter case, the Court ruled that by referring to ‘administrative authorities as referred to in article 14 of the Coordinated Laws on the Council of State’ the legislator wanted to adept to scope of the law to the evolution in the case law.

Council of State 8 February 2000, no. 85.177, Ghysels.

Cf. also Explanatory memorandum preceding the Federal Act of 11 April 1994 concerning access to administrative documents, Parl. St. Kamer 1992–93, no. 1112/1, 9–10.

See for an interesting example Federal Commission on Access to and Reuse of Administrative Documents 7 June 2016, no. 2016–50: the legislation is applicable to a government commissioner; see for another interesting example Federal Commission on Access to and Reuse of Administrative Documents 29 February 2016, no. 2016–25: the legislation is applicable to the Ombudsstelle für Energie/Ombudsdienst voor energie.

Explanatory memorandum preceding the Federal Act of 11 April 1994 concerning access to administrative documents, Parl. St. Kamer 1992–93, no. 1112/1, 9–10.

Legislative proposal to amend the Federal Act of 11 April 1994 concerning access to administrative document, Parl. St. Kamer 2014, no. 0061/001, 4–5.

Explanatory Note Flemish Decree of 26 March 2004, 10; Council of State 6 December 2012, no. 221.641, Arteveldhogeschool.

The decree provides an enumeration of instances that fall within the scope of the decree, such as the Flemish parliament and the instances linked to it, the municipalities, the provinces, the public instances for public welfare and others. The enumeration ends with the ‘all other instances within the Flemish Community and the Flemish region’ which indicates clearly that the enumeration is by no meaning exhaustive (art. 4, §1 Flemish Decree of 26 March 2004).

Art. 4, §1 Flemish Decree of 26 March 2004.

Art. 4, §2 Flemish Decree of 26 March 2004.

Art. 3, 3° Flemish Decree of 26 March 2004.

The Flemish Decree also provides a definition for the notion of ‘environmental instance’ (art. 3, 2° Flemish Decree of 26 March 2004) which is broader than the notion of ‘executive instance’. The specific legislation for access to environmental information and the notion ‘environmental instance’ will be discussed further.

Art. 3, 1° Flemish Decree of 26 March 2004.

See, for example, Council of State 27 March 2012, no. 218.680, Veys.

Art. 1, par. 2, 2° Federal Act of 11 April 1994.

See, for example, Council of State 21 May 2001, no. 95.677, Antoun in which the Council of State judged that a software program concerning the electronic voting is an administrative document.

Explanatory memorandum preceding the Federal Act of 11 April 1994 concerning access to administrative documents, Parl. St. Kamer 1992–93, no. 1112/1, 11 and Report on behalf of the commission of internal affairs, general affairs and the civil service, Parl. St. Kamer 1992–93, no. 1112/13, 9.

Explanatory memorandum preceding the Federal Act of 11 April 1994 concerning access to administrative documents, Parl. St. Kamer 1992–93, no. 1112/1, 11–12. See also the advices of the (federal) Commission for access to information: http://​www.​ibz.​rrn.​fgov.​be/​nl/​commissies/​openbaarheid-van-bestuur/​adviezen/​.

Art. 3, 4° Flemish Decree of 26 March 2004.

See also Tijs (2011), pp. 81–82.

See Schram (2011), pp. 681.

Art. 8 Flemish Decree of 26 March 2004.

Explanatory Note Flemish Decree of 26 March 2004, 21–22.

Art. 5 Federal Act of 11 April 1994.

Section IV. The request procedure (art. 17–21) Flemish Decree of 26 March 2004.

Art. 5 Federal Act of 11 April 1994.

See Schram (2011), pp. 689.

Explanatory Note Federal Act of 11 April 1994, 14.

Art. 5 Federal Act of 11 April 1994.

Art. 4 Federal Act of 11 April 1994; Explanatory Note Federal Act of 11 April 1994, 13–14; Council of State 7 May 2007, no. 170.871, Rummens; Constitutional Court 25 March 1997, no. 17/97.

Art. 17, §1, first paragraph Flemish Decree of 26 March 2004; Explanatory Note Flemish Decree of 26 March 2004, 34.

Ibid; see also Flemish Appellate Body on the Openness of Government 30 September 2015, no. 170/2015 and Flemish Appellate Body on the Openness of Government 14 December 2015, no. 207/2015.

Art. 17, §1, second paragraph Flemish Decree of 26 March 2004.

The Explanatory note clearly states that ‘the applicant can indicate the preferred form’. This means that the applicant has an option to choose the preferred form of the carrier (written, electronic) and the format of the electronic carrier. Explanatory Note Flemish Decree of 26 March 2004, 35.

See also Schram (2013), pp. 83.

Art. 17, §1, third paragraph Flemish Decree of 26 March 2004.

Art. 17, §2 Flemish Decree of 26 March 2004.

Art. 17, §3 Flemish Decree of 26 March 2004.

When the request involves too many documents and aims solely to harass the authorities.

Art. 18 Flemish Decree of 26 March 2004.

The period can be extended, for example, when the document is located elsewhere in an archive (Explanatory note accompanying the legislative proposal of the government to implement an article 24ter in the Constitution concerning access to administrative documents, Parl. St. Kamer 1992–1993, no. 839/1, 18).

Art. 5 Federal Act of 11 April 1994.

Art. 20, §2 Flemish Decree of 26 March 2004.

The terms of the decisions and execution begin on the day after the date of registration of the application and, in the event of no such registration having taken place, on the day after the date of receipt of the application (art. 6 Flemish Decree of 26 March 2004).

Art. 20, §2 Flemish Decree of 26 March 2004.

Art. 20, §3 Flemish Decree of 26 March 2004.

Heremans (2011), pp. 18–50.

Art. 6, §4 Federal Act of 11 April 1994; art. 9 Flemish Decree of 26 March 2004.

Explanatory Note Federal Act of 11 April 1994, 16. For an example see Council of State 14 April 2009, no. 192.371, Nationale Instelling voor radioactief afval en de verrijkte splijtstoffen; Constitutional Court 25 March 1997, no. 17/97, B.2.1. and B.2.2.; Constitutional Court 15 September 2004, no. 150/2004, B.3.2.

See Mast et al. (2014), pp. 911; see also Schram (2011), pp. 691.

Council of State 8 January 2004, no. 126.934, Barbé.

Explanatory Note Federal Act of 11 April 1994, 15–16. See, for example, Council of State 15 May 2014, no. 227.394, cvba Belgische Verbruikersunie Test-Aankoop; see Mast et al. (2014), pp. 912; see also Schram (2011), pp. 691.

Andersen (1999), pp. 38.

Art. 6, §1 Federal Act of 11 April 1994.

An example where the request does not prevail over the fundamental rights and freedoms of the citizens is in the case of the protection of the rights of patients (Council of State 10 January 2013, no. 221.961, cvba Belgische Vebruikersunie Test Aankoop).

Council of State 18 June 1997, no. 66.860, Matagne.

For example, the identity of an informant in fiscal or criminal cases: Council of State 27 June 2001, no. 97.056, Tassin.

Art. 6, §2 Federal Act of 11 April 1994.

The exception with regard to the protection of private life is not applicable in the case that consent is given by the person involved.

For example, the professional secrecy of a lawyer: Council of State 29 January 2009, no. 189.864, Gemeente Lochristi.

Council of State 11 December 2000, no. 69.056, Dewinter.

Art. 6, §3 Federal Act of 11 April 1994.

Council of State 7 June 2004, no. 132.072, Lybaert.

Explanatory Note Federal Act of 11 April 1994, 19.

Council of State 15 May 2014, no. 227.394, CVBA Belgische Verbruikersunie Test-aankoop.

Art. 6, §3 Federal Act of 11 April 1994.

Council of State 29 March 2010, no. 202.459, Sevenhans.

Art. 12 Flemish Decree of 26 March 2004.

For example, in the procedure before granting a permit, objections can be made by citizens. A request for disclosure of these objections may conflict with the right to privacy. The decision to reject access to the identity of the submitter of the objections is justified under the exception of the protection of privacy (Flemish Appellate Body on the Openness of Government, no. 2007/23).

Art. 13 Flemish Decree of 26 March 2004.

Art. 14 Flemish Decree of 26 March 2004.

See, for example, Flemish Appellate Body on the Openness of Government, no. 2008/146: a rejection was based on the economic interest of the government. In this case the information consisted of estimates that were used during negotiations on the purchase of land.

Art. 11, 1° and art. 18 Flemish Decree of 26 March 2004.

Art. 11, 2° Flemish Decree of 26 March 2004.

Flemish Appellate Body on the Openness of Government 4 March 2008, no. 2008/11 (available at openbaarheid.​vlaanderen.​be).

Example of the exception mentioned in article 11, 2° of the Flemish Decree 26 March 2004.

Council of State 28 juni 2011, nr. 214236, Provincie Oost-Vlaanderen.

Flemish Appellate Body on the Openness of Government 18 April 2011, no. 2011/56 (available at: openbaarheid.​vlaanderen.​be); Flemish Appellate Body on the Openness of Government 14 January 2010, no. 2009/176.

Council of State 2 May 2016, no. 234.609, Dumortier.

The VRT invoked the exceptions of articles 13, 2° and 14, 1° of the Flemish Decree of 26 March 2004.

Art. 14, 5° and art. 15, 5° Flemish Decree of 26 March 2004.

The term ‘political decision-making process’ has to be interpreted strictly (Explanatory Note Flemish Decree of 26 March 2004, 31).

Council of State 21 November 2014, nr. 229.270, Katoen Natie, e.a.; see also Council of State 8 November 2016 nr. 236.367.

Flemish Appellate Body on the Openness of Government 12 July 2013, no. 2013/90. Contra case 2015/82 the Appellate Body argued that (full) refusal was not allowed and that the local authority had to blacken words/sentences as to allow a partial disclosure.

Council of State 24 June 2014, no. 227.809, Verrycken.

Art. 3, 5° Flemish Decree of 26 March 2004.

Art. 3, 4° Federal Act of 5 August 2006.

Art. 33–42 Federal Act of 5 August 2006.

Art. 32, §2 Federal Act of 5 August 2006.

See Schram (2010), pp. 113.

Art. 11 Flemish Decree of 26 March 2004.

Art. 27 Federal Act of 5 August 2006; art. 15 Flemish Decree of 26 March 2004.

Art. 15, §1, 1° Flemish Decree of 26 March 2004; art. 27, §1, 1° Federal Act of 5 August 2006.

Art. 15, §1, 2° Flemish Decree of 26 March 2004; art. 27, §1, 6° Federal Act of 5 August 2006.

Art. 15, §1, 3° Flemish Decree of 26 March 2004; art. 27, §1, °4 Federal Act of 5 August 2006.

Art. 15, §1, 5° Flemish Decree of 26 March 2004; art. 27, §1, 8° Federal Act of 5 August 2006.

Art. 15, §1, 6° Flemish Decree of 26 March 2004; art. 27, §1, 3° Federal Act of 5 August 2006.

Art. 15, §1, 7° Flemish Decree of 26 March 2004; art. 27, §1, 7° Federal Act of 5 August 2006.

Art. 15, §1, 1° Flemish Decree of 26 March 2004; art. 27, §1, 1° Federal Act of 5 August 2006.

Art. 15, §1, 10° Flemish Decree of 26 March 2004; art. 27, §1, 2° Federal Act of 5 August 2006.

The Federal Act gives two examples: the physical protection of radioactive materials and the defence of the country.

Art. 15, §1, 4° Flemish Decree of 26 March 2004.

Art. 15, §1, 9° Flemish Decree of 26 March 2004.

Art. 15, §2 Flemish Decree of 26 March 2004; art. 27, §2 Federal Act of 5 August 2006.

Art. 8, §2 Act of 11 April 1994; art. 22 Flemish Decree of 26 March 2004.

Art. 2, 4° Act of 11 April 1994; art. 35 Flemish Decree of 26 March 2004.

Art. 8 Act of 11 April 1994.

If the advice is not made within this period, then the administrative authority can decide without the advice.

Art. 8, §2, para. 3 Act of 11 April on access to administrative documents; Council of State 29 May 2012, no. 219.523, Gozin.

Council of State 18 October 1999, no. 82.935, Duez.

Art. 22 Flemish Decree of 26 March 2004.

Art. 24, §1 Flemish Decree of 26 March 2004.

This period can exceptionally extend the deadline within 15 days if the appeal body is of the opinion that the information requested will be difficult to collect in a timely fashion or if the verification of the application as regards the grounds for exception is difficult to complete in time.

Flemish Appellate Body on the Openness of Government, Year Report 2015–2016, Brussel 2016, available at http://​openbaarheid.​vlaanderen.​be/​nlapps/​data/​docattachments/​2017013014561758​9.​pdf.

See Veny (2014), pp. 189.

Explanatory Note Federal Act of 11 April 1994, 12.

Article 2, 1° Federal Act of 11 April 1994; Explanatory Note Federal Act of 11 April 1994, 12.

Article 2, 2° Federal Act of 11 April 1994; Explanatory Note Federal Act of 11 April 1994, 12–13.

Article 2, 3° Federal Act of 11 April 1994.

Article 2, 4° Federal Act of 11 April 1994; Explanatory Note Federal Act of 11 April 1994, 13.

See, for example, Council of State 31 January 2012, no. 217.627, De Baere; Council of State 18 October 1999, no. 82.935, Duez.

Explanatory Note Federal Act of 11 April 1994, 12.

Council of State 8 March 2011, no. 211.844, XXX.

In fact, the Flemish Decree has the broadest policy concerning active access to documents within Belgium (see Schram (2011), pp. 688).

Art. 28, §1 Flemish Decree of 26 March 2004. Furthermore, the Flemish executive can name the instances as mentioned in article 4, §1, 10° which also have to respect this obligation.

Art. 28, §1 Flemish Decree of 26 March 2004; Explanatory Note Flemish Decree of 26 March 2004, 44.

Art. 28, §2 Flemish Decree of 26 March 2004.

Art. 29, §1 Flemish Decree of 26 March 2004.

Explanatory Note Flemish Decree of 26 March 2004, 45.

Art. 29, §1, last paragraph Flemish Decree of Flemish Decree of 26 March 2004; Explanatory Note Flemish Decree of 26 March 2004, 45.

Explanatory Note Flemish Decree of 26 March 2004, 45.

Art. 29, §3 Flemish Decree of 26 March 2004.

Omz. VR 2006/26 concerning access to information. Available on http://​openbaarheid.​vlaanderen.​be/​nlapps/​docs/​default.​asp?​id=​26#19 (26 July 2016). The product catalogue is available on the following website: http://​productencatalog​us.​vlaanderen.​be/​.

See also Explanatory Note Flemish Decree of 26 March 2004, 45.

The obligation to appoint a communication officer does not imply that it has to be a full-time function. Depending on the size of the municipality or public centre of social welfare and the dimension of the communication needs, the function can be either full time or part time. A full-time function is recommended in municipalities of at least 20,000 citizens. In smaller municipalities there are possibilities for collaborations between municipalities. Another possibility is that one communication officer is appointed for both the municipality and the public centre for social welfare.

See Explanatory Note Flemish Decree of 26 March 2004, 47–48.

Art. 31, §1–3 and §5 Flemish Decree of 26 March 2004.

Explanatory Note Flemish Decree of 26 March 2004, 47–48.

Art. 32, §1–2 Flemish Decree of 26 March 2004.

Explanatory Note Flemish Decree of 26 March 2004, 48.

Art. 32, §3 Flemish Decree of 26 March 2004.

Explanatory Note Flemish Decree of 26 March 2004, 48.

Art. 33, §1 Flemish Decree of 26 March 2004.

Art. 33, §2 Flemish Decree of 26 March 2004; Explanatory Note Flemish Decree of 26 March 2004, 48.

Art. 34 Flemish Decree of 26 March 2004.

Art. 35 Flemish Decree of 26 March 2004.