Aktivieren Sie unsere intelligente Suche, um passende Fachinhalte oder Patente zu finden.
Wählen Sie Textabschnitte aus um mit Künstlicher Intelligenz passenden Patente zu finden.
powered by
Markieren Sie Textabschnitte, um KI-gestützt weitere passende Inhalte zu finden.
powered by
Abstract
In France, a legislation on freedom of information (FOI) granted every person the right to obtain communication of documents held by an administration within the framework of its public service mission, regardless of their form or medium, in 1978. This marked a stark break away from a tradition of administrative secrecy and sought to improve the relations between the French State and its citizens.
The French FOI act aims to find a balance between the right to access public information (a democratic requirement and a prerequisite for the exercise of fundamental rights), and other competing interests (privacy, competition, and public order and security). This equilibrium is constantly reshaped under the influence of technological developments and an increasing commodification of public information.
Changes and adaptation occur through legislative changes (such as the 2016 statute on ‘Republique numérique’) and through practice, for example, through the combined interaction of an independent authority—the Commission d’accès aux documents administratifs (CADA)—and the French administrative judge, the Council of State.
This chapter seeks to provide an assessment of how the law works in practice, thanks to interviews with senior practitioners in this matter such as legislators, judges, and information commissioners and the analysis of empirical data such as CADA’s annual reports, opinions, and advice. Three main issues emerge from this assessment: firstly, administrative inertia is still very strong nearly 40 years after the first FOIA was adopted; secondly, the exceptions to the principle of access to administrative documents have grown over time, reducing the actual scope of FOI; thirdly, fragmentation of the special regimes may lead to more confusion than transparency.
Anzeige
Bitte loggen Sie sich ein, um Zugang zu Ihrer Lizenz zu erhalten.
Art. 7 Charter for the Environment 2004. Art. 15 French Déclaration des droits de l’Homme et du Citoyen provides that ‘Society has the right to ask a public official for an accounting of his administration’ (Transparence administrative, p. 46 (F. Moderne)). All legislative and executive acts mentioned in this chapter can be found on the official website of the French official journal: https://www.legifrance.gouv.fr/.
For example: Haute Autorité pour la transparence de la vie publique (see Acts nos 2013-906 and 2013-907 of 11 October 2013); Haut Comité pour la transparence et l’information sur la sécurité nucléaire (Act no 2006-686 of 13 June 2006 (art. 23-27, today codified in art. L125-24- L125-40 environmental code)).
The Open Government Partnership is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance (https://www.opengovpartnership.org/about/about-ogp).
We thank our interviewees who generously gave us their time to answer our questions: Mrs C. Bouchoux, Senate member (2011–2017) and CADA member (interview with Yseult Marique); Mr M. Dandelot, CADA Chair; Mrs C. Guichard, CADA Secretary General; Mrs C. Drèze, CADA Communication Officer; Mrs M. Perrière, CADA General Rapporteur; Mr P. Lemoine, CADA member (interviews with Emmanuel Slautsky).
The debates within the Council of Europe led to the adoption, in 1981, of the Rec No R (81) 19 of the Committee of Ministers to member states on the access to information held by public authorities. In 2009, the Council of Europe Convention on Access to Official Documents was adopted. It will enter into force when ten states have expressed their consent to be bound by the Convention (this is not the case yet). France has not signed or ratified it. It is the first binding international treaty that contains a general right to access administrative documents (Garin (2017), p. 27).
A few months before, a Decree no 77-127 of 11 February 1977 had paved the way for the adoption of the FOIA, but its scope remained limited: notably, it did not establish as a default rule the possibility of gaining access to administrative documents (CADA, Annual report 1979–1980, pp. 5–6). See also, a few months after the Act of 17 January 1978, Act no 79-18 of 3 January 1979 on archives.
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the reuse of public sector information. See also Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the reuse of public sector information. European law is only concerned with the reuse of public information, not access to administrative documents (see art. 1 Directive 2003/98/EC).
See, for example, CADA, Guide des personnes responsables de l’accès aux documents administratifs et de la réutilisation des informations publiques, 2007, available on http://www.cada.fr/IMG/pdf/Guide_PRADA_.pdf and CADA, Annual report 2016, p. 66.
Interview with M. Perrière. See Senate report, volume 1, p. 149. There were 1642 PRADAs in 2016 (CADA, Annual report 2016, p. 66). The CADA considers that more than 5000 PRADAs should be appointed if the obligations under the FOIA are to be respected (CADA, Annual report 2013, p. 107).
Although it is only in 2005 that the CADA was explicitly classified as an independent administrative authority (art. 10 Ordinance no 2005-650 of 6 June 2005). Currently, the CADA also falls within the scope of a 2017 Act which regulates independent administrative authorities (Act no 2017-55 of 20 January 2017).
Interviews with M. Dandelot et al. and M. Perrière. See also Delaunay (1993), pp. 557–558. The limited means of the CADA are also regularly highlighted in its annual reports (e.g. CADA, Annual report 2008, p. 52). The CADA is not the only French authority acting as a guardian of administrative transparency with very limited means. Another example is the Commission consultative du secret de la défense nationale (see Rapport de la Commission consultative dusecretde la défense nationale 2013–2015, Paris, La Documentation française, 2016, p. 95). On this commission, see Sect. 6.3.4.
The FOIA also applies to some private entities and does not apply to all public bodies. The details of its scope of application will be discussed below. For reasons of convenience, we use the expressions‘public bodies’ or ‘public authorities’ to refer to the entities bound by the FOIA and only specify the nature of those entities when necessary for a correct understanding of the situation.
In 2016, for example, the CADA took on average 69 days to issue its opinions (CADA, Annual Report 2016, p. 67). Over the years, the numbers have evolved as follows: 39.9 days (2011), 39.1 days (2012), 40.3 days (2013), 50.1 days (2014), and 58 days (2015).
Interview with M. Dandelot et al. The numbers have been high since the start (e.g. CADA, Annual report 1986–1987, p. 16; Annual report 1988–1989, pp. 24–27). Add CADA, Annual report 2013, pp. 7–15 (in-depth analysis of 120 refusals by the authority to follow the opinion of the CADA).
No response in 57.2% of cases in 2015, 36.85% in 2014, 52.85% in 2013 (CADA, Annual Report 2015, p. 70). The 2016 Annual report mentions that the CADA tends to receive increasingly less information about the ways in which public bodies follow its opinions. It identifies gaining more information on this area as one key area for future work (p. 65).
Between 1990 and 2002, refusals to grant access to administrative documents were submitted for advice to the CADA 42,000 times but were challenged only 1000 times before the judge (Puybasset (2003), p. 1308). Add, for example, CADA, Annual report 2004, p. 22; Annual report 2005, p. 69; Annual report 2010, p. 49 and p. 81; Annual report 2012, p. 80.
There are no centralised statistics on the number or identity of people requesting access to administrative documents. The only statistics available concern applicants to the CADA.
See, for example, CADA, Annual report 2000, p. 57 (numbers for 1999 and 2000); Annual report 2005, p. 19 (numbers for 2001, 2002, 2003, 2004, and 2005); Annual report 2009, p. 60 (numbers for 2006, 2007, 2008, and 2009); Annual report 2013, p. 85 (numbers for 2010, 2011, 2012, and 2013. In 2013, however, the requests were equally split between natural and legal persons).
The exclusion of judicial documents is a result of the case law (Lallet (2014), at 78). See, for example, CE, 7 May 2010, no 303168. On judicial documents related to civil status, see Lallet (2014), at 88–90. For parliamentary documents, see art. L300-2 CRPA.
For example, in 1988, the CADA estimated that a municipality of 30,000 inhabitants would receive 20–50 requests per week for access to documents on average (CADA, Annual report 1986–1987, p. 10). See also Transparence administrative, pp. 99–110 (Delaunay).
Art. L311-2 CRPA. This duty applies to both public and private bodies subjected to the CRPA. See CE, 15 October 2014, nos 365058 and 365063. A 2003 study in one French region showed that in a majority of the cases this duty was not respected (Transparence administrative, pp. 105–106) (Delaunay).
Between 2009 and 2013, 7% (2009), 11.3% (2010), 3.2% (2011), 5.3% (2012), and 1.94% (2013) of the unfavourable opinions issued by the CADA were justified by the abusive character of the requests (the numbers are not available in more recent years) (CADA, Annual report 2013, p. 98).
See, for example, CADA, Annual report 1999–2000, p. 7; Annual report 2002, p. 18; Annual report 2003, p. 2; Annual report 2005, p. 26; Annual report 2013, p. 83. See also Transparence administrative, p. 87 (Chevallier).
Lasserre et al. (1987), p. 199; Roux in Debbasch (ed.) (1990), pp. 91–92; Delaunay (1993), pp. 575–576; Puybasset (2003), p. 1308; Transparence administrative (2003), p. 107 (Delaunay). See also, for example, CADA, Annual report 2003, p. 2.
Art. L321-4 and R321-5 CRPA. The conditions for reusing public information are examined in Sect. 5.6. See also art. L312-1 CRPA, art. L312-1-1 CRPA, art. L312-1-3 CRPA, and art. L312-2 CRPA (these provisions list documents and data that must be made publicly available).
Decree of 1 October 2001. It should be updated to take into account new technological developments (Lallet (2014), at 249), but this has not been the case yet.
For example: peak for preparatory documents of 39.8% in 1992 (CADA, Annual report 1992, p. 33) while now the statistics average 10% (CADA, Annual report 2013, p. 98).
CADA, Annual report 2008, p. 67. Similar results in CADA, Annual report 1999–2000, p. 71 (1995–2000) and CADA, Annual report 2004, p. 16 (2001–2004). The situation was, however, different earlier on: for example, in 1993, 3.6%, and in 1994, 2.7% (CADA, Annual report 1993–1994, p. 76).
Cinquième rapport de la Commission consultative du secret de la défense nationale, Paris, La Documentation française, 2010, p. 8 (for 2005, 2006, and 2007, average of 20 opinions a year). Despite variations across the years, the overall trend is confirmed in the following years (Rapport de la Commission consultative du secret de la défense nationale 2013–2015, 2016, p. 85).
CADA’s statistics only refer to public security and give the following figures: 4.9% (2009), 1.5% (2010), 2% (2011), – (sic–2012), 1.94% (2013) (CADA, Annual report 2013, p. 98).
It is mentioned in art. L311-6 CRPA but refers to a special regime detailed elsewhere (art. L111-7 public health code). Medical information is disclosed to the person concerned directly or through a doctor, according to her wish (art. L311-6 last alinea CRPA). CADA, Informations à caractère médical, available on http://www.cada.fr/informations-a-caractere-medical,6092.html.
Requests in relation to electoral lists are increasing. The CADA ensures that access to electoral lists is limited to a specific use, namely, ensuring that the electoral lists are correctly established. Purely commercial uses (art. R16 last alinea electoral code) are not allowed (CADA, Annual report 2016, pp. 35–36). CE, 2 December 2016, no 388979 (concl. Rapporteur public A. Bretonneau) took a stricter approach: the mere serious risk that the person requesting access to electoral lists might use them at least partly for commercial purposes was enough to justify the mayor rejecting the request.
CADA, Annual report 1982–83, pp. 8–9 noted the different strategies used by environmental associations. Some targeted specific issues (e.g. access to documents pertaining to emissions in the environment) while others focused on gaining access to local projects (e.g. urban projects or road building). For an overview of the situation before a special regime was developed, see CADA, Annual report 1988, second part.
See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention, 1998), as well as the EU legislation, especially the Directive 2003/4/EC on Public Access to Environmental Information.
France was found in breach of first European Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (CJEU, 26 June 2003, C-233/00).
‘Everyone has the right, in the conditions and to the extent provided for by law, to have access to information pertaining to the environment in the possession of public bodies and to participate in the public decision-taking process likely to affect the environment’ (translation from the Constitutional Council).
These administrative documents do not have to be communicated immediately. The different appeal possibilities that are available during the validation process of the electoral accounts need to have been exhausted or time to introduce them needs to have lapsed.