Dutch Wob War Enters New, More Civilized Stage

3 February 2012

By Roger Vleugels

Vluegels, roger.vleugels@planet.nl, is based in The Netherlands where he publishes Fringe Spitting, in which this report first appeared.

In the first half of 2011 the Minister of Internal Affairs, Piet-Hein Donner, in charge for the Dutch FOIA, the Wob, launched his attack on the Wob. Since September 2011 the early signs of change were visible and now February 2012 we are entering a new phase in the Wob War. We are entering a new probably more civilized stage.

Donner’s Attack – May 2011

The minister‘s attack had two focusing points: he wanted to exclude large amounts of documents [he introduced the draft of a new exemption: governance intimacy] and he wanted to reduce the volume of requests made [ridicules: the request volume in the Netherlands is compared with Anglo-Saxon and Scandinavian countries 10 times or even more lower].

After his attack he was hit by a storm of lifted eyebrows and more fierce opposition. The result of this storm was that he wrote, four weeks later, a letter to the parliament in which both focusing points were vanished. What remained was the offensive anti-transparent attitude.

Wob hearing in parliament – September 2012

Already before this hearing it was clear that Donner was leaving office to become the vice-chair of the Council of State.

The hearing was very good. It was the first time since 2005 that the parliament had a serious gathering on Freedom of information. [One of the consequences of this gap was that all spokesmen/women were new].  All speakers, requesters, legal advisors and academics were about unanimous in their analysis and advices.

More details on the attack and the hearing in the Fringe Wob War Log.

Expert meeting – February 2012

Since the attack and hearing there have been a lot of meetings and projects. Very active are among others: several political parties, the Ombudsman, some press organizations, some legal advisors, one or two academics and civil servants in the law-writing-department of the Ministry of Internal Affairs. This mixture of activity generates proposals for Wob amendments and even a draft for a complete new Wob. On February 17 there will be a first public update visible in an expert meeting in parliament.

Some of the components of those amendments and the draft are:

1 – new definition of body

A Wob-body is any public or private body which, permanently or non-permanently, has a public task and/or is financed by public money.

2 – administrative appeal

The present administrative complaint construction has to be replaced by an administrative appeal at a new body with binding powers: the information commissioner or authority

3 – Tromsø and Aarhus

The new Wob has to be in line with both treaties, and more: The regime for environmental docs has to be in power for all docs [there is no legal justification to discriminate between environmental and other docs]

4 – exemption update

There has to be a modification of the exemptions: more in line with Tromsø; and Dutch and EHRM jurisprudence has to be included [it often defines and/or narrows down the original text]

5 – notification or registration system

A start has to be made with better archival governance.

6 – training of Wob-officials

Although our Wob is almost 32 years old there has never been any training of officials, there are even no courses, and for sure not on batchelor level like in the UK.

After the expert meeting

Which amendments, which improvements will survive is unclear yet. Also unclear is what kind of threats the new minister, Liesbeth Spies, wants to enforce in the new text. A lot of tactics will be needed in parliament and that is an aspect which worries me most. The cooperation between the political parties is far from optimal which creates opportunities for the minister……

Appendix

The former minister, Piet-Hein Donner, keeps a role, unfortunately. In his new job, vice-chair of the Council of State, he is the main advisor for the new minister on the Wob amendments and the draft for a new Wob.

It is even worse! The Netherlands is nothing more than an emerging democracy: This Council of State has also another role: in all administrative law questions it is also our High Court !!! Trias Politica? What would that be?

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