Article
32 of the Constitution was amended in 1993 to include a
right of access to documents held by the government:
Everyone
has the right to consult any administrative document and
to have a copy made, except in the cases and conditions
stipulated by the laws, decrees, or rulings referred to
in Article 134.(1)
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: N/A
Source:
UN Development Program, Human Development Reports
Data
The
constitutional right is implemented on the federal level
by the 1994 Law
on the right of access to administrative documents held
by federal public authorities.(2) The
act allows individuals to ask in writing for access to any
document held by executive authorities and can include documents
in judicial files.(3) Government agencies
must respond within thirty days. Each decision must include
information on the process of appealing and name the civil
servant handing the dossier. The law also includes a right
to have the document explained.
There
are three categories of exemptions. In the first category,
information must be withheld unless the public interest
in releasing it is more important. This applies to documents
relating to public security, fundamental rights, international
relations, public order, security and defense, investigations
into criminal matters, commercially confidential information
and the name of a whistleblower. The second category provides
for mandatory exceptions for personal privacy, a legal requirement
for secrecy, and the secrecy of deliberations of federal
government authorities. The third category provides for
discretionary exemptions if the document is vague, misleading
or incomplete, related to an opinion given freely on a confidential
basis, or the request is abusive or vague. The two first
categories of exceptions are applicable on all administrative
bodies, the third category applies only to federal administrative
bodies. Under the 2000 amendments, documents relating to
environmental matters cannot be withheld under exemptions
in the first category and those in the second category made
secret under another law. Documents obtained under the law
cannot be used or distributed for commercial purposes.
Citizens
can appeal denials of information requests to the administrative
agency which asks for advice from the Commission d'accès
aux documents administratifs. The Commission issues advisory
opinions both on request and on its own initiative. The
Commission received 116 requests for advice in 2004 and
81 in 2005. Requestors can then make a limited judicial
appeal to the Counsel of State. There were approximately
ten appeals in 2004 and 2005.
The
Act also requires that each federal public authority provide
a description of their functions and organization. Each
authority must have an information officer.
In
a report on the implementation of the law sent to the Council
of Europe, the Foreign Ministry reported a number of problems
with the act:
The
protection of the right of access to the official documents
is not ensured enough though the appeals mechanism.
People
are not familiar enough with the right of access.
Inadequate
training of civil servants.
The
existence of absolute exemptions.
The
existence of the specific regulations which organize the
right of access for specific types of documents.(4)
An
interdepartmental working group is currently developing
a bill to implement the EU Directive on the re-use and commercial
exploitation of public sector information (2003/98/EC).
The law is expected to amend the 1994 Act. There are separate
efforts in the regions to implement the directive.
Belgium
signed the Aarhus Convention in 1998 and ratified it in
January 2001. The 2000 amendments to the federal access
to information act allow for access to environmental information.
In 2003, 7,000 requests for information were made to the
Info-Environmental Department.(5) In July
2005, the European Commission announced that it was taking
legal action against Belgium and six other countries for
failing to implement the 2003 EU Directive on access to
environmental information.(6) As of May
2005, the government reported that it was drafting a bill
to transpose the Directive into law.(7)
The
Parliament adopted the Law
on Security Classification and Authorisations in 1998.(8)
It creates three levels of classification: Top Secret, Secret
and Confidential. The law exempts classified information
from access under the 1994 Act.
The
Law
on Protection of Personal Data gives individuals the
right to access and to correct files about themselves held
by public and private bodies.(9) It is
enforced by the Data
Protection Commission.(10) For administrative
documents that contain personal information, access is handed
under the 1994 access law.
There
are also laws implementing access rules at the regional,
community and municipal levels.(11)
1.
Constitution of Belgium, 1994. http://www.uni-wuerzburg.de/law/be00000_.html.
See Frankie Schram, "Executive Transparency in Belgium",
Freedom of Information Review, No 95, October 2001. According
to an analysis by Professor Frankie Schram, this was broadly
envisioned in the traveaux préparatoires to include
a wide range of documents in any form held by and executive
authority.
4.
Council of Europe, Compilation of the replies to the
questionnaire on the implementation of Recommendation Rec(2002)2
on access to official documents, DH-S-AC(2004)001 add bil
16 September 2004. (Unofficial translation).
5.
UNECE Implementation Report - Belgium, ECE/MP.PP/2005/18/Add.4,
9 May 2005.
6.
European Commission, Public access to environmental
information:Commission takes legal action against seven
Member States, 11 July 2005.
1)
Voice and Accountability: 1.35
2) Political Instability and Violence: 0.94
3) Government Effectiveness: 1.71
4) Regulatory Burden: 1.25
5) Rule of Law: 1.47
6) Control of Corruption: 1.53
