Article
14 of the 1789 Declaration
of the Rights of Man called for access to information
about the budget to be made freely available: "All
the citizens have a right to decide, either personally or
by their representatives, as to the necessity of the public
contribution; to grant this freely; to know to what uses
it is put."(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
Conseil d'Etat found in April 2002 that the right of administrative
documents is a fundamental right under Article 34 of the
Constitution.(2)
The
1978 Law
on Access to Administrative Documents provides for a
right to access by all persons to administrative documents
held by public bodies.(3) These documents
include "files, reports, studies, records, minutes,
statistics, orders, instructions, ministerial circulars,
memoranda or replies containing an interpretation of positive
law or a description of administrative procedures, recommendations,
forecasts and decisions originating from the State, territorial
authorities, public institutions or from public or private-law
organizations managing a public service." They can
be in any form. Documents handed over are subject to copyright
rules and cannot be reproduced for commercial purposes.
Public bodies must respond in one month.
Proceedings
of the parliamentary assemblies, recommendations issued
by the Conseil d'État and administrative jurisdictions,
documents of the State Audit Office, documents regarding
the investigation of complaints referred to the Ombudsman
of the Republic and documents prior to the drafting of the
health-organization accreditation report are excluded from
the definition of administrative documents. Documents that
are "instrumental in an administrative decision until
the latter has been taken" are not available until
the decision is made.
There
are also mandatory exemptions for documents that would harm
the secrecy of the proceedings of the government and proper
authorities coming under the executive power; national defense
secrecy; the conduct of France's foreign policy; the State's
security, public safety and security of individuals; the
currency and public credit; the proper conduct of proceedings
begun before jurisdictions or of operations preliminary
to such proceedings, unless authorization is given by the
authority concerned; actions by the proper services to detect
tax and customs offences; or secrets protected by the law.
Documents that would harm personal privacy, trade or manufacturing
secrets, pass a value judgment on an individual, or show
behavior of an individual can only be given to the person
principally involved.
An
ordinance was adopted in June 2005 to amend the 1978 law
to implement the EU Directive on the re-use and commercial
exploitation of public sector information (2003/98/EC).(4)
It also made a number of other changes to the law including
setting out the structure and composition of the Commission,
requiring bodies to appoint a responsible person, and allowing
access in electronic form.
The
Commission
d'accèss aux documents administratifs (CADA)
is charged with oversight.(5) It can mediate
disputes and issue recommendations but its decisions are
not binding. There is no internal appeals under the law
and all appeals are heard first by the CADA. It handled
over 5,400 requests in 2004, up nearly 10 percent from the
previous few years.(6) On average, around
50 percent of its recommendations are for the body to release
the information that it is withholding (47.9 percent in
2004) and 10 percent against the requestor. In twenty percent
of cases, the document is given before the CADA makes its
decision. Privacy is listed as the most significant reason
for upholding denials (around 50 percent of the time) followed
by preparatory documents. The bodies follow the advice around
70 percent of the time and refuse to follow the advice in
less than 10 percent of the cases. The CADA also issued
opinions in 452 cases under a 2002 law that allows for individuals
to access their medical records without needing it to be
sent to a doctor first.(7)
A
complaint must be decided by the CADA before it can be appealed
to an administrative court. A 2004 review by the CADA found
that only in 4 out of 155 cases did the courts have a different
opinion than the Commission.
Generally,
there seems to be low awareness of the law.(8)
The number of requests for review by the CADA has increased
slowly but substantially over the years (from under 1000
for the first few years to nearly 5,500 in 2004) indicating
some increased use of the law. The CADA in its 2004 report
admitted that it was difficult to make conclusions about
the law based on solely the number of requests and hoped
that the appointment of officials required in the new amendments
would make it easier to determine the use of the law. The
former head of the Commission Michèle Puybasset has
said that the largest problems stem from the failure of
bodies to recognize that the act applies to them or still
have traditional notions of secrecy and excessive delays
(80 percent of bodies do not meet the deadline).(9)
The
COE GRECO anti-corruption committee gave France a positive
review in 2004 for its transparency efforts:
The
transparency requirement is long-standing, statutory and
accompanied by adequate supervision. The access to administrative
documents commission (CADA) plays an important part and
makes sure that individuals are all entitled to see administrative
documents, subject to any necessary statutory restrictions.
The GET has received representative examples of CADA decisions
that have helped to reduce corruption by encouraging transparency
in government departments, other public bodies and private
bodies receiving public funding or serving the public
interest. The users' and administrative simplifications
office (DUSA) and the agency for developing e-government
(ADAE) are helping to introduce a more proactive information
policy based on greater use of new information technologies.(10)
A
1998 law sets rules on classification of national security
information.(11) The
Commission consultative du secret de la défense nationale
(CCSDN) gives advice on the declassification and release
of national security information in court cases. The advice
is published in the Official Journal.(12)
In
2004, the Code du Patrimoine largely rescinded and replaced
the 1979 Law on Archives. The Code makes files held in the
archives public after thirty years. Files containing information
relating to individuals' medical or personal life, international
relations and national security can be kept closed for varying
times up to 150 years.
A
2002 law allows for former adoptees and wards of the state
to access their records and find out the names of their
parents, relatives and their medical conditions.(15)
It created a new commission, the Conseil national pour l'accès
aux origines personnelles (CNAOP) to enforce the act. Prior
to the formation of the CNAOP in August 2002, the CADA issued
132 opinions.
France
signed the Aarhus Convention in June 1998 and ratified and
implemented it in July 2002.(16) It included
a declaration that "The French Government will see
to the dissemination of relevant information for the protection
of the environment while, at the same time, ensuring protection
of industrial and commercial secrets, with reference to
established legal practice applicable in France." The
ECJ ruled in June 2003 that the French government had failed
to adequately implement the 1990 directive.(17)
In July 2005, the European Commission announced that it
was taking legal action against France and six other countries
for failing to implement the 2003 EU Directive on access
to environmental information.(18)
4.
Ordonnance n° 2005-650 du 6 juin 2005 relative à
la liberté d'accès aux documents administratifs
et à la réutilisation des informations publiques.
http://admi.net/jo/20050607/JUSX0500084R.html
7.
Loi No. 2002-303 de 4 mars 2002 relative aux droits
des maladies et a la qualité du system de la santé
public.
8.
Anina Johnson, You Don't Know what you've Got until
it's Gone, Freedom of Information Review No 85, February
2000.
9.
Michèle Puybasset, The French Approach. Paper
prepared for the Bertelsmann Foundation's Freedom of Information
project.
10.
Second Evaluation Round Evaluation Report on France.
Adopted by GRECO at its 21 st Plenary Meeting (Strasbourg,
29 November - 2 December 2004). Greco Eval II Rep (2004)
5E.
16.
Ordonnance
n° 2001-321 du 11 avril 2001 relative à la transposition
de directives communautaires et à la mise en œuvre
de certaines dispositions du droit communautaire dans le
domaine de l'environnement. (JO du 14 avril 2001). http://aida.ineris.fr/textes/ordonnance/text8900.htm
17.
Commission
of the European Communities v French Republic, Case C-233/00.
Decision of 26 June 2003. Available at http://www.curia.eu.int/
18.
European
Commission, Public access to environmental information:Commission
takes legal action against seven Member States, 11 July
2005.
1)
Voice and Accountability: 1.24
2) Political Instability and Violence: 0.53
3) Government Effectiveness: 1.42
4) Regulatory Burden: 0.91
5) Rule of Law: 1.33
6) Control of Corruption: 1.44
