The Open Government Act (Woo) will enter into force on 1 May 2022, replacing the current law (Wob). The aim of the new law is to create a more transparent government that actively discloses information. The changes contained in the new law, especially in terms of active disclosure, are a significant departure from the current regime, where information has been mostly disclosed on request. That is not the only change though: there will be new exceptions to disclosure, a shorter decision-making period, and a central platform where all information is made public. In addition, the new law will apply to a wider range of public authorities. Under the new act, private companies will be asked more often to respond to intended disclosures. The new regime will not only apply to new documents, but also for documentation which is already in the possession of administrative bodies.
The right to access public information is an essential component of a properly functioning democratic society. The new law casts a wide net in terms of which public bodies are subject to disclosure requests, with the open government rules applying to administrative bodies including ministers and those affiliated with municipalities, provinces, water boards and public-law organisations. The new law also lists specific public bodies which are subject to information requests including, for example, the upper and lower houses of parliament, the Council for the Judiciary, the Council of State (except for the Administrative Jurisdiction Division), the Court of Audit, and the National Ombudsman.
While broader in scope, the new law does have some limitations as to which public bodies are covered. Like the current regime, it will not apply to financial regulators AFM and DNB (at least not for the next three years) since the disclosure regime for both of these regulatory bodies is included in other legislation. Competition authority ACM also falls outside the scope of the new open government rules.
Extension of the scope to semi-public entities, as originally intended, is not included in the new law.
Proactive disclosure of public information
Compared to the current regime, the new law assumes a specific general duty to actively disclose certain information on public policy, preparation, implementation, enforcement and evaluation. Since this can involve a great quantity of information, the legislature chose to formulate this duty in light of the feasibility of sharing such information – the new law calls this duty "obligation of effort".
Another novel feature is a list of specific information that should be disclosed. This list includes covenants, agreements between governments and one or more counterparties, and all public authority decisions. There are several exceptions, such as punitive sanctions and tax decisions. Reparatory sanctions for violations of, for example, environmental law or emissions are also subject to disclosure.
A decision on whether to disclose information (either in whole or in part) is a formal administrative law decision subject to objections and appeal. Before publishing information, the authority must ask all stakeholders for their views on the intended disclosure. The response time is short: only two weeks. The decision of whether to disclose should be made in accordance with the refusal grounds as set out in the new law (see below).
A special platform has been established for disclosing information.
Disclosure of public information on request (passive disclosure)
Requirements for passive disclosure have not changed: anyone can submit a request – including online – to an administrative body for information without demonstrating a specific interest in this information. The information requested can be submitted to the applicant in written form or in another type of recorded data form which was made available to an administrative body that falls under the scope of the new law.
The deadline for deciding on the request has been shortened to four weeks. This deadline can be postponed by two weeks (instead of the current four weeks). If an interested party has been asked for its response, the deadline will be suspended until two weeks after the response was received. Periodic penalty payments do not apply if deadlines have not been complied with. If an interested party objects to disclosure, the information will not be disclosed until two weeks after the decision to (partly) disclose the information. A similar regime currently exists. If an interested party starts injunction proceedings, this suspends the disclosure process.
Exceptions to disclosing public information
Similar to the current regime, the new law has absolute and relative exceptions to the obligation of disclosure. Absolute exceptions do not require that non-disclosure be weighed against the general interest of public access to government information: disclosure can be simply refused on these grounds. Relative exceptions require a weighing of interests: the predefined interest of disclosure against the interest protected by the exception ground. In addition to these exceptions, disclosure may be refused in the case of personal policy views (see below).
The absolute exceptions are similar to those under the current regime:
- the unity of the Crown/government
- the security of the State
- confidentially shared business and manufacturing information
- personal data.
What is clear is that confidentially shared business and manufacturing information is an absolute exception and cannot be disclosed under any circumstances. The original intention was to make this a relative exception, but that suggestion was ultimately scrapped.
Disclosure of other competition-sensitive and manufacturing information can also be refused on the basis of the relative exceptions (see below) – but only if the results of a balancing of the interests so directs. What is key then is whether information was shared confidentially or not. In general, this is evident if there is an explicit declaration of confidentiality. However, confidentiality can also be assumed by the party that provided the information to the administrative body. If confidentiality cannot be established, the absolute exception does not apply and refusal can only be based on the negative outcome after a balancing of interests. Disclosure of confidentially shared business information containing information on emissions into the environment, however, cannot simply be refused. In that case, non-disclosure can only be justified after a balancing of interests.
Compared to the current regime, the new law adds a few relative exceptions, with the protection of the environment and the proper functioning of governmental bodies and the State being some of the most important additions. Other exceptions include situations involving:
- international relations of the Netherlands
- economic or financial interests of the State
- investigation and prosecution of criminal offences
- inspection, control and supervision
- respect for privacy
- other competition-sensitive business and manufacturing information
- protection of the environment
- security of persons and companies and the prevention of sabotage
- proper functioning of governmental bodies and the State.
The interest protected by the exception ground should explicitly be weighed against the predefined interest of disclosure. For information requests that concern documents that are over five years old, the administrative body must give reasons why the interests behind the relative exceptions outweigh the general interest of public access, despite the lapse of time. This is a new requirement.
Under current law, there is an exception where disclosure would lead to a "disproportionate disadvantage", but it is a separate refusal ground, often used in combination with other exceptions (such as the exception for business and manufacturing information). Under the new law, the legislature has expressed that this ground can only be used in "exceptional cases", where interests other than those protected by absolute and relative exceptions are at stake. In other words, the disproportionate disadvantage exception can no longer be invoked as a subsidiary ground alongside one or more of the exceptions.
However, if the court rejects all exceptions, it can still order the administrative body to decide anew, based on the disproportionate disadvantage exception. In our opinion, this is unlikely to contribute to efficient dispute resolution. But only time will tell: developing case law will eventually show us how strictly the courts apply this exception in the future.
Personal policy views
The current regime supports the non-disclosure of personal policy views of civil servants and officials. The new act does not alter this basic rule, protecting public bodies from disclosing their contributions to internal deliberations. In the past, the courts had ruled that deliberations involving an external party (for example, deliberations with a lawyer not engaged by that public body) were not necessarily "internal" if the external party did not have a personal interest in taking part in the deliberations. This jurisprudence will still be valid under the new regime. The protection serves the official, not the administrative body that may or may not use the personal policy opinion. Disclosure of anonymised personal policy statements is allowed.
In a departure from the current regime, the new act describes statements that are not considered personal policy statements: official opinions, visions, positions and considerations for internal deliberations other than facts, forecasts, policy alternatives, the consequences of a particular policy alternative, or other elements of a predominantly objective character. In this way, the new act is stricter than the current regime. External advising will generally not be exempted from disclosure. Moreover, the new act permits disclosure of personal policy opinions when this is in the interest of good and democratic government.
Compelling public interests override exceptions
An administrative authority may disclose information, even if an absolute or relative exception applies, where there are compelling public interests - such as public security, public health, the environment, or protection of the democratic legal order. This is a new element compared to the previous regime.
Provision of and access to non-public information
A different disclosure regime applies to information requests made by someone who has a special interest or is a researcher or journalist. Information can be disclosed that would not normally be disclosed to the public because exceptions to disclosure apply. Again, this is a novel element.
Contact person and instructions
The new law requires all authorities that fall under its scope to appoint one or more contact persons to answer questions about the open government regime.
On 1 April 2022 the government published government-wide instructions for handling open government requests.
The new law enters into force on 1 May 2022. There is no transitional regime. All decisions taken as of that date will be based on the new regime – including where the request was filed before May 1 2022. This also means that decisions made under the current regime (where objections have been filed) need to be made on the basis of the new regime as of 1 May 2022.
As regards the new list of specific information that should be actively disclosed, the new law provides that this part of the regime will enter into force at a later stage (expected: 1 January 2023).