Greater access to public documents for journalists? Not so fast, my friend

Article 32 of the Constitution guarantees public access to administrative documents as a general rule. Among exceptions to that rule is Article 6 (§2) 2° of the Law of 11 April 1994 on the transparency of the public administration (the “Law”) that allows a relevant public authority to refuse access to a document where disclosure would undermine a statutory secrecy obligation.

On 24 March 2017, trying to take advantage of his professional position, a journalist asked for a copy of the video pictures of a car that drove too fast in Antwerpen the day before, and notably in the Meir pedestrian area. However, the police chief refused such a request because of the secrecy of the criminal investigation. The journalist then seized the Commission on Access to and Reuse of Administrative Documents (the “Commission”), arguing that exceptions to Article 32 of the Constitution are not absolute and that the police should have balanced the interests at stake in favor of the public interest.

In its opinion of 24 April 2017, the Commission found that these video pictures are public documents of personal matter, i.e. information that contains a rating or a value judgment of a named, or easily identifiable, individual or the description of a behavior that could certainly harm that person if made public. As a result thereof, one must demonstrate a specific interest to have access to such documents. According to the Commission, this was the case since these video pictures relate to events that took place in public areas and are of general interest.

However, the Commission also found that the statutory secrecy provisions set out in Articles 28 quinquies §1 and 57 §1 of the Code of Criminal Procedure preclude the police from disclosing these documents and that no balance of interests is required in the current case. Only the public prosecutor may disclose information on ongoing investigations, as the case may be. Also, according to the Commission, such a disclosure would have hurt the fundamental right to a fair trial set out in Article 6 of the European Convention on Human Rights (which is also an exception set out in Article 6 (§1) 2° of the Law) and, likely, Article 6 (§1) 5°  of the Law, i.e. the detection or prosecution of criminal offenses.

Normally, once the opinion of the Commission is made available, the administrative authority concerned must notify within 15 days whether it confirms or amends its original decision. If the refusal is upheld, the applicant may then lodge an appeal before the Council of State.

The opinion of the Commission (2017-29) can be found on www.ibz.rrn.fgov.be/fr/commissions/publicite-de-ladministration/introduction/