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Documents under Preparation

last modified Sep 10, 2013 12:00 AM

Overview

In many countries, “documents under preparation” or “documents during the internal preparation or examination of a matter” are excluded from the coverage of the ATI law or other disclosure requirements. The purpose of excluding such documents is to prevent the notepad from being pulled away from under the civil servant’s pen, so to speak. This is a legitimate concern. However, many involved with ATI regimes believe that the concern is better dealt with through the regime of exceptions than through a narrowing of the regime’s scope of coverage.  The danger of excluding unfinished documents at the definitional level is, in the first place, that the public interest override will not apply so that these documents will be subject to automatic withholding even where there is a very strong public interest in their disclosure, as in the case of draft policies or decisions of public bodies. Often, there is a strong case that such documents should be available for public discussion before they have been finalized. Second, this definition may be abused, for example by claiming that documents which are always under preparation, such as databases, fall outside the access regime.

Dealing with unfinished documents under the regime of exceptions (rather than exclusion from the scope of coverage) ensures that the public authority seeking to withhold the document in question must weigh whether or not disclosure would cause actual harm, or there is an overriding public interest in disclosure, and must state any reasons for refusal in writing.

India’s Right to Information Act provides a good model in this respect. The Act contains neither an exclusion nor an exception for documents under preparation or pending the conclusion of a decision-making process. Instead, the Act requires that all public authorities publish all relevant facts while formulating important policies or announcing decisions that affect the public.

In 23 of 26 European countries surveyed, the definition of information includes preparatory notes and file notations, although in Latvia and Moldova, frequent users of the law note that they are often not provided in practice. Reflecting this widespread practice, the European Convention on Access to Official Documents makes clear that it applies to “documents under preparation.”

The term “preparatory document” or “document under preparation” is used in two slightly different ways. The term may refer to a document that is (a) unfinished in the sense that it is still being drafted; or (b) used as background to, or for purposes of, taking a decision or developing policy. This dual use is noted by the Explanatory Memorandum to Council of Europe Recommendation 2002(2) which states:

In member states, there are different traditions and practices concerning the qualification of documents as “official documents”. In principle, unfinished documents are not covered by this notion. Furthermore, in some member states, documents which contribute to the decision-making process (for instance, opinions, memoranda, etc.) are not considered as official until the decision to which they refer is taken. However, in other member states, documents can be made available before the decision for which the document is being prepared is taken, in particular to enable participation in the decision-making process.

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Unfinished documents

In 18 of 26 European countries surveyed, the definition of information subject to access includes documents under preparation in the sense of unfinished documents. Indeed, in a number of countries it is clearly established in law and practice that such documents fall under the broad definition of information that is subject to the law. In the UK, for example, the definition of information includes documents under preparation or draft documents.

In at least two of these 18 countries, however, there is nevertheless an exception for information that is not complete and would lead to an erroneous interpretation of the document. In Belgium there is an exception for documents that are not final or incomplete and where disclosure could lead to erroneous interpretations. Macedonia has a similar provision with an exception for information contained in a document that is being compiled and still being harmonized within an information holder, the disclosure of which would cause misunderstanding of the contents of the document in question

A further five countries specifically exclude unfinished documents: France, Montenegro, Netherlands, Slovenia and Sweden.

In Montenegro, for example, only the legislature has the obligation to supply draft documents.

In the Netherlands, unfinished documents need not be released but there is nevertheless the possibility that a judge may order the release of such information should the institution seem to be taking an undue time to finalize them.

Article 2 of France’s 1978 ATI law states: “The right to delivery shall apply to completed documents only. It shall not apply to documents that are instrumental in an administrative decision until the latter has been taken.” This exemption covers two types of documents: (a) “preparatory documents” used as input to a decision which has not yet been taken (there is one exception to this rule: when the final decision relates to the environment, preparatory documents such as impact studies can be communicated); and (b) unfinished documents still being prepared.

Concerning the remaining three countries surveyed -- Denmark, Moldova and Norway --  information was either not supplied or not clear. [more info needed re these countries]

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Documents which contribute to the Decision-Making Process

In some countries, documents may be excluded from coverage under the ATI regime if they are used as background for an administrative decision, policy development or other internal process. Exceptions for such documents are sometimes justified by reference to the notion of a need for “space to think” within a public authority as well as the protection of more formal decision-making processes.

At least 19 of the 26 European countries surveyed do not exclude preparatory documents from the scope of coverage of ATI laws, but instead protect internal processes through the regime of exceptions. This has the advantage of leading to a narrower scope of limitation and also brings the information within the scope of the public interest override.

Only in France and Sweden is it clear that such information is excluded from the definition of information. In other countries, the exception applies only until the decision has been taken. In some countries, the scope of the exception is limited to certain types of preparatory documents. In yet other countries, specific harm-based exceptions have been crafted.

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Archive

You will find detailed country information that is not regularly updated in our Archive.

Relevant cases

 

Relevant Cases

Title:Country:Year:Court / Arbiter:
Access Info Europe v. Council of the European Union European Union 2011 International / EU The Council infringed Regulation No 1049/2001 by denying disclosure of information relating to the identity of delegations of European Member States making policy proposals under an Article 4(3) exemption to the Regulation because the risk that delegations would refrain from submitting written proposals does not sufficiently undermine the decision-making process to justify the refusal of access to the requested information.
Canada (Minister of Environment) v. Canada (Information Commissioner) Canada 2007 Appellate The Minister of Environment may not deny access to discussion papers on the safety and regulatory treatment of a fuel supplement under Section 21(1)(a) (advice and recommendations), (b) (consultations and deliberations) and Section 23 (solicitor-client privilege).
Ciarán Toland supported by Sweden, Finland and Denmark v. European Parliament European Union 2011 International / EU Parliament may not refuse to disclose audit reports unless it explicitly determines that (i) disclosure of a requested document would specifically and actually undermine a protected interest, and there is no overriding public interest justifying disclosure, and (ii) the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical.
In re Constitutionality of various acts of primary and secondary legislation related to archives and classification regime Hungary 1994 Constitutional Freedom of scientific life, the right to protection of personal data and the right to freedom of information need to be balanced against one another. The state is obliged to guarantee access to documents of communist ruling parties for scientific research. Freedom of information and scientific life cannot be regulated by secondary legislation. Only people holding public power can classify information as a state or official secret.
Department for Business, Enterprise, and Regulatory Reform v. Information Commissioner and Friends of the Earth United Kingdom 2008 First instance Information communicated between governmental officials and lobbyists is subject to disclosure under the Freedom of Information Act of 2000, as there exists a strong public interest in ensuring that bribery or corruption does not take place in such interactions and that individuals have an opportunity to put forth alternative positions to those being advanced by lobbyists.
Department for Education and Skills v. Information Commissioner and The Evening Standard United Kingdom 2007 First instance Section 35 of the Freedom of Information Act of 2000 confers a qualified, not absolute, government policy formulation exemption. Such information is public if there is an overriding public interest in favour of disclosure.
Department of Health v. Information Commissioner and Rt Hon John Healey MP and Nicholas Cecil United Kingdom 2012 First instance FOIA exemption on disclosure of information relating to the formulation or development of government policy can be outweighed by a public interest to disclose. Public authority must release risk registers evaluating health policy if the request is made when policy consultation and formulation has been largely completed, but not during a period of consultation and when the register includes more sensitive policy information.
European Commission v. Agrofert Holding European Union 2012 International / EU EU institutions may rely on a general presumption that disclosure of documents exchanged between the European Commission and undertakings in the course of merger control proceedings undermines both commercial interests and the objective of investigative activities. The applicant may nonetheless demonstrate overriding public interest in disclosure. The presumption does not apply to internal EU documents once the proceedings are closed.
Gabi Thesing and Bloomberg Finance LP v. European Central Bank European Union 2012 International / EU The European Central Bank must refuse access to a document if there is public interest in non-disclosure due to the potential impact on the financial policy of the Union or a Member State. EU law does not provide for weighing that public interest against an “overriding public interest in disclosure.”
IFAW Internationaler Tierschutz-Fonds gGmbH v. European Commission European Union 2012 International / EU When a person is denied access to information originating from a Member State on the basis of that state’s objection, the Court has a duty to consult disputed documents in camera to assess whether access to them could validly be refused on the basis of the exceptions provided for in Regulation 1049/2001.
In re Constitutionality of Acts LXIII of 1992 and LXV of 1995 Hungary 2004 Constitutional Information created for internal use and in connection with the preparation of decisions could be withheld but only if legislation were amended to provide sufficient guarantees against abuse, namely, to ensure that access should not be restricted after a decision has been made, there must be an opportunity to challenge a decision to withhold information on the merits as well as on procedural grounds, the period for restriction must be limited, and the law must clearly define the restricted category of information.
Kline v. Official Secretary to the Governor General Australia 2013 Supreme Section 6A(1) of the Freedom of Information Act 1982 excludes from disclosure documents held by the Official Secretary to the Governor-General unless they relate to “matters of an administrative nature,” which does not include documents relating to substantive powers.
Milner v. Department of the Navy United States 2011 Supreme FOIA Exemption 2, which protects from disclosure material “related solely to the internal personnel rules and practices of an agency” does not apply to military explosives data and maps because Exemption 2 covers strictly human resource matters.
Ministry of Defense v. Gisha Legal Center for Freedom of Movement Israel 2011 Supreme The Ministry of Defense improperly refused to disclose a document relating to the provision of food to the Gaza strip. While the document might have contained information relating to internal deliberations, the ministry failed to provide concrete reasons why the information was sensitive and failed to consider the possibility of partial disclosure.
O’Connor v. Nova Scotia Canada 2001 Appellate The substance of Nova Scotia Provincial Cabinet deliberations with respect to government programs that are closed constitutes public information not protected by Cabinet privilege. However, programs that are not closed are protected by privilege, to the extent a decision on their continuity has not been implemented or made public and Cabinet has not waived such a privilege.
Office of Government Commerce v. Information Commissioner United Kingdom 2008 Appellate In the absence of a public interest in preserving confidentiality, there is a presumption of public interest in the disclosure of information held by public authorities.
President of the Republic of South Africa. v. M & G Media Ltd. South Africa 2010 Supreme Under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a report of the 2002 Zimbabwe elections prepared by two judges for President Mbeki were insufficient to justify non-disclosure.
Qoboshiyane NO v. Avusa Publishing Eastern Cape (Pty) Ltd. South Africa 2012 Appellate If information falls under one of the exemptions from disclosure under PAIA, it must nevertheless be released if an overriding public interest in disclosure exists. In a case of maladministration of municipal funds, the public interest overrides any harm that may result from disclosure and disclosure is mandated.
Rob Evans v. Information Commissioner United Kingdom 2012 Appellate Advocacy correspondence between the heir to the throne and government ministers does not fall within constitutional convention and does not deserve special protection; correspondence in which interests of charitable enterprises are promoted concerns matters affecting public policy and the public purse and thus there is a strong public interest in its disclosure that in this case outweighs the interests in secrecy.
S.P. Gupta v. President of India India 1981 Supreme Non-disclosure of information is justifiable only if disclosure would be injurious to the public interest, and injury to the reputation of a public official should not be a consideration.
Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities European Union 2008 International / EU The Court annulled the decision of the Council that refused access to a document containing the opinion of the Council's legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States.
Sweden v. European Commission and MyTravel Group Plc. European Union 2011 International / EU Where an EU institution refuses to provide access to a document, it is under a duty to explain how access to that document might actually and specifically undermine the interest protected by the exception in Regulation 1049/2001 upon which the institution relies.. The requirements for protecting the decision-making process are less acute when the process is closed, rather than ongoing.