Documents under Preparation
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.
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]
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.
You will find detailed country information that is not regularly updated in our Archive.