Especially in Britain given our intended imminent departure from the EU, it is clear that the Council of Europe has crucial significance to our continent and indeed the world. Founded as far back as 1949 and with 47 Member States with over 800 million people, it focuses on some of the most difficult and controversial issues concerning human rights, democracy and the rule of law.
Whilst best known for the European Convention on Human Rights, it has actually concluded hundreds of binding legal Conventions and the carried out of scores of cooperative programmes in areas as diverse as minority rights, children’s rights, the preservation of environmental and cultural heritage, media policy, data protection and the fight against cybercrime. Such broad and critical activity comes with a deep responsibility, not least to be transparent in its operations to Europe’s citizens. Moreover, as the Council of Europe itself has repeatedly emphasised, enabling access as of right to archived records of consultation and decision-making constitutes a core and essential aspect of such transparency. Unfortunately, however, this has been sorely lacking in the Council of Europe for some time.
As the Council of Europe Committee of Ministers’ Recommendation on a European Policy on Access to Archives states, archives not only “ensure the survival of human memory” but “a country does not become full democratic until each one its inhabitants has the possibility of knowing in an objective manner the elements of their history”. Indeed, access to the history (and sometimes even the deep history) of collective decision-making can often be more central to the sustaining of genuine accountability and democratic control of complex policy areas than access to up-to-the minute information and documentation. Moreover, countervailing interests to transparency such as ensuring the confidentiality of decision-making are generally much less weighty as regards historic as opposed to contemporary records of matters of public concern. Access to “public archives” is therefore “a right” which in a “political system which respects democratic values … should apply to all users regardless of their nationality, status or function.”
Given all this, it is a matter of profound concern that for over three and a half years, the Council of Europe’s own archives have essentially been closed to the public. (I say essentially as I am aware that access to the archives was enabled for an expressly limited number of researchers for a single week only in May 2016). This reality was originally announced in 2014 owing to “temporary reduction in staff”, “valid until a return to full service is possible”. However, as with so many troubling developments, this quickly became permanent, with a bland statement on the website now stating that the “Information Life Cycle Division (DIT-ILCD) enables [only] internal users to consult the physical archives, on request”.
This approach is particularly troubling as it is completely counter to the Council of Europe’s own published Rules and Procedures. Thus, in 1981 the Committee of Minsters established a general rule that all Council of Europe documents “held in the archives of the Council of Europe shall be open to public access” if these documents are over 30 years old. In 2001 this same body went further by establishing such access rights for many documents immediately (if unclassified), after one year (if “restricted”) or after ten years (if “confidential”). It is frankly astonishing that an organisation so formally committed to the human rights, democracy and the rule of law is so willing to ignore such clear rules and procedures that seek to apply them practically to its own operations, and not just over a short period but rather over many years.
Unfortunately, even before these drastic moves, archival access was not commensurate with the need to ensure proper openness in the Council of Europe’s operations. To the contrary, access to the physical archives was confined to a mere three hours a day (9am to 12pm) Monday to Friday, with the number of documents which could be ordered for scanning and remote delivery strictly limited. However, now the physical archives are definitely closed to anyone external to the Council of Europe itself, with those who ask for access to a document remotely receiving a pro forma reply which states that the “Archives Helpdesk is no longer available to reply to external requests”.
The Council of Europe appears to find this satisfactory on the basis that “most” of its “official texts” have been made available on its website. However, I know from my own research in the area of data protection that whole series of documents concerning the drafting and interpretation of binding legal instruments such as the Data Protection Convention are simply not available in this way. Moreover, data protection is, as noted above, just one small part of the Council of Europe’s work and there is, unfortunately, no reason to think that this lacunae of openness is any different in many other areas.
As the Council of Europe Convention on Access to Official Documents states, “all official documents are in principle public and can be withheld subject only to the protection of other rights and legitimate interests”. This recognises the absolute centrality of openness to ensuring the legitimacy of the work of public authorities including the Council of Europe itself. That openness can only be obtained by ensuring proper public access to its archived documents, which constitute the collective memory not only of the organisation itself but of all European people. Regrettably, in contradiction to its own rules and procedures, such openness has been manifestly lacking for some time. It can, therefore, only be hoped that this important body will address this serious failure as a matter of urgency.
David Erdos is Deputy Director of the Centre for Intellectual Property and Information Law and Senior Lecturer in Law and the Open Society, University of Cambridge.
This post was originally published on openDemocracy and is reproduced with permission and thanks.