The Government Information Public Access Act (Government Information Act) ensures that everyone in the Netherlands can retrieve information from administrative bodies. When requesting information it is important to take into account the points and practical tips outlined below.
Is the Government Information Act applicable? Or does another regulation apply?
Before submitting an information request under the Government Information Act, it is advisable to check first whether the desired information must be made public under this legislation or whether another regulation applies.
The Government Information Act concerns the disclosure of requested information held by administrative bodies. It is, however, quite possible that other specific rules about the public nature of the desired information apply and the information will not be available under the provisions in the Government Information Act. An example is section 2.57 of the Procurement Act 2012, which, among other things, stipulates that a contracting authority cannot disclose confidential information that has been provided by an entrepreneur. It follows from this provision that if an economic operator designates the information provided by it to a contracting authority as confidential, the information cannot be disclosed. In this case, the Government Information Act will not apply.
Is the information already publicly available?
It is also advisable to check whether the information has been previously disclosed. The case law on this topic stipulates that the disclosure obligation under the Government Information Act does not relate to information that is already in the public domain. If the information is not public, a request under the Government Information Act can be made.
Where is an information request submitted?
A request based upon the Government Information Act is submitted to the administrative body that has the desired information. For example, this could include a minister, administrative bodies of provinces, such as provincial councils and administrative bodies of municipalities (e.g. the Mayor and Aldermen). The request can also be submitted to (private) institutions operating under the responsibility of an administrative body. Based on this criterion, the administrative court, for example, has ruled that the Government Information Act applied to ID-Lelystad BV, which is a private company. If the request is submitted (by mistake) to an administrative body other than where the documents are based, the administrative body is under a duty to forward the request to the correct authority.
Requirements regarding an information request
A request based upon the Government Information Act can be submitted in writing or verbally. The request must state the administrative matter or the related document which is related to the information request. An administrative matter concerns the policies of an administrative body, including preparation and execution. For example, documents related to how the Municipal Health Service (GGD) performs its duties, such as correspondence between the GGD and an alderman.
In the request, it is advisable to explain why the documents should be made public on the basis of the Government Information Act. If the request does not refer to the Government Information Act, the administrative body may not assess the request on this basis. There are also some other limitations. If, for example, information is requested in the context of a procedure before the administrative courts (section 8:42 of the General Administrative Law Act), in which this information is not intended to be publicly available, the Government Information Act will not apply. A reference to the Government Information Act does not guarantee that an information request is considered as a formal request based upon the Government Information Act by the administrative body.
Grounds for exemption and restrictions
The Government Information Act is based on the principle that information is public, unless there is an important reason for it not to be disclosed. As a result, certain restrictions are imposed on public access to information. The Government Information Act contains grounds for exemptions and restrictions on disclosure. The grounds regarding exceptions on disclosure fall into absolute and relative grounds.
If there is an absolute ground for refusal of a request, the information cannot be disclosed. This is the case when ‘the unity of the Crown’ is in danger, the security of the State is threatened, the information concerns confidential business and manufacturing data communicated to the government or when the information concerns special personal data.
Unlike the absolute grounds for exemption, the relative grounds for exemption must be weighed up against the general importance of public disclosure. The information cannot be disclosed if its importance does not outweigh the interest that the ground of exemption aims to protect. The Government Information Act includes an exhaustive list of interests for exemption, including the investigation and prosecution of criminal offenses and the respect for privacy.
Restrictions only apply to documents intended for internal deliberation. When the requested information has been drawn up for the purpose of internal deliberation, no information is provided on personal policy views in the internal deliberation. An example of this is a preparatory administrative policy document. In this case, there is no room for weighing up interests. However, an exception applies to environmental internal information. In the case of environmental information, the importance of the protection of the personal policy views is weighed up against the importance of disclosure. Furthermore, information about personal policy views can be provided in non-identifiable forms.
If the applicant of an information request does not agree with the decision of an administrative body to not or to partially disclose information, the applicant will have access to administrative legal protection. First an objection with the administrative body can be made, after which appeal and higher appeal may be possible.
This post is part of the “FAQ”-series. An overview of all posts in this series can be found here