Instruction No. 39 of 25 June 1999 on public access to documents issued with a security classification
The Secretary General,
HAVING REGARD to the decisions adopted on 18 December 1998 by the Committee of Ministers;
CONSIDERING the need to define the practical arrangements for their implementation;
1. At their 641st meeting in September 1998, the Ministers’ Deputies adopted concerning public access to official documents of the Committee of Ministers and its subordinate bodies.
2. These decisions are intended to encourage the committees answerable to the Committee of Ministers to make their documents generally available so that the work of the Council of Europe is made known to the widest possible public.
3. This instruction, aimed principally at committee secretariats and SEDDOC staff, sets out the procedure to be followed for releasing classified documents to the public, particularly on receipt of specific applications for access to documents.
4. It should be made clear at the outset that, in accordance with the Deputies’ decision, the procedure described below does not apply to the following documents:
- “secret documents until ten years after their date of issue;
- minutes of the Ministerial sessions;
- records of meetings of the Ministers’ Deputies;
- Parliamentary Assembly;
- Partial Agreements;
- human rights cases;
- treaty bodies such as the European CPT, the Social Charter or the Advisory Committee to the Framework Convention for the Protection of National Minorities”.
5. Applications for access to classified documents should be made in writing to the Head of the Documentary Information Section of the Council of Europe (SEDDOC).
6. The SEDDOC will be responsible for dealing with applications. It will register them, ensure that the prescribed time limits are complied with and make available the documents to which access has been authorised.
7. The SEDDOC will process applications, firstly identifying the documents requested and then verifying that:
- the requested documents do in fact originate from the Committee of Ministers or from one of its subordinate bodies;
- the titles, references and dates supplied by the applicant are correct;
- the documents are not already public;
- the documents are not among those whose distribution is prohibited.
8. If the classified documents cannot be identified, the applicant should be asked to give further details and informed that the application as it stands cannot be met.
9. If the release of the classified document raises no difficulties (for instance, where already released), it will be released by the SEDDOC on its own authority.
10. If in doubt as to the possibility of releasing a classified document, the SEDDOC should consult the department which produced the document concerning the action to be taken on the application.
11. Any application made directly to a committee or to its Secretary should be referred to the SEDDOC. Where appropriate, the SEDDOC should be informed of the position which the committee intends to adopt.
12. According to the decision of the Committee of Ministers, under this procedure:
“The Secretariat will ensure that national interests are protected by checking each document and carefully considering any national positions that are represented. Access to a document may be refused in whole or in part where this is necessary to protect legitimate public or private interests, such as:
- the document was produced outside of the General Secretariat (e.g. by a consultant or a government) and the author has not given permission for it to be made available to the public ;
- the document relates to an unfinished work and disclosure might prejudice the outcome of the work;
- protection of privacy and of personal data;
- protection of international relations.”
13. Therefore, committee secretaries should henceforth:
- inform committees that documents produced by them are intended, subject to the aforementioned exceptions (paragraph 4), for release to the public;
- mark as “restricted” and “confidential” only those documents whose disclosure would prejudice the outcome of committee work;
- routinely place on meeting agendas an item concerning public access to committee documents;
- inform committee members that if they object to the disclosure of a document they should make their position known to the committee secretariat to enable it to take appropriate action, it being understood that persons applying for access to documents will be informed of the grounds for any complete or partial refusal;
- promptly inform the SEDDOC of the committee’s position regarding the requested document and of the grounds stated for refusing its release.
14. The SEDDOC will notify applicants of any refusal. In the event of a refusal, applicants must be sent a written reply as soon as possible, and within two months at the latest.
15. Within one year of the date of the written notification of refusal, applicants may request a review of that decision.
16. Requests for review are to be made directly the Secretary General. The Secretary General’s Private Office will re-examine the application, assess the reasons for the refusal, and reply directly to the applicant.
17. The SEDDOC will be notified of the decision and, where the initial decision is reversed, will provide the requested documents. It will inform the committee secretary concerned of the decision adopted by the Secretary General’s Private Office.
18. Regarding the classified documents already produced by committees in the past, in respect of which it was not possible to follow the present procedure, committee secretaries should invite members to indicate which classified documents they do not want to be released. If there is no objection on the part of the members, the classified documents produced by committees may be released to applicants and distributed as public documents.
19. Where documents produced by disbanded committees are concerned, enquiries should be made, within the Directorate from which the document originated, to the existing committee engaged in related activities.
Strasbourg, 25 June 1999
The Secretary General