Under the Open Government Act (Wet open overheid or Woo), anyone may request the disclosure of documents held by an administrative authority. That administrative authority must then disclose the requested information, unless one of the exceptions under the Woo applies.
A Woo request may also relate to information on a business that is held by a public authority (e.g. a Ministry, a local government or an authority such as the NVWA (Netherlands Food and Consumer Product Safety Authority), the ILT (Human Environment and Transport Inspectorate) or the NZa (Dutch Healthcare Authority)). It could include correspondence between the business and a public authority, internal emails between officials regarding the business, reports, memos, etc.
Disclosure of such documents may have serious adverse consequences for businesses, such as reputational damage, financial loss (competitive disadvantage) or an invasion of the privacy of managing directors and employees of the business. To prevent this, the public authority must request the business in question to present its views before the requested information on the business is disclosed. The authority decides on the basis of those views whether or not to publish the requested information.
Has your business received a letter in this regard and do you not want certain information on your business to be disclosed? In this blog we briefly explain what you can do in such a case.
What is the Open Government Act?
The basic principle is that the government must be transparent, partly in light of the notion that citizens should be able to monitor the government. The possibility of requesting or disclosing government information is therefore not new. That was already possible under the Wet openbaarheid van bestuur (Government Information (Public Access) Act), the predecessor of the Woo. The Woo offers everyone the possibility of gaining access to information held by the government, unless grounds for exception so oppose. The requesting party need not state a reason. The reasons are diverse in practice: journalists may need documents for a publication, citizens may need them to gain insight into plans of the municipality, for instance, and companies may request documents to prepare for legal proceedings.
What information may be requested and by whom?
Public authorities hold information that originates from or relates to businesses for a variety of reasons. That information may have been obtained, for instance, from applications for permits or subsidies, or may involve communications on current or future government policy. Such information may also include a business plan or other financial data obtained, for instance for tax purposes. Many business data are also collected in the context of governmental supervision. All such information may be requested by filing a Woo request and must, in principle, be disclosed.
It makes no difference how the information has been recorded: any written document or other set of recorded data that, by its nature, relates to public duties may be requested. This includes emails, memos, photos, videos and notes, as well as WhatsApp messages and text messages. Draft documents also fall within the scope of the Woo. The Advisory Board on Public Access and Information Management even recommends that “work-related WhatsApp and text messages” of public administrators be retained “in perpetuity”, and WhatsApp and text messages of senior officials for five or ten years.
A number of exceptions apply to the principle of public access. The Woo sets out what is known as ‘absolute’ and ‘relative’ exceptions in Article 5.1(1) and (2). If an absolute ground for exception is invoked, the information may not be published. If a relative ground for exception is invoked, the interests involved must be weighed. The administrative authority deciding on the Woo request then determines whether the public access interest sufficiently outweighs the business’s interest in confidentiality, for instance.
What procedure applies to a Woo request?
The disclosure of information takes place by means of a request submitted to the administrative authority (government agency) that holds the requested information. The administrative authority checks its files and databases to see what relevant information it has. It is then assessed which information falls within the scope of the request and whether that information may be disclosed. For that purpose the administrative authority must check whether an absolute or relative ground for exception from Article 5.1(1) and (2) of the Woo applies.
The administrative authority itself usually first checks whether there are grounds for an exception and will redact that information. Not all administrative authorities do so with the same precision or have the right knowledge to properly assess the sensitivity of information. Some administrative authorities merely redact personal data. The business itself must therefore always carefully check whether the documents in question contain information that should be exempt from disclosure.
How and when can I prevent the disclosure of documents?
The administrative authority is required by law to give interested parties that are likely to object to disclosure the opportunity to submit an opinion (Article 3.1(3) Woo). For that purpose, it will state in a letter, for instance to the business, what information it intends to disclose. The administrative authority will then also state what information, if any, it will already be redacting of its own accord.
If you believe that certain information should be redacted, you must state your reasons, based on the absolute and relative grounds for exception under the Woo. Please note that, as a rule, the time limit for submitting an opinion is only two weeks. That period may be insufficient, or even far too short, for instance if a great many documents are involved, if internal coordination within the business is required, or if part of the time limit falls in a holiday period. It is then important to request the administrative authority as soon as possible to extend the time limit.
If no opinion is submitted within that period, the administrative authority will assume that the business does not object to the disclosure. Although, formally speaking, it is still possible to object to the decision to disclose the documents after the fact, this is of no use in practice, because the documents will already be in the public domain by then.
Grounds for exception and personal policy viewpoints
As stated above, the Woo sets out absolute and relative grounds for exception in Article 5.1(1) and (2). No weighing of interests takes place in the case of an absolute ground for exception, but it does in the case of a relative ground for exception. The administrative authority then determines whether the interest of public access sufficiently outweighs the interest of the business, for instance. Please note that if the request relates to environmental information or emission data, a weighing of interests will always take place, regardless of the grounds for exception.
The most relevant absolute and relative grounds for exception regarding the disclosure of business and manufacturing data are addressed below, with reference to some examples from case law. It should be noted that Woo cases are often very casuistic in nature. It therefore depends on the circumstances of the case whether the statutory grounds for exception can be invoked in respect of certain information.
Business and manufacturing data communicated to the government confidentially (Article 5.1(1)(c))
It follows from case law that the definition of the concept of business and manufacturing data must be interpreted restrictively. Data must be involved from which items of information can be interpreted or derived regarding technical management or the production process, or regarding the sale of products or the customer and supplier base. This is an absolute ground for exception.
A further requirement is that these data have been confidentially communicated to the public authority by a natural person or legal entity. First and foremost, this applies to information that was expressly identified as confidential, as well as information that may reasonably be deemed to be confidential.
It follows from case law that business and manufacturing data in any event include the following:
- Proprietary clinical trials and literature studies (e.g. drug approval)
- Information held by the NZa on numbers of care products delivered and invoices
- Financial data of a business and shares in various product groups
- Composition and properties of products, research methods and results, or production processes
The data below are not business and manufacturing data, according to case law:
- A business’s ownership structure
- Standard clauses in a contract
- Documents relating to a business’s purchase of premises from a bank
Disproportionate prejudice
In exceptional cases, if information other than environmental information is involved, the ‘disproportionate prejudice’ exception in Article 5(5) Woo may also be invoked. Under the Government Information (Public Access) Act, this ground for exception was regularly invoked to exclude information on businesses from public access. Case law based on that Act provides a varied and casuistic picture of cases in which this ground for exception may or may not be successfully invoked.
An example of successful invocation is the case involving violations by Dutch transporters of the rules for international livestock transports. The request for disclosure of notifications from foreign authorities had been partially denied. Business names and personal data did not have to be disclosed because that would lead to excessive actions by animal rights activists that, by their nature, would disproportionately prejudice the livestock transport companies involved.
A request for disclosure of the names of tomato growers that were faced with an infection by a bacterium that can lead to a tomato plant disease was also denied, on the grounds that it would lead to disproportionate prejudice. If it became known that a business had been affected by the tomato plant disease, customers might question whether it was a reliable trading partner.
Under certain (special) circumstances, the fact that persons are portrayed in a bad light in the documents requested may also be a reason to refuse their disclosure (in full or in part). According to the court, a factor in this case was that the negative opinions expressed in those documents regarding the persons and legal entities involved were not supported by facts. Similarly, the disclosure of business names in inspection reports that were found to be incorrect had to be denied because it disproportionately prejudiced the companies in question.
On the other hand, the disclosure of inspection reports drawn up under the regime of the Wet op het onderwijstoezicht (Education Inspection Act) was not deemed disproportionate. According to the court, the circumstance that disclosure of the reports adversely affected a private school did not mean that disclosure was disproportionate on that ground. The school’s argument that the content of the reports was incorrect and that the reports should therefore not be disclosed did not lead the court to form a different opinion.
As stated above, however, the ground for exception based on disproportionate prejudice under the Woo is further restricted compared to the Government Information (Public Access) Act because it can now be invoked only in exceptional cases.
Is it possible to object, appeal or request preliminary relief?
The administrative authority takes the third party’s interests into account when deciding on a Woo request. If you disagree with that decision, for instance because certain information will nevertheless be disclosed, you may object to it. The decision on the objection may then furthermore be appealed in court.
The filing of an objection and appeal does not suspend the effect of the decision. In principle, the documents are therefore simply disclosed immediately, despite the fact that you may later be proven right in objection or appeal proceedings. Because this would render legal protection effectively meaningless, the Woo prescribes that the administrative authority must wait after making the decision before actually disclosing the information if an interested third party (such as a business to which the documents relate) is likely to object. In that case, the information is not disclosed until two weeks after the decision was announced (Article 4.4(5) Woo).
This gives the interested party time to request preliminary relief in court, with the aim of suspending the Woo decision (i.e. waiting before making it public) until a decision has been made on an objection or appeal. The court will then issue a preliminary ruling as to whether the decision to disclose the documents is lawful. If an interested party does not request preliminary relief, the documents will be published at the end of the two-week period.
Points for attention in correspondence with public authorities
Businesses should beware that the disclosure of all information provided to public authorities may, in principle, be requested under the Woo. In light of the possible consequences involved, it is advisable to bear in mind the following points for attention:
- Do not provide more information than necessary.
- Expressly state what information is confidential, to avoid discussion at a later stage.
- Make your views known in time and consult a lawyer if necessary; you will forfeit your rights if you wait too long before doing so.
- Always ask (anonymously, if necessary) for a copy of the Woo request and check whether documents are out of scope.
- Check in the annex to Article 8.8 Woo whether other regulations take precedence over the Woo.
Maverick Advocaten has extensive experience with filing Woo requests, drafting opinions on Woo requests and litigating Woo decisions.
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