Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

France

Access to Information Regime

The Act of July 17, 1978 states that every citizen has a right to access government documents. The Act of April 12, 2000 on the rights of citizens in their relations with governments amended the 1978 Act by expanding its application to include new types of documents and to define the obligations on government authorities with respect to transparency. Lastly, it expanded the jurisdiction of the Commission d’accès aux documents administratifs (CADA), which oversees effective application of the Act.

The Act of April 12, 2000 also simplified the procedures for requesting information and entrenched the principle of easy access to laws passed by the various authorities subject to the Act and raised the dissemination of legislation to the level of a mission of public administrations. Government officials are required to simplify access and dissemination using a variety of modes, including on-line access.

La Loi sur l’accès aux documents administratifs (Act respecting access to government documents) covers federal administrations; territorial communities, cantons, departments and regions; public institutions of an administrative nature regardless of their territorial attachment; social security agencies and other agencies responsible for the management of a government service, such as the private agencies responsible for the management of highways, the SNCF, Radio-France and France Telecom; and all public or private agencies managing a government service, such as a life insurance fund, a farmers’ mutual plan, and a sports or recreation federation.

The Act makes access the rule and secrecy the exception. Disclosure of a document may not be refused except on the basis of the exceptions set out in the Act. Government documents that may prejudice the confidentiality of Government deliberations and authorities arising from executive power, the confidentiality of national defence matters; the conduct of France’s foreign policy; the safety and security of the nation, the public, or individuals; currency and public credit; the conduct of proceedings before the courts or preliminary operations to such proceedings, except where authorization is given by the relevant authority; the investigation, by the relevant services, of tax and customs infractions; or, in general, all secrets protected by the Act, may not be disclosed.

Certain documents containing personal information may not be disclosed to third parties, such as documents which, if disclosed, could infringe on privacy and personal records, documents covered by medical confidentiality and those relating to trade or industrial secrets.

The Act applies to files, reports, studies, proceedings, minutes, statistics, directives, instructions, circulars, memoranda and ministerial responses that include an interpretation of positive law or a description of administrative procedures, notices, forecasts and decisions. Such documents may be written, video or sound recordings, electronic or accessible by a common automated processing method. Documents may be disclosed even if the government authority is not the author, provided the government has them.

The Act does not apply to acts of parliamentary assemblies, notices of the Conseil d’État and administrative jurisdictions, documents of the Court des comptes (audit office) and regional audit offices, statements of claims to the Médiateur de la République and documents used to develop the accreditation reports of health institutions.

The Government is never required to disclose unfinished documents, drafts or successive interim versions of the same document. Other types of preparatory documents, however, such as proceedings, reports or projects which support a decision-making process, may be disclosed once the decision has been made and announced publicly.

Under the Act, only documents that exist may be disclosed. The government does not need to create documents to respond to requests. The Act does not require the disclosure of documents that have already been released publicly or prepared by a government authority as part of the delivery of user-pay services. If the request for disclosure is abusive because it is repetitive or systematic in nature, the government does not have to comply with the request. The Act does not contain any provision regarding voluminous requests. However, jurisprudence recognizes that governments may adjust the terms of access. It is also prohibited under the Act to commercially exploit the information obtained.

Requests may be made through a standardized electronic or automated process that certifies the date of the request.

Access is provided by free consultation on site or by delivery of a copy of the document. Given that the release of information is considered to be a mission of public service enabling the exercise of a basic right, the only cost to the individual making the request are the costs of mail delivery (depending on the delivery option chosen by the requester) and the cost of copying which includes the costs related to the type of equipment and support required and the amortization of the copying equipment. Reproduction costs may not exceed .18 € per photocopied page, (about $0.20), 1.88 € for a diskette (about $2.00) and 2.75 € for a CD ROM (about $3.50). If the information is provided electronically, there is no charge. The government must acknowledge receipt of the request. If it is unable to respond within one month, it is deemed to have rejected the request.

Any individual whose request for an administrative record has been refused may challenge the decision by appealing to a “juge administratif” after having first contacted the “Commission d’accès (CADA)” to have this body rule on the administrative nature of the requested document and on whether the document may be disclosed or not.

The CADA has extensive investigative powers in order to fulfil its mandate. Governments must provide it with the documents that are in dispute and with all relevant information. Its officials may also conduct on site investigations. The CADA has one month to issue an opinion on whether the document requested may be disclosed. It “states the law”; it does not rule on the advisability of disclosing the document.

Once the CADA has rendered it opinion, the government has one month to carry it out. The CADA’s opinion is not binding but the government follows it in the vast majority of cases. If the government does not follow it, the requester who has obtained an opinion from the CADA may, within the next two months, ask the “juge administratif” to overturn the implicit or explicit decision to refuse disclosure of the document. There is no formal process around this procedure other than a written request to the proper authority, and it is not expensive. The judge normally upholds the CADA’s opinion.

The CADA also provides advice to government authorities. It communicates its interpretation of the applicable provisions and can suggest amendments to the government to improve the implementation of the right to access legislation. It publishes its formal opinions on its Web site and in its reports. If necessary, it denounces the government’s attempts to prevent access to government documents. It also strives to prevent problems by educating governments and their officials.

The 1978 Act, as amended in April 2000, resulted in real change in the French government by making background files to decision making (orders, laws, etc,) accessible, except in certain cases, such as matters of national security. Background documents on decisions to be made, on those not made, or on decisions made but not yet announced, are not subject to disclosure.

Documents prepared and used in Ministers’ Offices are administrative documents and thus subject to the provisions of the Access legislation. Nevertheless, their disclosure may be limited because they contain information on the secret proceedings of the government or information which could adversely affect easily identifiable individuals. Ministerial correspondence is not subject to disclosure.
The French regime recognizes a confidential sphere of work for government authorities: correspondence, post-it notes and e mails are not documents subject to disclosure, nor are personal notes or anything that would reveal how government officials perform.

Requesters of access are most often individuals who file an access request to their local government. The majority of the requests relate to the public service, urban planning and corporate affairs. Individuals most often request documents of personal interest and privacy is most often the reason given for not disclosing documents to third parties. The identity of the requester is not protected but the purpose of the request may not be taken into consideration in the government’s decision to disclose the document, except in the case of abusive requests which are characterized by their numbers, or by their repetitive or systematic nature.

Journalists rarely use the Access Act. This disinterest is attributed to the lack of a tradition of investigative journalism in France and the fact that they have other ways to obtain their information.

The government does not believe that access to information creates major problems and it was mentioned that citizens have a wide range of means of accessing government documents. It was pointed out that in recent years the French government has done quite an about-face in terms of transparency: government authorities are proactive in communicating their intentions, objectives and expected outcomes; national policy directives are public, and departments communicate their medium term strategy. The French government is presently examining the quality of the preparation for decisions (impact study) and the disclosure of these background documents to provide citizens with greater opportunity to participate in the debate of public policy.

A major government project (PAGSI) is aimed at putting on line all essential public data. The citizen will be able through a single entry point to access national, regional and municipal information, acts and bills under consideration. This “citizen portal” will provide access to close to 7,000 government sites throughout France. The approach will be user friendly and focused on the needs of citizens.

The number of cases handled by the CADA has increased tenfold over the past 20 years, climbing from 400 in 1980 to close to 4,900 in 2000. This increase is a clear reflection of a better understanding by users of the process and their readiness to call on the CADA when they encounter difficulties accessing a document or some reticence by governments to spontaneously respond to requests for information they receive, either through inertia or mistrust is evidence of this increased awareness. In spite of this, the access process to government records remains largely unknown.

Each government must identify a “CADA contact” who dialogues with the requester to assist in clarifying the request. The CADA is concerned, however, that several of the contacts do not have the necessary level or influence.

The most problematic files relate to the protection of privacy, information provided to third parties and defence secrets. Documents related to defence secrets can be disclosed only if the relevant authority has agreed to declassify them. A judge who needs access to such documents in the context of the resolution of a case may ask the minister to call upon an independent administrative authority (la Commission consultative nationale du secret de la défense nationale) to review the documents and render an opinion on the advisability of their disclosure to the judge. The administrative authority’s conclusions are made public, but the Minister is not bound to those conclusions. Since the implementation of that system, the advice of the administrative authority has systematically been followed. The CADA has no jurisdiction for this category of documents.

The CADA, like the government’s representatives, believes that the fundamental rules of access, as interpreted by jurisprudence, are good. Section 6 of the Act sets out the instances in which documents may not be disclosed. The CADA has used a restrictive interpretation of these exceptions. There does not appear to be significant public pressure for them to be eased or eliminated.

The CADA believes that all documents should be open for disclosure after a given period of time. The current archives legislation sets out a number of time lines for the disclosure of certain documents: 60 years for those of the Prime Minister and those related to defence, 30 years for drafts of bills and secrets protected by other legislation. A bill presently being considered would reduce all of these time lines to 25 years.

Despite the amendments in the April 12, 2000 legislation, the CADA believes that not all barriers to access have been eliminated and that almost 25 years after the adoption of the Act, the right to transparency is still facing serious obstacles related more to administrative practice than to the structure of the legislative regime.

There is apparently still a real gap between the goal of transparency, reaffirmed by the lawmakers, and administrative practices, not because governments are trying to hide information but because they are driven by inertia or mistrust when it comes to responding to requests for disclosure; force of habit often leads governments to keep secret otherwise innocuous documents which could easily be disclosed without any significant inconvenience to the departments and which could perhaps prevent litigation. The Commission is convinced that implementing the right to access will come about more through a change in mindsets around “government confidentiality” than through the adoption of more, prescriptive legislation. The real focus needs to be on building awareness within the government and a better classification of files.