GUE Response Access to Documents (20 October 2016)

Following the PANA committee’s acceptance of the refusal by Martin Schulz and the EP bureau to grant access to documents also to MEP assistants, we have outlined why this is in our view legally challengeable and short-sighted for the success of our work.

 

Dear Chair,
 
We hoped to have the opportunity to collectively discuss the reply to President Schulz regarding access by APAs to the secure reading room during the mandate of the PANA inquiry, particularly in light of our emailed proposals prior to the previous PANA coordinators meeting. We think that there are substantive legal arguments that support the view previously expressed by the PANA and EMIS committees according to which access to the reading room could be granted within the current legal setting based on a decision by the EP bureau.
 
Officials have described the existing Bureau Decision as being an “implementing measure” of the Interinstitutional Agreement (2014) with the Council and the Framework Agreement (2010) with the Commission, which, according to the President Schulz’ letter to our committees, would not permit APA reading access. Hence, it is said, this could not be “overruled” by a differing bureau decision. In contrast with this interpretation, we would like to bring the following points to your attention regarding the specific content of these agreements.
 
1. The documents in the reading room are categorised as “other confidential information” (OCI).
 
2. Only the Bureau Decision explicitly deals with who can access OCI in a reading room.
 
3. The Interinstitutional Agreement only sets out the terms under which “classified information” can be accessed. It does not mention OCI.
 
4. The Framework Agreement, in its discussion of accessing confidential information, refers to two options: Using a secure reading room if the documents are classified (Section 3.2.2(a)), or holding a meeting in camera that can only be attended by officials, Members and political group staff who have established a need to know (S3.2.2(b)). The Framework Agreement very clearly only refers to accessing classified information in the reading room, with no specific exclusion of APAs. Only in camera meetings exclude APAs.
 
In our interpretation, the Bureau Decision has taken the general wording from the Interinstitutional Agreement and Framework Agreement that only relate to accessing classified information in a reading room (or confidential information being discussed in a meeting), and has applied it to accessing other confidential information in a reading room without a firm legal basis.
 
In the context of this lack of legal clarity, the ‘need to know’ principle that is put forward in the agreements and the Bureau Decision is very important for the PANA and EMIS committees to raise.
 
The Bureau Decision defines the ‘need to know’ as “the need of a person to have access to confidential information in order to be able to perform an official function or a task”. During such an inquiry committee, we believe that APAs have a strong need to know in order to fulfil their function assisting MEPs on the inquiry. There has been agreement on this among political groups in the TAX2, PANA and EMIS committees and, from a practical point of view, the access granted during TAX2 has effectively and demonstrably contributed to the committee’s thorough analysis of documents provided in the reading room.
 
As only the Bureau Decision actually covers the circumstances in which staff can access secure reading rooms, we urge the PANA and EMIS committees to revert to the EP Bureau and underline that the Bureau Decision should be amended in order to resolve this problem.
 
As regards the second legal problem to be discussed in the context of access to documents – see other previous mail attached – we hope that a mutual agreement for responses to the European Commission can be found swiftly and collectively.
 
Kind regards,
 
Fabio De Masi
 
ANNEX: Relevant legal articles for ease of reference.
 
Relevant sections of the Interinstitutional Agreement 2014
 
Article 4(4)
 
Access to classified information shall be granted only to those officials of the European Parliament and other Parliament employees working for political groups who:
have been designated in advance as having a need-to-know by the relevant parliamentary body or office-holder determined in accordance with Article 5(4);
 
have been security-cleared to the appropriate level in accordance with the European Parliament’s security rules where the information is classified at the level CONFIDENTIEL UE/EU CONFIDENTIAL, SECRET UE/EU SECRET or TRÈS SECRET UE/EU TOP SECRET or its equivalent; and
 
have been briefed and received written instructions on their responsibilities for protecting such information as well as on the means of ensuring such protection, and have signed a declaration acknowledging receipt of those instructions and undertaking to comply with them in accordance with the European Parliament’s security rules.
 
Relevant sections of Framework Agreement (Annex II)
 
1.2.1. ‘Confidential information’ shall mean ‘EU classified information’ (EUCI) and non-classified ‘other confidential information’.
 
1.2.3. ‘Other confidential information’ shall mean any other confidential information, including information covered by the obligation of professional secrecy, requested by Parliament and/or forwarded by the Commission.
 
3.2.2. Regarding the arrangements for the handling of confidential information, provision should be made for the following options:
 
(a) examination of documents in a secure reading room if the information is classified as ‘CONFIDENTIEL UE’ and above;
 
(b) holding the meeting in camera, attended only by the members of the Bureau, the members of the Conference of Presidents or full members and substitute members of the competent parliamentary committee as well as by Parliament officials and those Parliament employees working for political groups who have been designated in advance by the chair as having a need to know and whose presence is strictly necessary, provided they have been given the required level of security clearance, taking into account the following conditions:
 
— any documents may be numbered, distributed at the beginning of the meeting and collected again at the end. No notes of those documents and no photocopies thereof may be taken,
 
— the minutes of the meeting shall make no mention of the discussion of the item taken under the confidential procedure.
 
Before transmission, all personal data may be expunged from the documents.
 
Relevant sections of Bureau Decision 2013
 
Article 2 (i)
 
(i) ‘need to know’ means the need of a person to have access to confidential information in order to be able to perform an official function or a task;
 
Article 3 (7)
7.Officials of the European Parliament and other European Parliament employees working for political groups may consult confidential information if they have an established ‘need to know’, and may consult classified information above the level RESTREINT UE/EU RESTRICTED if they hold the appropriate level of security clearance. Access to classified information shall be granted only if they have been briefed on, and received written instructions concerning, their responsibilities regarding the protection of such information, as well as the means of ensuring such protection, and if they have signed a declaration acknowledging receipt of those instructions and undertaking to comply with them in accordance with the current rules.