The AIG opinion interprets certain elements of the definition of “official documents” contained Article 1, paragraph 2, sub-paragraph b, of the Council of Europe Convention on access to Official Documents (CETS 205), which is also known as the Tromsø Convention. It focuses on the following concepts: “all information recorded in any form”, “drawn up”, and “held” by public authorities.
Considering that the definition of “official documents” is a very broad one, the AIG underlines that it encompasses any item of knowledge regardless of content or material whatever the form in which it was recorded. Both statements of facts and expressions of views are included. Information is “recorded” if it is represented in some permanent form.
A document that is being worked on or amended – for example, a draft – would not be considered as drawn up in the meaning of the Tromsø Convention. However, documents prepared in the course of decision-making on a subject matter – such as memoranda, opinions, advice, briefing notes, impact assessment reports, or other working documents – are to be considered as “drawn up” once they have been completed. The fact that the competent public authority has not yet taken a decision on the matter to which a document relates to is not decisive for the question of whether the document is an official document.
The Tromsø Convention applies to documents which are in the possession of public authorities. The registration of a document in a public authority’s system of management, storage or archiving of documents may be considered as evidence of that document being completed or held by a public authority. However, such registration cannot be considered as a condition for the application of Article 1, paragraph 2, sub-paragraph b, of the Convention. If, on the other hand, a document has been registered and retained, then it must also be considered as “held” by a public authority.
The AIG’s opinion addresses also the question whether a document held by a public authority must relate to the areas of responsibility, competence or activities of that authority or other public authorities for it to be considered as within scope of the Tromsø Convention. The AIG took the view that such a condition is not consistent with the definition of “official documents” in Article 1, paragraph 2, sub-paragraph b, of the Tromsø Convention. Documents received by public officials as private persons and which are not connected to their duties fall outside the scope of application of the Tromsø Convention.
The Tromsø Convention is the first binding international instrument guaranteeing a general stand-alone right to access State-held information. This is the first opinion issued by the AIG based on Article 11, paragraph 1, sub-paragraph b, i, of the Tromsø Convention under which it has the competence to monitor the implementation of the Convention by its Parties by means of, inter alia, expressing opinions on any question concerning the application of the Convention.
See the opinion for further detail.