Problems arise when citizens request documents from public authorities with information on third parties
When Dutch citizens request information under the Open Government Act (Woo), third parties can ask the public authority to withhold certain information. Leiden research reveals that the position of these third parties is unclear and accessing information is a difficult process.
‘Old-fashioned erasing’
Whole generations grew up using Tipp-Ex, a correction fluid that covers up mistakes in texts by wiping them out. Anyone who’s ever used a bottle of Tipp-Ex with its characteristic solvent vapour knew: once something’s been ‘tippexed’, the text is illegible. These days, we have digital tools that can quickly and efficiently erase texts, or conjure them back again. Tipp-Ex mostly lies dormant in office drawers. But after reading Leiden University's report about Woo requests, it’s possible there’s still one group of people out there using this old-fashioned erasing method: civil servants handling Woo requests (see boxed text for explanation).
Versus ‘transparent varnish’
Leiden scholars believe things could be different, after examining how civil servants handle Woo requests. 'It’s now easy to use “transparent varnish”. One reader can then still see the original text, while the other can’t,' says principal researcher, Annemarie Drahmann, Associate Professor of constitutional and administrative law at Leiden Law School.
'Two and a half years after the Woo was introduced, a lot is still going wrong. This is worrying.'
'It’s a great tool to use when the government has to disclose information because of a Woo request, but the requested text also contains third-party information. The citizen is then unable to see all the information in that document.' But the problem, according to civil servants who completed a survey by the Leiden researchers, is that not all civil servants can use that tool. The process of blacking out text is also inefficient for other reasons. Civil servants are unable to automate blacking out text or to keep track of the different versions of a document. As a result, processing Woo requests takes an unnecessarily long time.
What is the Woo?
The Woo is an abbreviation for the Dutch Wet Open Overheid (Open Government Act) which was introduced in May 2022 to replace the Wet Openbaarheid Bestuur (Wob)(Government Information (Public Access) Act). Under the new Woo, citizens can ask authorities to provide them with information, previously possible under the Wob.
What is a ‘Woo request’?
A Woo request is a request made by citizens to a public authority asking for certain information to be shared with them. Under the previous law, this was known as a Wob request.
It aims to promote government transparency; citizens can check whether the government is acting fairly, treating all citizens equally (see also below ‘why was new legislation necessary?’). All citizens can submit such a request.
Is the government authority obliged to respond to a Woo request? And what about that ‘blacking out’?
Yes, if a citizens submits a Woo request, the authority must share the information. That said, not all information has to be shared directly; the government can ‘black out’ some information, i.e. certain words, sentences or paragraphs. One possible reason for the authority to do so is because the text contains confidential third-party information.
Why was new legislation necessary?
The reason to introduce the Woo was the childcare benefit affair, a scandal in which the Dutch government branded certain groups of citizens who received allowances, often from immigrant backgrounds, as fraudsters for no good reason. These people then had their benefits withdrawn and even had to repay them, despite them being entitled to them. This led to serious debts, evictions and even children being placed in care. It took years before this came to light, partly because the government had withheld certain information by using the Wob as an excuse. Politicians decided that something like this must never happen again, and so new legislation was introduced.
The idea behind the Woo was therefore that the government would make more information public on its own accord, i.e. without citizens having to request it by submitting a Woo request. In addition, the Woo was also supposed to lead to the government sharing information faster when requested.
Focus on service causes delays
To ensure that citizens receive the information they want faster, civil servants also need to work in a different way. Drahmann: ‘What did our research show? Civil servants are very service-oriented. When a citizen requests information and those documents contain information about third parties, officials almost always give the third parties, often companies, the chance to let them know whether they would like to keep pieces of text confidential. If it concerns trade secrets, for example about the price structure of a drug, that makes sense. But this is certainly not always the case; sometimes it involves information that shouldn’t be kept confidential, for example environmental information about a company's emissions.' In that case, civil servants don’t need to ask those third parties whether they can share that information with other citizens. That would take up unnecessary time, the researchers say.
Lack of clarity
Drahmann and her co-researchers, two students, arrived at their findings after sifting through 843 court rulings and also conducting a survey, which was completed by over 300 civil servants, third parties and people who had submitted a Woo request. The results showed that citizens submitting Woo requests have no idea when the public authority asks third parties whether they agree to information being shared with the citizens. In addition, they say they don’t know what exactly happens to the response from third parties – is the information then kept confidential or not? But third parties also say that they are unaware when the government asks them if they think something should be kept confidential and whether their objections are taken into account. ‘The government could remove this lack of clarity for citizens and businesses by explaining in information brochures in what cases the Woo allows third-party information to be kept confidential,’ says Drahmann.
Read Leiden University's research report 'Derden & de Woo. Een onderzoek naar de rol van derden bij de afhandeling van Woo-verzoeken'.
Practical difficulties
Not only are changes possible, the researchers say they are definitely necessary. Their report states: ‘It’s worrying that 2.5 years after the introduction of the Woo, many administrative authorities still seem to have invested insufficiently in the software needed to handle Woo requests properly.’ Drahmann, who was also invited to the Dutch House of Representatives last month to express her views on how the Woo works in practice, said: ‘The aim of the Woo was to make more information public faster, but our report shows that the basics are still not properly organised, for example because officials don’t have the right ICT tools.'
The researchers conducted the study on behalf of ACOI, an authoritative body that monitors government compliance with the Woo. Drahmann: ‘The ACOI has already informed us that as a result of our report, they will draw up guidance on how government authorities should handle these kinds of Woo requests. It would be great if they adopt some of the solutions we’ve proposed.'