On January 31, 2018, the Administrative Law Division issued two rulings relevant to the application of the Open Government Act (Wob). The Division specifies both its case law on the disclosure of names of employees of administrative bodies and on the disclosure of (facts intertwined with) personal policy opinions. In this blog, I discuss the relevant considerations from both rulings.
Pursuant to Section 10(2)(e) of the Wob, disclosure of information is withheld if the interest of disclosure does not outweigh the interest of respect for personal privacy. Regarding the disclosure of names of employees of administrative bodies, the Division previously considered that for each name or category of names the consideration had to be made as to whether respect for privacy precludes disclosure (see, inter alia, ABRvS July 1, 2015). This required an intensive assessment that the Division tested intrusively (see, e.g., ABRvS June 21, 2017).
The Division clarified this case law in a case concerning the disclosure of research data held under the NWO. In the ruling, the Division has now determined that names of employees who do not go public because of their position are not eligible for disclosure. This is only different if the submitter of a Wob request makes it plausible that the interest of publicity outweighs the interest of publicity in a concrete case(ABRvS Jan. 31, 2018). Thus, a "no, unless" approach.
Except for special cases, this means for practice that, in principle, from now on, only the names of employees of administrative bodies who do go public because of their functions must be disclosed. Who are they? In any case, the administrators and, often, the directors(ABRvS Nov. 17, 2010). Sometimes that is more difficult to determine. It follows from the case law of recent years that it can also include a complaints coordinator and secretary of a complaints committee who are present at public hearings of a complaints committee(ABRvS January 11, 2017) and communication staff, such as press officers(ABRvS August 12, 2009). The names of prosecutors in a concrete criminal case(ABRvS Nov. 5, 2014) and of officials who sign a decision under mandate(ABRvS June 12, 2013) also had to be disclosed. Thus, although the January 31 ruling is in itself clear, the necessary situations may continue to occur in which the question of whether there is a reason to disclose the name should be faced in any case.
Section 11(1) of the Wob stipulates that no information about personal policy opinions contained in documents drawn up for internal deliberation shall be provided. It is established case law that if personal policy views and facts are intertwined, the facts need not be disclosed either. Until recently, no (concrete) statements were available on how an administrative body should assess whether opinions and facts are interwoven to such an extent that there is no obligation to disclose them.
In a ruling on the disclosure of documents on a transport project, the Division ruled that an administrative body must assess for each independent part of a document whether facts and opinions are intertwined to such an extent that there is no obligation to disclose. Thus, an administrative body no longer has to determine within an independent part of a document per sentence or phrase whether views and facts are intertwined(ABRvS January 31, 2018).
The rulings discussed above create clarity for those charged with handling Wob requests. In principle, the names of employees appearing in documents can always be deleted if these employees do not go public because of their position. In addition, an administrative body can assess for each part of a document intended for internal deliberation whether personal policy views contained therein are so intertwined with facts that they do not qualify for disclosure. This need not be done at the sentence level. These rulings will, in my estimation, bring some relief to executive practice.
ABRvS January 31, 2018, ECLI:NL:RVS:2018:321
ABRvS January 31, 2018, ECLI:NL:RVS:2018:314
This article can also be found in the Privacy in the Workplace file
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