Public Information Provision in the Digital Age: Implementation and Effects of the U.S. Freedom of Information Act

By Maarten Botterman; Tora Bikson et al. | Go to book overview

2.
COMPARISON US VS DUTCH SITUATION
The previous section described in detail the various legal elements of FOIA and other related legislation in the US. The implementation of FOIA regulations (most recently, regarding EFOIA) has had different kinds of impact on the way the US government conducts its business. However, in order to understand how the lessons learned in the US regarding the implementation and impact of (E)FOIA can apply to the Netherlands, this section will make a general comparison of the legal conditions that apply in both countries.
2.1. FREEDOM OF INFORMATION IN THE NETHERLANDS
In the perspective of public and administrative law in the Netherlands, the concept of freedom of information is positioned as a legal safeguard against the administration. The government is expected to administer in a fair and efficient way. To assure that, various administrative safeguards (“bestuurswaarborgen”)have been put in place, such as the system of democratic or parliamentary control; control by courts of administrative, civil and criminal law; administrative control through a higher administrative authority (“bestuursorgaan”), and; direct control.Public Access (“openbaarheid”) is an important condition for the execution of administrative safeguards for a fair and efficient administration. Public Access may be defined as a situation where any person has the right to inform himself on the decision making process of the public administration.In the sixties and seventies of the last century, the administrative agencies became more independent. To ensure democratic control was one of the reasons for drafting an Act to Promote Open Government (Wet openbaarheid van bestuur; WOB). The WOB itself expresses Public Access as a sine qua non for democracy.The first-ever Act to Promote Open Government (Stb. 1978, 581 see annex 2 for full text) in the Netherlands, with additional – separate – execution regulations, contains rules relating to open government and public access to information about the administration, in order to provide a legal tool of monitoring the democratic process of administration.After a new Section 110 in the Dutch Constitution and the publication of an evaluation report of the first WOB in 1983, the amended Act to Promote Open Government was finalized in 1993 (Stb. 1992, 422 and Stb. 1993, 650). The WOB is a — general — administrative statute that relates to Public Access to information about the administration laid down in documents.In addition to public access to government information in documents there are other forms of public access in the administrative law, such as public access to assemblies; public access to procedures; and public access to registers.
2.2. THE ACT TO PROMOTE OPEN GOVERNMENT

2.2.1. Structure
The Act to Promote Open Government (WOB) is an administrative statue, which relates to the public access to information about the administration laid down in documents. The WOB obligates the administrative bodies in the Netherlands to two ways of public access:
a. Passive public access, disclosing information upon request (section 3).
b. Active public access, affirmative disclosure of information (section 8).

Passive Public Access means that an administrative authority has the legal obligation to disclose information as requested by any person. The WOB expressly defines under what circumstances information can or must be withheld. Under the WOB, an administrative authority is also obliged to disclose/publish certain information without receiving a particular request, when seen as necessary for the public interest. However, there is not a common practice established, yet.

Active Public Access means that the administrative authority has the legal obligation to disclose some information pro-actively, informing citizens about facts that they may not be aware of, yet, in order to be able to make their views known to the authorities in good time. Article 8 of the WOB obliges administrative authority to provide, of its own accord, information on its policy and the preparation and implementation thereof, whenever the provision of such information is in the interests of effective, democratic governance.

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Public Information Provision in the Digital Age: Implementation and Effects of the U.S. Freedom of Information Act
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • Introduction 7
  • 1 - Understanding Foia 9
  • 2 - Comparison Us Vs Dutch Situation 23
  • 3 - Implementation and Impact of Foia 31
  • 4 - Concluding Remarks 47
  • Annexes 52
  • Annex 1: Foia Legal Text 54
  • Annex 2 Wob Legal Text (translated from Dutch) 64
  • Annex 3: Comparative Tables Between Foia and the Wob 69
  • Annex 4 Organisation of Interviews 74
  • Annex 5 – Literature and Web Site References 76
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