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Legislation
France's Law on Free Access to Administrative Documents (Law No. 78-753 of 17July 1978) was created in 1978 closely following the United States, and is therefore part of the 'first-wave' of FOI regimes. It provides for a right to access by all persons to administrative documents held by public bodies.
The law first and foremost enables citizens to exercise the right to be informed of how tax money is spent expressed by Article 14 of the 1789 Declaration of the Rights of Man: "All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put."
The right of access to administrative documents has recently been reinforced by the Ullman decision taken by the Council of State [1], France's highest administrative jurisdiction, in April 2002. Indeed, the Council of State found that the right of administrative documents is a fundamental right under Article 34 of the Constitution [2].
However, although the right of access to administrative documents is constitutionally guaranteed in this mature democracy, non compliance seems to be the rule. This can be explained by a general lack of awareness [3] of the law, in the population and even within the administration itself.
Operation
The French law on Free Access to Administrative Documents provides for a right of access by all persons to administrative documents held by public bodies or private bodies performing a public service. These documents include "files, reports, studies, records, minutes, statistics, orders, instructions, ministerial circulars, memoranda or replies containing an interpretation of positive law or a description of administrative procedures, recommendations, forecasts and decisions originating from the State, territorial authorities, public institutions or from public or private-law organizations managing a public service."[4]
The law, however, exempts branches and organs of the French state, including the parliamentary assemblies, the State Audit Office and the Council of State [5]. There are also mandatory exemptions for documents that would, for example, harm national defence secrecy; the conduct of France's foreign policy; the State's security, public safety and security of individuals; the currency and public credit and so on. [6] One exemption particular to the French law is that documents concerning proceedings of Government cannot be released. French Journalist and FOI campaigner, Paul Moreira, says that "the law has so many exceptions that it is totally ineffective. Almost everything is classified 'confidential defense' and when a document mentions an identity, it is rendered inaccessible."
The 1978 law came with the creation of the Commission d'Acces aux Documents Administratifs, more commonly called the CADA. The CADA is an independent administrative authority designed to oversee the implementation of the law's provisions and to arbitrate between the public and the administration. The Commission publishes an annual report in which it indicates how many documents were considered communicable or were refused the previous year.
If an administration refuses to give access to a document it is possible to ask the CADA for its advice. The CADA can conduct a hearing of the parties and then give its decision. However the CADA has only an advisory role so its decisions are non binding.
In order to get a binding decision, one can also utilise seize the administrative courts. Indeed, applicants can appeal a decision taken by the CADA before the courts but it is not possible to appeal a decision taken by a public body directly in front of an administrative court (Article 19, 1989: 20) without first going through the CADA.
Current issues
In recent years campaigners as well as the CADA itself have come to criticise more vigorously the Law on Free Access to Administrative Documents. As the law celebrated its thirtieth anniversary in 2008, it was the occasion for them to assess it and to compare it to other access to information laws around the world. The conclusion was that France is lagging behind democracies in terms of administrative transparency.
The CADA held a conference in 2008 which pointed out the lack of awareness of the population and the administration. Back in 2006, the Open Society Justice Initiative had already noted that civil society representatives, journalists, and public officials had a low awareness of the existence of France's access to documents law and its relatively poor implementation in practice. [7]. As a consequence, few people make requests and when they do so, administrations do not know how to handle them or even refuse to cooperate and release information. The former head of the CADA, Michele Puybasset, said that the largest problem was the failure of bodies to recognize that the act applies to them or still have traditional notions of secrecy and excessive delays (80 per cent of bodies do no meet the deadline) [8].
The effectiveness of the law is not helped by the fact that the CADA is an inadequate oversight body. Firstly, many administrations do not follow the CADA's decisions as these are not binding. The CADA has only what is called an advisory role. Compared to Mexico's Federal Institute for Access to Public Information (IFAI), a large and powerful commission which has the political will to impose sanctions and requires authorities to release information in a timely manner, the CADA has a very limited mandate.
Furthermore, the CADA has not been charged with promoting the right of access to information which could raise public awareness. The United Kingdom's Information Commissioner's Office (ICO) on the other hand has a strong public promotion role. It has surveys about how many people know about FOI for example. CADA staff noted that the French monitoring body would not have sufficient resources for a similar role.
Liberte d'informer, a group made of journalists, members of parliaments, jurists and members of civil society, campaigns to put a possible reform of the law in favour of greater access to information on the political agenda. In an attempt to do so, it approached candidates of the 2005 presidential election on the topic but ,significantly, this failed to spark interest or even media attention.
When asked by a French MP, in 2006, about a potential reform of the law, the former prime minister, Dominique de Villepin, replied: "It is not intended to amend the existing legislation on access to administrative documents which strikes a fair balance between the necessary transparency of administrative action and the protection of interests of the State and people".
References
[1] L'arret Ullmann du Conseil d'Etat du 29 avril 2002
[2] Banisar, David (2006) Freedom of Information Around the World 2006, A Global Survey of Access to Government Information Laws, Privacy International.
[3] Open Society Institute (2006), Transparency and Silence, A Survey of Access to Information Laws and Practices in 14 countries
[4] Banisar (2006)
[5] Open Society Institute (2006)
[6] Banisar, David (2006)
[7] Open Society Institute (2006),
[8] Banisar, David (2006)
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