Determine balance between government confidentiality and citizens' right to information (NL0045)

What is the public problem that the commitment will address?  There’s a tension between the so called ‘deliberative process privilege’ on the one hand whereby internal agency memorandums are not disclosed, and on the other hand the public call for more transparency on the arguments and scenario’s which are developed by civil servants.

What is the commitment?  Organizing a dialogue and a document with various actors about solving this tension.

How will the commitment contribute to solving the public problem?  Find a way to accommodate the need for confidential deliberations within government agencies and accommodate at the same time the public need for adequate information.  Organizing meetings with civil servants, FOIA experts, top civil servants and representatives of the civil society. 20

Why is this commitment relevant to OGP values?  The commitment will ideally lead to disclosing more information, improving the quality of the information disclosed, improving accessibility of information to the public, or enabling the right to information. The commitment is relevant to transparency.  The commitment is creating or improving opportunities, or capabilities for the public to inform or influence decisions. The commitment is creating or improving the enabling environment for civil society. The commitment is relevant to civic participation.

Additional information  Commitment budget made available by the Ministry of the Interior and Kingdom Relations: 20.000 euro.  Links to other government programs: Fits in the ambition of Wet open overheid (Woo)  Links to the National development plan or other sectoral / local plans: Meerjarenplan Informatiehuishouding (Multi-year information management plan). Milestone Activity with a verifiable deliverable Start Date: End Date: Meeting civil servants 1-1-2021 31-12-2021 Meeting FOIA experts 1-1-2021 31-12-2021 Meeting civil society 1-1-2021 31-12-2021 Meeting top civil servants 1-1-2022 31-12-2022 Document with new balance in Policy Intimacy 1-1-2021 31-12-2022

Action Plan Review

Commitment 7: The Future of ‘Policy Intimacy’

Verifiable: Yes

Does it have an open government lens? Yes

Potential for results: Modest

Commitment #7: The Future of ‘Policy Intimacy’ (Institute for Social Innovation (IMI), Ministry of the Interior and Kingdom Relations, Ministry of General Affairs, Open State Foundation).

For a complete description of the commitment, see Commitment 7 on pages 19-20 of the Netherlands 2020 – 2022 action plan here.

Context and objectives:

Currently, the Public Access to Government Information Act (Wet openbaarheid bestuur - Wob) is the legal instrument for citizens and journalists to formally request information from both the national and local governments. This legislation will soon be replaced with the Open Government Act (Wet open overheid - Woo). Under article 11 of the Wob (and article 5.2 of the future Woo), government information that includes personal opinions on policy (for example from civil servants or government officials), contained in documents drawn up for the purpose of internal consultation, does not have to be disclosed. In practice, this so-called personal policy view can limit the transparency of how the government operates by allowing civil servants and government to refuse or heavily redact Wob requests. There has been increased debate and media attention around this issue in recent years, and government officials frequently state that policy deliberations must enjoy a certain sense of confidentiality, or ‘intimacy’. At the same time, a report by the parliamentary inquiry committee looking into the recent childcare allowance scandal stated that “in practice the concept of 'personal policy views' is frequently stretched too far”. [18] Against this backdrop, the Institute for Social Innovation (IMI), together with relevant government representatives and other civil society organizations, have committed to explore how to better balance the need for the government to be transparent and open while safeguarding the ‘intimacy’ of the policy-making process. Specifically, the commitment will involve a series of formal consultations between relevant stakeholders (including civil servants, freedom of information experts, and civil society), which will result in a document with policy recommendations to help guide this discussion forward.

Potential for results: Modest

This commitment addresses an issue of critical importance to open government in the Netherlands, namely the ability of government officials to refuse (or heavily redact) Wob requests on the grounds that they contain “personal views” of civil servants or government officials. However, it is designed to be a preliminary, positive step towards resolving the tensions around “policy intimacy” and the results will likely be modest. Ultimately, its success will depend on the level of collaboration with experts during the planned discussions as well as the content of the resulting policy document. The guidelines or recommendations from this policy document could serve as a helpful starting point for future efforts in this area. It is not expected to produce any substantial results in the short term, as it does not aim to change legal framework and practices that are at the center of the debate on “policy intimacy”. The grounds for exclusion have been legitimized again in the forthcoming Woo and political debates are resurfacing on how to deal with “policy intimacy”, so it would be unrealistic to expect legislative change during the action plan period.

The commitment does identify a possible longer-term path to change, by seeking to link the outputs to the 2019-2025 multiannual plan to improve the management of central government information by the National Programme for Sustainable Digital Information Management (RDDI). In addition, relevant stakeholders such as the RDDI are also formally involved in Commitment 5 in this action plan, which deals with proactive disclosure of government-held information. As such, the work under this commitment could bring important contributions to future discussions, and the lessons learned and insights that will be collected in the document can inform other processes and discussions that will shape the future of “policy intimacy”. [19]

Opportunities, challenges, and recommendations during implementation

Recent political developments have provided key momentum for the need to talk about the overall culture of openness and transparency in Dutch government. Questioning the concept of “policy intimacy” is now much more accepted, and discussions under this commitment can tap into that energy and understanding. A challenge will be doing so with impact and longevity. In that regard, it is essential to involve a broad coalition of stakeholders and map the more persistent challenges to a culture of open government.

Keeping the work under this commitment informal may be helpful for getting started. But as time progresses, the IRM recommends formalizing the network that this commitment will task to formulate some answers to provide its important work with much-needed prioritization. The importance of the inclusion of relevant government agencies, such as the RDDI, cannot be overstated. Occasionally, involving prominent figures in the debate/work, such as external Wob experts or the former ombudsperson, could also provide this work with external thought leadership and help diffuse new norms around transparency inside government circles. In that regard, the IRM also recommends reaching out to experts in organizational psychology, as changing an organization’s culture, let alone a culture that is believed to be deeply enshrined in an entire administration and its institutions, is difficult and would benefit from the insights of these disciplines.

Results Report

Commitment 7. The Future of ‘Policy Intimacy’

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Modest

● Completion: Complete

● Did it open government? Marginal

Commitment 7: The Future of Policy Intimacy (Institute for Social Innovation)

Context and Objectives:

This commitment explored the future of ‘policy intimacy’, which seeks to resolve tensions for public officials around government confidentiality and public transparency and the citizen’s right to information during the policy-making process. In the Netherlands, government information is in principle publicly available, unless legal grounds for exception apply. Since 1 May 2022, the Open Government Act (Wet open overheid - Woo) regulates access to government information. The law continues the legal practice that information which includes personal viewpoints of public officials constitutes grounds for exception, meaning such information does not have to be disclosed or can be only partially disclosed. Under the Woo, however, the government and its administrative bodies will curtail the use of this exception. ^[4] In response to the childcare allowance scandal in 2018, one of the main additions to the law was that, in principle, all documents containing the personal policy viewpoints of officials used for formal decision-making will be become public in an anonymized fashion. Tools and approaches for policymakers that navigate how to deal with such sensitivities and dilemmas were much needed.

Against the new legal framework and strong political momentum and public demand for greater government transparency following the childcare allowance scandal, this commitment was timely. While the commitment did not envisage legislative changes, it called for consultations with government officials, academia, CSOs, and journalists to develop guidance around this critical topic. This was a first step to gradually changing the minds and approaches within public administration toward making balanced choices between confidentiality and discretion.

In the Action Plan Review, the IRM identified possible political sensitivities around the topic and recommended that collaboration with experts -both within and outside the government- could strengthen dialogue. The IRM mentioned the difficulties of changing organizational culture and suggested pooling resources with other work in the action plan (such as Commitment 5) to institutionalize meetings.

Did It Open Government? Marginal

During implementation, stakeholders achieved good levels of collaboration. The main implementing organization, the Institute for Social Innovation (IMI), started with a broader analysis around the parliamentary history of personal policy views. It then convened relevant stakeholders, including high-level officials such as advisors to the Prime Minister, Woo lawyers, the Secretary-General of the Ministry of Interior and Kingdom Relations, local government officials, journalists, and others to discuss how to balance the need for transparency with discretion and confidentiality in policy-making. This resulted in a draft report that juxtaposes different views on the topic and addresses concerns by public officials related to, for instance, the public disclosure of decision notes. Some officials were enthusiastic around these developments, whereas others expressed concern if differing opinions between public officials and ministers might become public and subject to media attention. The report also identified possible future research, particularly regarding the effects of increased transparency on the quality of official documents. According to some, more transparency may lead to lower quality because sensitive issues are no longer recorded on paper or are only expressed in vague and circumlocutory terms.

IMI and the Open State Foundation also conducted a separate study (outside the action plan) into the processing times of freedom of information requests and found that nearly 80 percent of all requests are not processed within the legal time limit. ^[5] The fact the government does not meet statutory deadlines for FOIA requests received significant media attention and caused some tension between stakeholders. The point of contact to OGP mentioned that after some clarifications on their side, this was resolved, and progress continued as planned. [6] This was also exhibited by the concluding meeting of the commitment where all stakeholders were represented at high levels and had fruitful discussions.

As a result of this commitment, a valuable network of Dutch experts and practitioners in access to information convened and identified steps going forward. Most importantly, they recommended developing concrete guidance in response to unclear legal provisions in the Woo and diverging interpretations on the exception grounds. Some legal scholars have called for a simplification of the relevant articles of the new law. During implementation, some government stakeholders recommended finding solutions in a more discursive approach, arguing that personal policy views are not personal expressions but are a professional opinion and should be referred to accordingly. Other identified approaches were the possibility to institute an advisory body to assist in the application of the grounds for exception, the definition of categorical exceptions, and working on better front-end selection (i.e., only those documents relevant for the administrative decision-making process).

Looking Ahead:

The work around policy intimacy is critical for achieving the cultural change that many interviewed stakeholders and external observers believe is needed. In that effort, the IRM continues to recommend broadening the stakeholder group, institutionalize its work, and ensure key institutions and government agencies are engaged, such as those in charge of information management and technical implementation of archiving requirements in the Woo. In addition, involving experts in organizational psychology is essential to change the prevalent administrative culture (which has for decades been less transparent).