Addressing Information Asymmetry in Administrative Proceedings (NL0057)

Brief Description of the Commitment

Research on identifying the areas in administrative procedural law where information asymmetry arises in the relationship between citizens/businesses and the government. The aim is to map out the areas where problems occur and provide potential solutions.

Problem Definition

1. What problem does the commitment aim to address? • In proceedings before the administrative court, there should be an equal information position between citizens and the government. However, it is often argued in practice that there is information asymmetry in administrative procedural law between the government and the citizen. Through this research, we aim to identify the specific obstacles experienced by citizens, businesses and governments, and subsequently outline potential solutions.

2. What are the causes of the problem? • The administrative procedural law, as laid down in the General Administrative Law Act (Algemene wet bestuursrecht or Awb), provides a procedural framework for situations where a citizen appeals against a decision made by the government. In such cases, the “documents relating to the case” must be shared with the citizen (and the judge). However, if there are weighty reasons, it can be decided that only the judge can have access to certain documents. In practice, various challenges arise, including: - When a citizen seeks information before a decision is made or before initiating a legal procedure, there is ambiguity regarding whether the administrative procedural law or the Open Government Act (Wet open overheid or Woo) is applicable. Government bodies sometimes classify such information requests as “abuse of rights,” and with the current processing times for Woo requests, the information often arrives too late. - Administrative procedural law focuses on the proceeding over a government decision rather than the information needs of citizens. This can lead to discussions about what constitutes the ‘case’ and, therefore, which information should be disclosed as documents relating to the case. - When it is decided that the citizen cannot access certain information during the procedure (while the judge and other parties can), information asymmetry arises. This puts the citizen in a vulnerable position, as even their lawyer does not know the content of those documents, which affects their ability to defend themselves. It is also challenging for the judge to critically question the government about the “classified” information in the presence of the citizen, even though it could potentially be advantageous for the citizen.

Commitment Description

1. What has been done so far to solve the problem? - In the academic literature, particularly in commentaries on court judgments (annotations), partial problems that arise in practice have been previously addressed. However, these have not yet resulted in solutions, such as legislative amendments.

2. What solution are you proposing? - First and foremost, the aim is to comprehensively assess the scope of the problem by consolidating the issues previously described in literature and annotations. By gaining a better understanding of the areas where the issues occur, potential solutions can be proposed. These recommendations can be directed towards the legislator, administrative courts, or government bodies.

3. What results do we want to achieve by implementing this commitment? - The research will result in a research report. This report will be submitted to both the Ministry of the Interior and Kingdom Relations (BZK) and the Ministry of Justice and Security (JenV), as well as the judiciary. - Additionally, an expert meeting will be organized for the purpose of the research, allowing the involved stakeholders to gain greater awareness of the problem.

Commitment Analysis

1. How will the commitment promote transparency? The research results can contribute to strengthening the information position of citizens and businesses in proceedings with the government. This may involve providing citizens with earlier and/or more information, as well as enhancing their procedural position in cases where certain information must remain confidential.

2. How will the commitment help foster accountability? The research not only focuses on the information position of citizens but also examines the position of the administrative court. Part of the research involves exploring how the administrative court can better safeguard the equal information position between citizens and the government. This way, the government will be held accountable to the court.

3. How will the commitment improve citizen participation in defining, implementing, and monitoring solutions? The research aims to identify ways to strengthen the procedural position of citizens in administrative procedural law. During the research, interviews will be conducted with lawyers to assess the issues experienced by their clients (including citizens, businesses, and government entities) in procedural law and to validate potential solutions.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Step 1: Overview | Through desktop research, the legislative history, jurisprudence, and literature will be analyzed to map out the issues at hand. | Q4 2023 / Q1 2024

Step 2: Interviews | Interviews will be conducted with experts from the feld, such as lawyers and administrative judges. These interviews will aim to determine whether the identified issues are recognized, identify any additional problems that should be addressed, and gather insights into potential solutions from these experts. | Q1 2024

Step 3: Expert meeting | Based on the desktop research and interviews, a draft research report will be prepared. This draft will be presented to various experts during an expert meeting for their review and input. | Q1/Q2 2024

Step 4: Research report | Delivery of research report. | Q1/Q2 2024

Action Plan Review

Commitment 6. Information position of citizens and businesses in administrative proceedings