Decree concerning open government
Decree of 26 March 2004 concerning open government

Chapter I.
General provisions, definitions and scope


Article 1. This decree regulates a matter which falls within the competence of both Communities and Regions.

Article 2. The purpose of this decree is to develop and specify passive open government, as recognised in article 32 of the Constitution, and active open government.

Article 3.

public authority:

  1. a legal person established by virtue of or pursuant to the Constitution, a law, a decree or edict;
  2. a natural person, an association of natural persons, a legal person or association of legal persons, the operation of which is determined and controlled by a);
  3. a natural person, an association of natural persons, a legal person or association of legal persons, to the extent that these have been charged by an public authority in the sense of a) with the performance of a service of collective interest or to the extent that they perform a service of collective interest and make decisions binding on third parties.

    The judiciary does not fall under the above definition, except when it acts in an other quality than as judiciary. The legislative councils and any bodies associated with them do not fall under the above definition, except in cases involving matters related to public procurements and members of personnel of their services. To the extent that it is acting in a judiciary quality, neither does the executive power fall under the definition above;

environmental authority :

  1. an public authority;
  2. any legal person, natural person or association thereof which is under the supervision of an public authority, insofar as it has public responsibilities or duties or performs public services relating to the environment.

    The judiciary does not fall under the above definition, except when it acts in an other quality than as judiciary. The legislative councils and any bodies associated with them do not fall under the above definition, except in cases involving matters related to public procurements and members of personnel of their services. To the extent that it is acting in a judiciary quality, neither does the executive power fall under the definition above;

authority: an public authority or environmental authority;

administrative document: the carrier – in whatever form – of information an authority has at its disposal;

environmental information: information about:

  1. the environment;
  2. measures and activities that lead or may lead to pressure on the environment, as well as the analyses and assessments thereof that are relevant for the measures and activities referred to in e);
  3. the pressure the measures and activities referred to in b) place on the environment by means of the factors of environmental disruption such as pollution factors;
  4. nature, buildings and areas of cultural beauty, the health, safety and living conditions of the population and the impact on these, in each case insofar as these are or can be affected by the state of the environment, the measures and activities referred to in b), or the factors of disruption referred to in c);
  5. measures and activities aimed at preserving, restoring or developing the elements referred to in d), or at preventing, limiting or compensating for pressures on the environment, as well as the analyses and assessments of such measures and activities;

private information: information concerning an assessment, a value judgement, or which comprises the description of the behaviour of a specifically named or easily identifiable natural person;

application: the request to make public, correct or complete administrative documents, unless specified otherwise;

communication: any notification, message, information campaign or awareness-raising campaign or any other communicative initiative aimed at the public in general or at particular target groups and originating from an authority – irrespective of the media or channels used.


Article 4.

§ 1.

This decree applies to the following authorities:

  1. the Flemish Parliament and its associated agencies and institutions;
  2. the dependent services, agencies and legal persons of the Flemish Community or the Flemish Region;
  3. municipalities and districts;
  4. provinces;
  5. other municipal and provincial agencies and institutions, including non-profit associations where one or several municipalities or provinces control at least half of the votes in one of the administrative or management bodies or take care of half of the financing;
  6. the associations of provinces and municipalities referred to in the law of 22 December 1986 concerning intermunicipal authorities and the forms of cooperation regulated in the decree of 6 July 2001 concerning intermunicipal cooperation;
  7. the public centres for social welfare, hereinafter referred to as O.C.M.W.s (for "Openbare Centra voor Maatschappelijk Welzijn") and the associations referred to in section 12 of the organic law of 8 July 1976 concerning the O.C.M.W.s;
  8. the polders, referred to in the law of 3 June 1957 concerning polders, and the water control authorities, referred to in the law of 5 July 1956 concerning the water control authorities
  9. the church councils and the bodies entrusted with the administration of the temporal possessions of the official religions;
  10. all other bodies within the Flemish Region and the Flemish Community.

 

§ 2.

Articles 10, 12, 13, 14, 15 and 17, §2, are applicable to other authorities than those referred to in §1, insofar as this decree prohibits or restricts the public nature of administrative documents on grounds falling under the Flemish Community or the Flemish Region.


Article 5. This decree does not prejudice decreed provisions providing for a more open government.

Article 6.

§ 1.

For the purposes of this decree, the terms of decision and execution begin on the day after the date of registration of the application, and in the event of no such registration having taken place, on the day after the date of receipt of the application.

 

§ 2.

For the purposes of this decree, the terms of decision and execution begin on the day after the date of registration of the application, and in the event of no such registration having taken place, on the day after the date of receipt of the application.


Chapter II.
Passive open government


Section I.
General provisions


Article 7.

Personnel at authorities must always be ready to help any natural person, legal person or association thereof, who are looking for information held by authorities.

 

The authority must give any natural person, legal person or association thereof who requests this access to the administrative documents he requires, by allowing him to peruse the documents, providing an explanation about them, or giving a copy of them.


Article 8.

§ 1.

Any administrative document in the possession of a person under the employ of an authority is considered to belong to this authority to the extent that the administrative document relates to the performance of the authority's duties.

 

As far as the Flemish Parliament is concerned, the term "person under the employ" in the previous subsection is to be understood as "personnel member of the services of the parliament".

 

§ 2.

An administrative document of an authority which is deposited in an archive, is considered to be an administrative document which this authority has at its disposal.


Article 9.

An administrative document is partly made public if in addition to other information the document contains information to which an exception applies – within the meaning of articles 11, 12, 13, 14 or 15 – or for which the obligation to prove an interest applies, as referred to in article 17, §2, second subsection, and if it is possible to separate the latter information from the former.

 

In such case the authority must in its decision explicitly indicate that the administrative document concerned can only partly be made public. To the extent possible it is to indicate the locations where information was left out and also on the basis of which provision of articles 11, 12, 13, 14, 15 and 17, §2, this was done.


Section II.
Exceptions to open government


Subsection I.
Common provisions


Article 10. The exceptions specified in articles 11, 13, 14 and 15 are explained in a restrictive way case by case. Furthermore, in the case of articles 11, 14 and 15 this is done taking into account of the public interest served by the making public.

Article 11.

The authorities referred to in article 4, §1, may refuse an application:

  1. if the application remains manifestly unreasonable or formulated in too general a manner after the authority has requested the reformulation of the first application, as referred to in article 18;
  2. if the application concerns administrative documents that are unfinished or incomplete.

Article 12. The exceptions specified in articles 13 to 15 apply without prejudice to any other exceptions specified by the law, the decree or the order on grounds related to the performance of the duties of the federal government, the community or the region.

Subsection II.
Information not related to environmental matters


Article 13.

The authorities referred to in article 4 will reject an application to make public, insofar as it is not concerned with environmental information:

  1. if the making public prejudices an obligation to secrecy specified in a matter falling under the competence of the community or the region;
  2. if the making public prejudices the protection of individual privacy, unless the person concerned consents to the making public;
  3. if the making public prejudices the confidentiality of the deliberations of the Flemish Government and of the responsible bodies that depend from it, if it prejudices the confidentiality of the deliberations of the organs of the Flemish Parliament as well as the confidentiality specified by law or decree of the deliberations of the organs of the authorities referred to in article 4, §1, 3° to 10°;
  4. if the case concerns administrative documents that were compiled exclusively for criminal or administrative penalty proceedings;
  5. if the case concerns administrative documents compiled exclusively for the possible implementation of disciplinary measures, for as long as the possibility of a disciplinary measure continues;
  6. if the case concerns administrative documents that contain information provided by a third party without this party being compelled or obliged to do so, and which the said party has explicitly designated as confidential, unless this person consents to the making public.

Article 14.

The authorities referred to in article 4 will reject an application to make public, insofar as it is not concerned with environmental information, if they are of the opinion that the importance of making public does not outweigh the importance of protecting any one of the following interests:

  1. an economic, financial or commercial interest of one of the bodies referred to in article 4, §1;
  2. the confidential nature of the international relations of the Flemish Region or the Flemish Community and of the relations between the Flemish Region or the Flemish Community and the supranational bodies, with the federal government and with other communities and regions;
  3. the confidential nature of commercial and industrial information, when this information is protected to safeguard a legitimate economic interest, unless the party from whom the information originates agrees to the public nature thereof;
  4. the dispensation of justice in civil or administrative proceedings and the possibility to obtain a fair trial;
  5. the confidentiality of the actions of an authority insofar as this confidentiality is required for administrative enforcement, the performance of an internal audit or the political decision-making process;
  6. public order and safety

Subsection III.
Environmental information


Article 15. Translation not available

Section III.
Correction or completion of administrative documents


Article 16. If a person finds that an administrative document contains incorrect or incomplete information about him, this person can compel the competent body to correct or complete this information, on the condition that he is able to present the necessary documentary proof. To this end he must submit an application for correction or completion to the competent body. The correction or completion is performed free of charge. If a law or decree prescribes a specific procedure, the correction or completion can only be performed on the basis of this procedure.

Section IV.
The application procedure


Article 17.

§ 1.

The application must be submitted in writing. This is understood to mean an application submitted by letter, fax, e-mail, or handed over personally.

 

The application must clearly indicate the matter concerned, including if possible the administrative documents in question, the form in which the information is preferably to be made available, as well as the name and correspondence address of the applicant. In the case of environmental information it may also include a proposed period within which the applicant wishes to receive the information.

 

The applicant is to demonstrate his identity and, as the case may be, must provide proof that the person from whom the information originates consents to the making public, if the request concerns:

  1. matters of individual privacy, as referred to in article 13, 2°, or article 15, §1, 1°;
  2. confidential commercial or industrial information, as referred to in article 14, 3°, or in article 15, §1, 7°;
  3.  information provided by third parties without these parties being compelled or obliged to do so, and which the said parties have explicitly designated as confidential. as stipulated in article 13, 6°, or in article 15, §1, 5°.

 

§ 2.

The applicant is under no obligation to prove an interest.

 

However, for the making public of personal information, the applicant must show that his legal position may be affected directly and personally by either:

  1. the information;
  2. the decision the information relates to;
  3. the decision for the preparation of which the document containing the information was drawn up.
This interest must only be shown insofar as the case concerns other than environmental information and insofar as this personal information does not pertain to the applicant.

 

§ 3.

The application must be submitted to the authority that has the administrative document at its disposal or has deposited it in an archive. It may also be submitted to the communications official referred to in article 31, §1.

 

In the event of the application being submitted to the communications official or to an authority that does not have the administrative document at its disposal, as soon as possible this authority or the communications official must forward the application to the authority that presumably does have the document at its disposal. The applicant must be informed of this immediately. If the application is submitted to an archive and concerns an administrative document that was deposited in an archive by an authority, then the archive must forward the application to this authority immediately.

 

The authority that receives an application and has the administrative document at its disposal or has deposited it in an archive, must immediately record the application in a register, indicating the date of receipt. This registration is public to the applicant.


Article 18.

If the request is manifestly unreasonable or formulated in too general a manner, as soon as possible the authority must ask the applicant to complete his application or to reformulate it in a more specific manner. The authority informs the applicant why the application is manifestly unreasonable or formulated too generally.

 

To the extent possible it should also be indicated which information is required about the information requested in order to be able to comply with the application.


Article 19.

Without prejudice to possible delegation, the decision concerning the application is taken by:

  1. For the Flemish Parliament: by the parliamentary clerk;
  2. for institutions and agencies attached to the Flemish Parliament: by an authorised executive personnel member;
  3. for the authority referred to in article 4, §1, 2° by an authorised executive personnel member of the authority having the administrative document at its disposal
  4. for the municipalities and districts:by the secretary;
  5. for the provinces: by the provincial clerk;
  6. for other municipal and provincial institutions and the non-profit associations specified in article 4, §1, 5°: by the chairman of the board of management;
  7. for the associations of provinces and municipalities and other forms of cooperation referred to in article 4, §1, 6°: by the chairman of the association;
  8. for the O.C.M.W.s and the associations, referred to in section 12 of the organic law of 8 July 1976 concerning the public centres for social welfare (O.C.M.W.s): by the secretary; of the O.C.M.W. or the Director of the association;
  9. for polders and water control authorities: by the dyke warden of the polder or the chairman of the water control authority;
  10. for the church councils and the bodies entrusted with the administration of the temporal possessions of the official religions: by their chairman;
  11. other bodies within the Flemish Region and the Flemish Community: the authorised representative in accordance with applicable regulations and statutes.

Article 20. Translation not available

Article 21. The municipalities must cooperate with the authorities referred to in article 4, §1, 2°, with the submission and processing of the applications and for the carrying out of the decisions. The Flemish Government establishes further rules and regulations for this cooperation, after prior consultation.

Section V.
Appeal procedure


Article 22.

The applicant may lodge an appeal against a decision made by an authority referred to in article 4, §1, either after the expiry of the term within which the decision had to be taken, or in the event of the decision being carried out reluctantly. He must lodge this appeal with an appeal body composed of officials and appointed by the Flemish Government.

 

The appeal must be lodged in writing, by fax or by e-mail within a period of thirty calendar days which, depending on the case, begins on:

  • the day after the decision is sent;
  • the day after the expiry of the term, referred to in article 20, §3, first subsection.
In keeping with article 35 the term to lodge an appeal will not start if no decision has been made.

Article 23. The appeal body that receives an appeal must immediately note this in a register, indicating the date of receipt. This registration is public to the applicant who has lodged the appeal and to the authority involved. The appeal body must inform the authority referred to in article 4, §1, of the appeal immediately.

Article 24.

§ 1.

The appeal body pronounces on the appeal and informs the applicant of its decision in writing, by fax or by e-mail within a period of thirty calendar days.

 

If the appeal body is of the opinion that the information requested will be difficult to collect in a timely fashion, if the verification of the application as regards the grounds for exception referred to in articles 11 to 15 will be difficult to complete in time, then the appeal body must inform the party lodging the appeal that the period of thirty calendar days is extended to forty-five calendar days. The decision to extend the term must include the indication of the reason or reasons for the delay.

 

If the application for making public is refused on the basis of articles 13, 2° or 6°, article 14, 3°, or article 15, §1, 1°, 5° or 7°, then the appeal body is to contact the person concerned and asks whether the applicant has permission to get access to the administrative document requested.

 

If the application for making public relates to an administrative document which incorporates a work protected by intellectual property rights, the appeal body must in any event point out this fact in its decision.

 

§ 2.

If the appeal body allows the appeal, it permits the making public, correction or completion.

 

§ 3.

The authority that has the information in its possession or has deposited it in an archive, must implement the decision to allow the appeal as soon as possible and at the latest within forty calendar days. With the decision to extend the term, referred to in article 24, §1, second subsection, the period for the implementation of the decision is extended to at most fifty-five calendar days.

 

If the authority has not implemented the decision within the period referred to in the first subsection above, then the appeal body will carry out the decision as soon as possible.

 

For the authorities referred to in article 4, §1, 3°, 4°, 6°, 7°, 8° and 9°, the appeal body may direct an official to proceed on-site and carry out the decision himself. This can only be done after a warning in writing. The implementation is performed at the personal expense of the person responsible for the decision of the appeal body not being carried out.

 

Article 20, §3, second to fourth subsections, are similarly applicable.


Article 25. If an appeal is lodged, the appeal body can inspect all administrative documents on-site or they can be retrieved from the authority concerned. The appeal body can hear all experts and parties involved and may ask the personnel of the authority to provide additional information.

Article 26. The appeal body carries out its duties fully independent and neutral. It is not allowed to receive instructions with the hearing of appeals. Its members may not be evaluated and no disciplinary proceedings may be brought against them on the basis of the reasons constituting the grounds for their decisions within the framework of the tasks assigned to them in this decree.

Article 27. The appeal body is to deliver an annual report to the Flemish Government about the appeals that were lodged and the implementation of passive open government. The Flemish Government presents this annual report to the Flemish Parliament.

Chapter III.
Active open government


Article 28.

§ 1.

Every authority referred to in article 4, §1, 2° to 8°, is under the obligation to inform the population or the target groups concerned in a systematic, exact and balanced manner, in good time and using plain language about its policies, regulations and service and about the rights given to the population under this decree. For the authorities referred to in article 4, §1, 10°, the Flemish Government can specify which of these authorities should as yet comply with the obligation specified in the previous subsection.

 

§ 2.

Within the framework of active open government no information is disseminated that comes under the exceptions referred to in articles 13, 14 and 15. Insofar as environmental information is concerned, if appropriate the authority must indicate that an administrative document is made public only partly. To the extent possible it is to indicate the locations where information was left out and also on the basis of which provision of articles 11, 12, 15 and 17, §2, this was done.


Article 29.

§ 1.

A joint file is compiled, containing familiarisation information and primary information from and about the public authoritys named in article 4, §1. The familiarisation information indicates where the person looking for information can find either information about a specific subject, or where he should address himself in the case of a specific problem or administrative procedure to be dealt with. Primary information is basic information that is not bound to a specific dossier, and which is made easily accessible.

 

The data file is unrestricted and accessible free of charge for anyone, both digitally and at the public counter of the public authoritys concerned.

 

§ 2.

In anticipation of the compilation of the joint file referred to in §1, each province and municipality is to publish a document containing a description of the competence and internal organisation of all administrative authorities falling under the province or municipality concerned. This document shall be made available to anyone requesting it. As soon as the joint file has been compiled, the obligation on the provinces and municipalities described in this paragraph is cancelled.

 

§ 3.

The Flemish government is charged with compiling, managing and providing access to this joint file. The authorities referred to in article 4, §1, are to lend their cooperation after prior consultation.


Article 30. The environmental authorities are to ensure that, to the extent possible, the environmental information relevant to their duties and which they have at their disposal or which is managed for them, is categorised, accurate, comparable and kept up to date. The environmental authorities designated by the Flemish Government are to ensure that the environmental information is disseminated to the population or to the target groups concerned in an active, systematic and transparent way and made available in an effective manner. The Flemish Government prescribes which environmental information is to be disseminated at least and establishes rules and regulations about the way in which environmental information is to be disseminated and made accessible.

Article 31.

§ 1.

Within the framework of active open government the Flemish Government appoints a communications official with each Flemish ministry. The Flemish Government may also appoint a communications official with any internal privatised agency without legal personality.

 

§ 2.

The Flemish Government is to appoint a communications official with each internal privatised agency having legal personality.

 

§ 3.

The board of management of every external privatised agency must appoint a communications official.

 

§ 4.

The Flemish Government can establish specific rules and regulations with respect to the competence, legal status and operation of the communications officials referred to in §§1 to 3, and as regards the coordination of their activities.

 

§ 5.

The provincial council, the municipal council and the council for social welfare must each appoint a communications official.


Article 32.

§ 1.

The communications officials referred to in article 31 are charged with the preparations and realisation of communications policy. They are to stimulate, coordinate and supervise the communications of the public authority concerned. Their duties include providing information to the population in general and the target groups concerned about the policies pursued, about specific decisions concerning them, and about the services provided by the public authority concerned.

 

§ 2.

The communications officials are charged with the duty to see to it that the wording of all administrative documents intended for the people is correct and understandable.

 

§ 3.

In order to be able to perform the tasks referred to in §1, the communications officials are entitled to ask to be provided with any useful documentation or to be allowed to peruse and inspect such documentation in the location where it is normally stored.


Article 33.

§ 1.

Each year the Flemish Government is to present to the Flemish Parliament a general, coordinated report and an evaluation of the communications policies of and the communications made by the Flemish ministries, the internal privatised agencies having legal personality and the external privatised agencies. This report is presented to the Flemish Parliament for information and relates to the year before.

 

§ 2.

The Flemish Government can impose specific rules and regulations concerning the generic aspects and the coordination of communications policies on the Flemish ministries, the internal privatised agencies having legal personality and the external privatised agencies.


Article 34. Any correspondence originating from an public authority as referred to in article 4, §1, must include the name, capacity, address and telephone number of the person able to provide further information about the dossier concerned.

Chapter IV.
Stating of the possibilities of appeal


Article 35. Translation not available

Chapter V.
Modification and rescinding provisions


Article 36.

Article 37.

Article 38.

Chapter VI.
Temporary and final provisions


Article 39. Within five years after the entry into force of the decree, the Flemish Government is to present a report to the Flemish Parliament about the way in which the decree has been implemented and if necessary proposes amendments to the decree.

Article 40. Until it is decided otherwise by the competent body, the information officials appointed in implementation of the decree of 23 October 1991 concerning the public nature of administrative documents in the services and institutions of the Flemish Government, and the information officials appointed in implementation of the decree of 18 May 1999 concerning open government and the law of 12 November 1997 concerning open government in the provinces and municipalities, will henceforth perform their duties as communications officials, as specified in Section III.

Article 41. In anticipation of the operationalising of the public authoritys as provided by article 31, §§1 to 3, the Flemish Government shall appoint a communications official to the Ministry of the Flemish Community and likewise the Board of Management of every Flemish public institution of the Flemish Region and the Flemish Community shall appoint a communications official.

Article 42. Any applications and notices of appeal that have already been submitted on the date of the entry into force of this decree will continue to be processed in accordance with the applicable provisions of the decree of 18 May 1999 concerning open government and the law of 12 November 1997 concerning open government in the provinces and municipalities.

Article 43. This decree enters into force on the date of its publication in the Belgian Official Journal.