Passive open government
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.
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".
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.
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.
Exceptions to open government
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.
The authorities referred to in article 4, §1, may refuse an application:
- 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;
- 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.
Information not related to environmental matters
The authorities referred to in article 4 will reject an application to make public, insofar as it is not concerned with environmental information:
- if the making public prejudices an obligation to secrecy specified in a matter falling under the competence of the community or the region;
- if the making public prejudices the protection of individual privacy, unless the person concerned consents to the making public;
- 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°;
- if the case concerns administrative documents that were compiled exclusively for criminal or administrative penalty proceedings;
- 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;
- 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.
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:
- an economic, financial or commercial interest of one of the bodies referred to in article 4, §1;
- 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;
- 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;
- the dispensation of justice in civil or administrative proceedings and the possibility to obtain a fair trial;
- 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;
- public order and safety
Article 15. Translation not available
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.
The application procedure
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:
- matters of individual privacy, as referred to in article 13, 2°, or article 15, §1, 1°;
- confidential commercial or industrial information, as referred to in article 14, 3°, or in article 15, §1, 7°;
- 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°.
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:
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.
- the information;
- the decision the information relates to;
- the decision for the preparation of which the document containing the information was drawn up.
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.
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.
Without prejudice to possible delegation, the decision concerning the application is taken by:
- For the Flemish Parliament: by the parliamentary clerk;
- for institutions and agencies attached to the Flemish Parliament: by an authorised executive personnel member;
- 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
- for the municipalities and districts:by the secretary;
- for the provinces: by the provincial clerk;
- 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;
- 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;
- 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;
- for polders and water control authorities: by the dyke warden of the polder or the chairman of the water control authority;
- for the church councils and the bodies entrusted with the administration of the temporal possessions of the official religions: by their chairman;
- 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.
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:
In keeping with article 35 the term to lodge an appeal will not start if no decision has been made.
- the day after the decision is sent;
- the day after the expiry of the term, referred to in article 20, §3, first subsection.
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.
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.
If the appeal body allows the appeal, it permits the making public, correction or completion.
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.