Advice for administrative authorities and courts: ‘Open your files on citizens’
Clear language and better rules on confidentiality. These are just a couple of recommendations by Leiden researchers to improve access to information for citizens in legal proceedings against administrative authorities. Government bodies and the judiciary should share information as early as possible and as much as possible.
Researchers Annemarie Drahmann, Ymre Schuurmans and Louis Honée presented their conclusions and recommendations yesterday at 'Open Thursday', a network event organised by Kenniscommunity Informatie en Archief. Their report is aimed at tightening administrative legislation and improving legal practice.
The researchers identified how the position of citizens can be strengthened in court action against a municipality, province or national government and when the need information from those bodies that relates to their case. This information can be relevant from the moment a person or company files a notice of objection.
The study was prompted by a 2022 manifesto that highlighted the imbalance between the information that governing bodies have on citizens and the information held by citizens themselves. This raised the question of how citizens can get access to the same information that the government already possesses. The study also stems from the Open Government Action Plan and a programme set up by the Ministry of Justice and Security.
Unequal position
The study revealed that citizens without a lawyer or other legal aid provider, have a weaker and therefore unequal position vis-à-vis a municipality or other government body. This is all the more problematic as legislation and procedures are becoming increasingly complex and therefore harder for citizens to understand.
Drahmann: 'If a citizen appeals against a decision on a permit, for example, it’s become increasingly important for them to be able to substantiate their objections with evidence. The courts do less of their own fact-finding than in the past. As a result, it’s now more important for citizens to be aware of all the information the government has. After all, it’s only fair if both parties are in a position of equal information, so equality of arms.’
Open access to information
Citizens should have to make less effort to obtain documents and other information from the file that government bodies compile in court proceedings, the researchers claim. Conversely, government bodies and the judiciary should put more effort into giving citizens that information.
‘Currently, citizens are required to do a lot in relative terms to obtain documents’, the researchers write in their report. ‘Citizens need to be aware that the case file may be incomplete. They need to be assertive enough to request these documents themselves. Often, they have to make an effort to find out how and where the documents can be requested. So, it’s important that both administrative bodies and judges anticipate this and act on it as early as possible.’
Confidentiality
The researchers also looked at how government bodies keep information confidential during court proceedings. Schuurmans: 'Ultimately, the judge must ensure that the citizen receives a fair trial, despite them not knowing certain information. Sometimes this means that the judge will have to take compensatory measures. It should also be possible in special cases for the judge to critically question the party claiming confidentiality – often the government body – behind closed doors. This would help in establishing the truth.'
Recommendations for transparency in procedures
Drahmann, Schuurmans and Honée presented a dozen recommendations concerning access of citizens to their case files and the openness of the information contained in the files. These should lead to both administrative authorities and the courts being more sensitive to the citizen's need for information. The judiciary could ask whether the process is sufficiently transparent, i.e. comprehensible, for the citizen. Drahmann: ‘After all, why don't the administrative authority and the judge actually take a moment to ask the citizen if they still need documents for their lawsuit?’
Jan-Willem Oomen
Photos: Layla Hassan
Photo banner: Wesley Tingey on Unsplash