The Information Transparency Problem in Europe

It is official, I am frustrated. I have met enough roadblocks in the past few months related to my graduate research project to now officially declare that I perceive a serious information transparency problem in Europe.

Allow me to first admit that, as a U.S.-trained lawyer, I have perhaps become overly accustomed to the luxuries of online databases Lexis and Westlaw. With an (admittedly expensive) subscription, one can have online access through these services to virtually every published decision in the U.S. at the state and federal levels. Furthermore, these databases offer complete access to legislative history many other documents.

But more importantly for timely topics (such as those involving technology), the U.S. Administrative Procedures Act mandates certain levels of transparency for the Federal Communications Commission and other federal organizations. Filings by the public, interested parties and others in a given procedure can be accessed real-time on the FCC web pages. Letters are scanned. Comments can be made to others comments. The discussion is alive. While this process can be slow and burdensome, it is quite transparent. And it makes my present occupation � researching developments in FCC spectrum policy � a relatively straightforward one. At times, it is even fun.

I recognize and accept that Europe has language and legal complexities in its many different legal systems that would make the implementation of unified databases like Lexis, Westlaw and other documents a practical impossibility.

But there are other problems. It extremely difficult to make a fair comparative law and policy study between Europe and the U.S. because European rulemaking is almost totally closed until it is complete. It is secret, and it takes place almost underground. Even after a given rulemaking procedure is complete, the inputs and discussions are never fully disclosed. If members of industry are lucky enough to be invited to a rulemaking event, they are provided with secret passwords to intranet sites that they may not share with others. This phenomenon takes place at virtually all levels of European law and policy making � including the European Commission, the CEPT, and the individual member states. The common view is that too many cooks spoil the kitchen. So only summarized outcomes are publicized. The inputs, the debate, and the outcomes are censored, sometimes under the cloak of confidentiality, sometimes because a single person decides that a given document should not be released. It is an old-school, communist-style information-is-power mentality, and it severely cripples healthy academic debate. Most importantly (even if perhaps selfishly), it makes my present occupation as a graduate researcher an extremely difficult and often frustrating one.

All is not lost: I should note that I have benefited from one aspect of European transparency, the European equivalent of the Freedom of Information Act. This is a fantastic procedure, and it can help one get access to old print documents, microfiche, and other sources at the Commission level. But often in order to find out what documents one needs, it is often necessary to have developed a network of personal relationships and know first what it is that you want. I do not yet have that network, I do not know the secret handshake.

I am not saying that Europe should adopt the often cumbersome process like the rulemaking procedure mandated by the United States� Administrative Procedures Act. But I believe that there is a serious transparency problem, and I hope that the debate will continue (like the one initiated by the founders of this blog) until regulators Europe-wide realize that the public just might not spoil the kitchen. Maybe they could even have something useful to say. And maybe providing researchers (both public and private) with information about studies and work in progress could have a positive public benefit.