Public access to documents under Public Records Act: "blacking out" information not permitted
On 8 March 2017 the Administrative Law Division of the Council of State issued a decision clarifying that the Public Records Act (Archiefwet) does not permit a partial disclosure of documents, for example by blacking out certain information, as is possible under the Government Information (Public Access) Act (Wet openbaarheid van bestuur, "WOB").
In principle, governmental authorities are required under the WOB to disclose information about governmental matters to any person on request (section 3 WOB). However, it is common knowledge that documents provided pursuant to a WOB request regularly contain sections that have been blacked out to make them unreadable. This practice – not disclosing the document in full – must be based on one of the grounds set out in sections 10 and 11 of the WOB. For example, information disclosing state secrets or a civil servant's personal viewpoint on a policy question may be blacked out.
The Public Records Act follows a different system. This Act requires that some government documents (including photographs) be stored in the State Archive, which is in principle accessible to the public. However, when a document is added to the archive, the State Archivist may impose a restriction on its disclosure (see sections 15 -17 Public Records Act). The restriction then applies to the entire document and the system is called a "document system". This differs from the approach taken in the WOB, under which specific information in the document is withheld rather than the whole document as such. In contrast to the Public Records Act, the WOB creates what is called an "information system".
The Administrative Law Division's recent decision makes clear that, as a result of the difference between these two systems, blacking out information is only permitted under the WOB. The restriction of public access under the Public Records Act, unlike that under the WOB, relates to the whole document as such. "It would not be in keeping with this system for the State Archivist to modify a document – for example by anonymisation – before providing it for inspection." (ABRvS, 8 March 2017, ECLI:NL:RVS:2017:620, legal ground 4.1) The appellant's standpoint that the State Archivist could have furnished the requested documents after blacking out parts of it was therefore rejected.
Once a document has actually been transferred to the State Archive and is no longer in the possession of the relevant governmental authority, it can in principle no longer be the subject of a WOB request. Such a transfer will take place after 20 years (section 12 Public Records Act) or earlier with the State Archive's consent (section 13 Public Records Act).
