Personal policy views should be made public more often by judges

Publication date: February 1, 2024

Tim blogs about WOO statements for SPOON Part #11: judges in Gelderland did a groundbreaking ruling about personal policy views. From now on, these must be made public in all documents from the entire process that precedes decision-making.

The 'opinion' of officials

“Personal policy views”: a term that no one understands exactly, that doesn't cover the point and (that's why?) is often the subject of discussion when it comes to the Woo. The law does not contain a definition, but a description of the type of information that in any case and in any case does not fall under it: “Personal policy views include official advice, views, views and considerations for internal deliberation, other than facts, forecasts, policy alternatives, the consequences of a particular policy alternative or other elements with a predominantly objective character.” In common parlance, this is sometimes reduced to the “opinion” of officials, not limited to the the official's personal opinion, for example, from a religious or political point of view.

Warnings kept away

Under the Public Administration Act (Wob), governing bodies were allowed to sweep away all personal policy views in all documents. The use of this exception took on increasingly extensive forms: it refused entire pieces; it was easily the most common ground for refusal. This sometimes had serious consequences. With the Allowance affair, it became finally clear to the Parliamentary Committee on Childcare Allowance, but also to the ministers involved: protecting personal policy views under all circumstances had helped to keep official warnings and advice away from controlling bodies for so long.

Tightening up in the Woo

For a while, there was even talk that Prime Minister Rutte would have heralded that the ground for refusal was completely overhauled.¹ That later turned out to be a misunderstanding.² However, in the new one came Open Government Act (Woo) to provide a more precise and detailed description of what is considered a personal policy. From now on, policy views would no longer be covered up in 'definitive' documents. In practice, these became the so-called decision notes, the last piece containing the considerations on which the minister bases his decision, before it goes to the House of Representatives. But when the Woo came into force, the question was whether that law did not go beyond what the Rutte cabinet was already going to do as part of the new administrative culture. Indeed, the new legal article on personal policy views said this: “Without prejudice to paragraphs 1 and 2. is drawn up from documents for formal administrative decision-making by a minister, a King's Commissioner, Deputy States, a deputy, the College of Mayor and Aldermen, a mayor and an alderman, provides information about personal policy views in a form that cannot be traced back to individuals, unless the ability to conduct internal deliberations is disproportionately harmed. '³

“Minister's Bag”

An illegible and incomprehensible sentence, but loosely translated, is here: when a document is prepared prior to “decision-making”, disclosure of personal policy views is the starting point. In all other documents, this is the other way around, then omission is the norm, although it must be seen whether anonymization would not also adequately address the concerns. In short, it matters quite a bit whether and when “documents drawn up for formal administrative decision-making” are involved. As with so many articles of the law, the legislator's explanation is a drama full of contradictions. No strings attached to it.Out with an appeal to the Woo released pieces from the Ministry of Internal Affairs, it turned out that when the Woo was introduced, the official top was of the opinion that it was only about the aforementioned decision notes. The very last piece on the basis of which the minister (or mayor or commissioner of the King) takes a formal decision, which goes along in the “minister's bag”. By sending the decision notes to the House with every letter as standard, the top officials thought they were ready.⁴

Memo Palm.. ehhh... Nunspeet zoning plan

That already seemed questionable to me, because why shouldn't it also apply to all previous documents prepared “for” decision-making? The Gelderland District Court has now ruled that documents throughout the entire process of a decision-making process can indeed be included. And even, that the final decision does not have to be a formal decision, just for the absolute geeks. This case dated January 11, 2024 involved a memo about a zoning plan in the municipality of Nunspeet, Gelderland, in which an official had pointed out shortcomings to the alderman and how they could be repaired. The municipality had refused to make the memo public in its entirety. The court is making short work of that, first of all because, as mentioned, what is considered a personal policy view has been tightened under the Woo. “Indeed, a large part of the memo consists of facts that are not personal policy views, such as the finding that a particular investigation has not been carried out”, “the municipality's conclusion that no other request has been made for the construction of an object” and “the comment that the... agreement includes that the municipality should commission a certain investigation.”

The entire process

But that's not all. The judges are clearly better than me at understanding legal explanations and note that this shows that the legislator intended decisions 'in the administrative sense', not just formal decisions. 'The memo was drawn up in the process of the draft zoning plan. In this process, administrative choices must be made. In certain parts, the memo also requires an administrative choice by the alderman or the college. Making this administrative choice stems from the public task of the alderman or the college. “This means that the municipality should have and will have to explain why “the ability to conduct internal deliberations is disproportionately harmed” if they believe that the personal policy views in the memo should remain secret. “Disproportionate” means something like “more than usual.”

Accountability from A to Z

In short, if it's up to these judges, citizens (and the city council) should be able to ask for and receive accountability from A to Z for all considerations and events in the making of administrative decision-making. And wasn't that exactly why we have the Woo? The only question remains whether the municipality of Nunspeet will appeal to the Council of State. Although, of course, it would be nice if the Supreme Administrative Court ratified this ruling.

Hint:If documents you request are rejected due to personal policy views, see if you can tell from the title or inventory list description whether they are part of a decision-making process. In other words: whether they are part of preparing for an administrative decision. Yes? Then it may make sense to object or appeal against the refusal.

Tomorrow, at 11:00 a.m., the Council of State will hear a case where one of the most positive legacies of the Benefits Affair is at stake. As an expert, I will reinforce the applicant's position on behalf of the SPOON Foundation, Expertise Center for WOO Applicants. One of the conclusions of the Parliamentary Interrogation Committee on Childcare Allowance (POK) was that the provision of information to the House of Representatives had seriously failed. The ultimate failure was the now famous Memo Palmen, in which she recommended that the policy of completely stopping surcharges, high recoveries and fines should be stopped immediately. The POK's findings shortly prompted the House of Representatives to include an amendment to the Open Government Act. In order to detect disasters such as the Allowance Affair earlier, advice such as Sandra Palmen, even if they were “personal policy views” intended for internal use, had to be fully public from now on. This became article 5.2.3 of the Woo. Coincidence or not, it is another Memo that is the subject of the first case about this new rule that reaches the Supreme Administrative Court. This time, it concerns a memo from a local government official who presumably pointed out imminent shortcomings in revising a zoning plan with regard to a single lot to his political boss, the alderman. The alderman finally persevered and changed the zoning plan. Different scale, same principle. And that also means that the repercussions of this case could be great for many future cases. Tomorrow, I will defend this achievement of the Benefits Affair tooth and nail to prevent it from becoming a dead letter at the first test. Read my analysis of the court's ruling, which proved right by the applicant in the Gert W. case, here. https://expertisecentrumspoon.nl/blog/persoonlijke-beleidsopvattingen-moeten-van-rechter-vaker-openbaar-jurisprudentieblog-11/