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03.24.09

Does the European Commission Harbour a Destruction of Free/Open Source Software Workgroup?

Posted in Europe, Free/Libre Software, Microsoft at 8:48 am by Dr. Roy Schestowitz

Summary: Access to already-leaked documents is denied, despite clear rules that make it an obligation

HAVING WITNESSED some serious injustices where Microsoft's American lobbyists took over Europe and subverted the continent's assessment of Free software, we decided to respond. Recall “Innovation Day” and the Wiki-leaked document that eventually reached Matt Asay at CNET. Since it had become public knowledge that all of this was happening, it was only reasonable to ask for the full details to be revealed. So we embarked on little journey that we shall describe hereon.

The first step was a request for the documents. These should be in the public record, even without getting leaked out. It is, after all, the “free open source” component of the European Software Strategy.

After a long look and some inquiries, we managed to get hold of E-mail addresses from which to request the documents simultaneously, not independently as that would lead to duplication of effort. We sent this to two of the (potentially) responsible people, only one of whom replied, which makes perfect sense.

Here is the first communication:

Request for the Contributions of ACT to European Commission Report

Hi,

I have just read http://news.cnet.com/8301-13505_3-10193433-16.html with great concern. This suggests that a Microsoft lobbyist, J Zuck, is tilting a report on open source software against its whole raison detre? Since I can only find this document in Wikileaks (and it is therefore out there already), would it please be possible for me to receive a copy of Zuck’s edits? I have always mailed Zuck and he confirmed to me that he is on this panel.

Could you please send me confirmation that you have received this request and preferably mail me the edits too? This should be an open process

I appreciate your time.

We received a response shortly afterwards:

Dear Mr. Schestowitz,

All request from the press should be directed towards the spokespersons of the relevant area.

We replied:

Hi [anonymised],

Thank you for responding.

Who is the spokesperson in this case? I could find no information about it, but I do know about my entitlement to receive this information:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R1049:EN:HTML (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents)

One of our involved readers responded with “An outrage I say. An absolute outrage! Europe to the Europeans!”

The response we received next is the following:

Dear Mr. Schestowitz,

The document you are referring to is not a European Commission document, but a document that are made by Zuck and many others from industry.

All the European Commission’ spokespersons are listed here: http://ec.europa.eu/dgs/communication/contact_en.htm

This page contains the names of about 100 people. We are not able to see who to speak to, having already identified the people who are adequate for this type of communication. So they pushed us away, which was not terribly useful.

Next, we wanted to get an official answer from the Spokesman. We were also advised to prepare a list of E-mail addresses of MEPs of the LIBE committee who are responsible for the pending access to documents directive. We accumulated this information and sent another polite request similar to the one above, namely:

I have just read http://news.cnet.com/8301-13505_3-10193433-16.html with great concern. This suggests that a Microsoft lobbyist, J Zuck, is tilting a report on open source software against its whole raison detre? Since I can only find this document in Wikileaks (and it is therefore out there already), would it please be possible for me to receive a copy of Zuck’s edits? I have always mailed Zuck and he confirmed to me that he is on this panel.

Could you please send me confirmation that you have received this request and preferably mail me the edits too? This should be an open process[1].

I appreciate your time.

_____
[1] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R1049:EN:HTML (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents)

[...]

3 days have passed and we received no response from this third person. We omit names to protect their privacy.

Going back to the more responsive correspondent, getting a reply is one thing, but according to the legal base, we must make a “confirmatory application”, so we did. Commission officials are obliged to help us and it is irrelevant who wrote it. What counts is that the Commission is in possession of the document. If they say it is a document of “the industry”, then they are obliged to consult the third party if they are in possession of it. To quote the legal base:

(a) “document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

[...]

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

[...]

Article 6

Applications

1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made.”

Article 7

Processing of initial applications

1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

We shared the response that we had initially received with one of our readers to get a second opinion. The person said: “I read that the commission is telling you that the leaked document does not belong to them which means: 1) they are taking distance from their own ESS initiative [OR] 2) they are scared to be identified by it.”

Moreover, said that reader, “you are ENTITLED to get assistance from the commission as long as it is an European commission-backed WG document. So you have to insist and demand this. At the very least you can report on the Commission’s attitude on this and attitude on Zuck.”

Finally, in order to make it more formal and compliant with the directive/regulations, we wrote again to the responsive official who is familiar with these matters. Our message — in full — was as follows:

Document access application purpusant to Article 6 EC/1049/2001

As a reply, please answer the following

1. If you intend that

“The document you are referring to is not a European Commission document, but a document that are made by Zuck and many others from industry.”

is a negative reply upon my 1049/2001 request of access to the document please consider the specific provisions of the regulation that guide your obligation in the formal processing of an application under 1049/2001. For instance you have the formal obligation to “inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.” and the statement above is not in line with the formalities under 1049/2001.

If your statement was such a negative official reply, please regard this mail as a request for a confirmatory application under 1049/2001 for access to European Software Strategy documents. The origination of the document is irrelevant. You have to state reasons for access refusal. I inform you about the substance of Art 4.4 “As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.”

If you regard it as just an informal preliminary communication please just process the following clarified primary application.

2. I hereby request electronic access to all documents related to the Towards the European Software Strategy process in the possession of the EU-Commission, in particular access to the following documents:
* the list of participants in the industry expert group
* the list of WGs, WGs sleaders and observing Commission officials
* draft contributions of all industry Working groups on a the European Software Strategy
* draft input to all WG prepared by the Commission
* the participant list of the related meeting on January 20th in Brussels
* all submissions from industry to the ESS consultation under the applicable provisions of regulation 1049/2001 which grant me a right of access to all documents mentioned above.

I appreciate your kind assistance. If you feel that you are unable to process my request yourself it is your obligation to forward it to the competent person in the Commission.

Fortunately, a formal acknowledgment was soon received:

Dear Mr Schestowitz,

Thank you for your e-mail dated 20/03/2009 registered on 23/03/2009 I hereby acknowledge receipt.

Yours sincerely,

[...]

Is this how politics are intended to work? Since we already possess evidence of a scandal and it’s all over the press, why can’t those officials come forward and offer the transparency they must, as a matter of law? Since they refuse to make reasonable disclosure upon request, this leaves room for more of a scandal. The first scandal is the involvement and subversion of the panel but the second is the officials’ refusal to resolve the issue or at least bring it to light.

pound puppies.
Keep out while the responsible adults do their thing…

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5 Comments

  1. Reality Jones said,

    March 24, 2009 at 11:22 am

    Gravatar

    You’re looking for a scandal, but in reality it is more probable that the official who needs to reply to your request has yet to be identified by her or his 90,000 colleagues.

  2. NotZed said,

    March 24, 2009 at 4:27 pm

    Gravatar

    Yes, that is exactly how politics works. Don’t be so naive!

    And one things the Europeans are good at is making the politics complicated.

    The only way to get results is if you have money – soft bribery or wasting it on lawyers.

    Roy Schestowitz Reply:

    NotZed,

    Yes, that is exactly how politics works. Don’t be so naive!

    It was a rhetorical question. The text does not reflect on it.

  3. Ari T. said,

    March 26, 2009 at 2:13 am

    Gravatar

    “Yes, that is exactly how politics works. Don’t be so naive!”

    I can’t see anything naive in requiring openness from administration which is obliged by law to be open.

  4. S. Urukipe said,

    March 26, 2009 at 9:13 am

    Gravatar

    Maybe the first step should indeed have been to find out more about the context (European Software Strategy (NOT OSS Strategy as wikileaks still has it: http://wikileaks.org/wiki/European_Commission_OSS_Strategy_Draft%2C_Mar_2009), organisation of industry participation, type and status of working groups, type of target document from the Commission’s perspective etc.) rather than starting a doubtlessly lengthy process to get another copy of a document you already have. Everything seems to have started with this speach titled “Towards a European Software Strategy” by EU Commissioner Reding: http://ec.europa.eu/commission_barroso/reding/docs/speeches/brussels_20071119.pdf. If you google for the speech title you’ll find many papers by companies and associations that appear to have been drawn up in response. (NESSI has a document that appears to have been drawn up by the Commission as a summary of the input received, here: http://www.nessi-europe.com/Nessi/LinkClick.aspx?fileticket=7teEO5hzywY%3D&tabid=304&mid=1571)

    Note that the FSFE has already made some relevant points about the wikileak document and its interpretation (particularly the need to be careful to avoid drawing premature conclusions): http://blogs.fsfe.org/greve/?p=251

    (As to the practicalities of finding the right people in the EU to talk to, note that the FSFE page mentions “DG INFSO” which I think is Commissioner Reding’s department so her spokesman should have the details.)

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