Published on 6 March 2023

THIRD SECTION

Application no. 20066/18 NEDERLANDSE OMROEP STICHTING and Others against the Netherlands lodged on 18 April 2018 communicated on 17 February 2023

SUBJECT MATTER OF THE CASE

The applicants are the public service broadcaster ( NOS ), a commercial broadcaster ( RTL ) and a national newspaper ( De Volkskrant ) who on various dates in 2014 sought access to information relevant to the handling of the crisis by the Government regarding the downing of flight MH17, including all documents of the Ministerial Committee for Crisis Management MH17 and the Interdepartmental Committee for Crisis Management MH17 and diplomatic correspondence. They relied on the Transparency of Public Administration Act ( Wet openbaarheid van bestuur (“Wob”) , recently replaced by the Open Government Act; Wet open overheid ).

The requested information was released in part, some documents were redacted, some were withheld in their entirety. The Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ), ruling on the matter in final instance on 25 October 2017, noted at the outset that the grounds for refusal enacted in the Wob may be assumed to provide for restrictions necessary in a democratic society in the interests enumerated in the Article 10 § 2 of the Convention, but that this is a rebuttable assumption. It further noted that while aspects such as the capacity of the requesting person or the topic of the requested information are, in principle, not of relevance for the assessment of a request for access to information on the basis of the Wob, such aspects are of importance when assessing it from the perspective of Article 10 of the Convention.

Having accessed the documents in question, it found that the interests served by releasing them did not outweigh the interests served by the refusal to do so, namely, “relations with foreign States and with international organisations, privacy interest, disproportionate prejudice and personal policy views”. It further held that a prima facie case that there were very special circumstances ( zeer bijzondere omstandigheden ) that might result in the finding that the interference with rights under Article 10 of the Convention was unjustified had not been made out. It did not suffice in this connection merely to state that the applicants were journalists. Moreover, the fact that there was a considerable public interest found sufficient expression in the relevant provisions of the Wob and the weighing of interests made in the application of these provisions. Lastly, much information had been made public through other channels.

The applicants, relying on Magyar Helsinki Bizottság v. Hungary (GC) , (no. 18030/11, 8 November 2016) complain under Article 10 of the Convention that the refusal to disclose the documents in question disproportionately infringed their right as journalists to impart information on issues of general interest. In their view, the domestic courts have failed to properly scrutinise that refusal in the light of the Convention standards.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicants’ freedom of expression, in particular their right to receive and impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC] , cited above, §§ 149-80; Šeks v. Croatia , no. 39325/20, §§ 60-65, 3 February 2022; and Saure v. Germany , no. 8819/16, §§ 50-54, 8 November 2022)?

APPENDIX

Application no. 20066/18

No.

Applicant’s Name

Year of registration

Nationality

Place of residence

1.NEDERLANDSE OMROEP STICHTING

2009Dutch

Hilversum

2.DE VOLKSKRANT B.V.

1932Dutch

Amsterdam

3.RTL NEDERLAND B.V.

2004Dutch

Hilversum