The twelve ministries in the Netherlands have paid a total of 386,200 euros in periodic penalty payments in 2021 and 2022, because they did not comply with information requests in time. These are requests based on the Open Government Act (Wob) and the Open Government Act (Woo), which replaced the Wob on 1 May. Every Dutch person can request government documents, from policy decisions to messages from ministers, by relying on the law. Investigative journalists use it a lot.
The government may refuse information on a number of grounds. What is not allowed is deciding on a request too late. The legal decision period is 28 days, which can be extended by 14 days. If the government has not released the documents by then, the applicant can go to court. He can set a new term and impose a penalty. This is usually 100 euros for each extra day that the term is exceeded, increasing to a maximum of 15,000 euros, to be paid to the applicant.
According to journalists who have experience in requesting information via the Wob and Woo (‘wobben’, as it is called), the penalty payments are not an effective means of obtaining documents quickly.
The almost four tons in penalty payments that the ministries paid relate to the period January 1, 2021 to July 20, 2022. These figures have NRC requested from the ministries (without having to appeal to the Woo).
Two weeks ago, the payment of periodic penalty payments was in the news when de Volkskrant reported about a Wob request that she had submitted to the Ministry of Health, Welfare and Sport (VWS) in May last year. The newspaper had asked for app and text messages between top officials about the face mask deal between VWS and Sywert van Lienden and his partners in 2020. A decision by the ministry was not forthcoming for months, after which the judge imposed a penalty and VWS eventually paid 15,000 euros. Volkskrant had to pay. VWS first objected, but eventually accepted the penalty.
VWS says it will deliver the requested messages in a few months. Wouldn’t go earlier. The ministry has received 481 Wob and Woo requests in the past year and a half, 237 of which were about corona. According to the ministry, it still has millions of documents to go through.
Seventy extra lawyers
The situation differs per ministry. The Department of Education, Culture and Science (the only one) did not have to pay anything during this period. The Ministry of Infrastructure and Water Management (I&W) paid the most: 93,650 euros.
For not meeting the decision deadlines, the ministries point in particular to the lack of manpower. They emphasize their good will: I&W says it has expanded the number of employees. VWS hired seventy extra lawyers to review requests.
The penalty figures do not say everything about how often the government exceeds the decision period. The government is late in 80 percent of the cases, calculated the NGO Open State Foundation this year. That is many hundreds of cases per year. But the figures from the ministries show that the penalty payments relate to a small number of procedures. Not everyone who does not receive their information in time goes to court. The amounts are also not always claimed. Late decisions therefore usually go unpunished.
In addition to the almost four hundred thousand that the ministries paid out, at least 318,300 euros was also ‘forfeited’ during the aforementioned period. This means that the money has not (yet) been transferred or claimed by the submitters. Two thirds of this is related to procedures at the Ministry of Health, Welfare and Sport. The Ministry of Agriculture, Nature and Food Quality was unable to provide full amounts forfeited.
For wobbly journalists, the penalty payment system offers a bit of a crowbar to still get documents. “I do have the idea that it regularly does something,” says Erik Verwiel, journalist and Woo specialist at de Volkskrant. “But if a ministry continues to refuse for whatever reason, you can wait until Sint-Juttemis.”
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According to Joost Oranje, coordinator of investigative journalism at NOS News and the much wobbly news hour, ministries “laugh” at the amounts, which he sees as a symptom. “In the Netherlands we have been struggling for decades with open government. The original intention of the Wob and the Woo was: ‘all government information public, unless’. In practice, governments actively look for grounds for refusal, which they often interpret broadly.”
“Of course there are nuances in this story,” says Oranje. “De Woo provides a lot of work, and there are governments and officials who take it seriously. But in general, I don’t see a compelling belief in the government apparatus that government information belongs to all of us.”
Also wobber Lucien Hordijk from freelance journalists collective The Investigative Desk does not immediately detect malice – “at least not among the executive officers” – but rather systemic rot. “It starts with a very neglected archiving structure and understaffing. If there is a pandemic then you have a perfect storm.”
Hordijk saw requests several times leading to high penalties. Wry and uncomfortable, he thinks: he would rather just get the information. “If this becomes normal, the government almost seems to be rewarding me for not being able to do my job.” Hordijk, who writes about medicines and vaccinations, spent “hundreds of hours” in legal wrangling over the Wob/Woo over the past year and a half.
Continue to litigate
With regard to the ‘Sywert files’, De Volkskrant does not leave it alone and tries to extract information with law firm Kennedy Van der Laan. “We have asked the judge to impose a new, higher penalty.” Verwiel doubts whether VWS will be shocked by this. “We do it mainly to send a signal.”
Nieuwsuur and The Investigative Desk litigated against the working method of VWS, whereby it decides for itself which information it discloses at what time. “We are normally wary of legal proceedings, it takes a lot of energy and time. But this went further than the usual coaching,” says Oranje. After the judge had corrected the approach of the ministry, the Council of State ruled on appeal in October that it may gradually release information. But also that the ministry was too late with these requests, and had opted for too long a schedule for the release of information that had not yet been provided.
Despite all the frustrations, Orange still sees hope under the Woo. “There will be an advisory board that can check whether documents have been correctly refused. I hope this college will show teeth.” He also notices that administrative judges are slowly starting to judge more firmly. “But ultimately the ball is in the House of Representatives to come up with better legislation.”