Flemish government reprimands OVAM for withholding ‘politically sensitive’ litter figures

This was decided by the Appeals Body for the Act on Public Access to Government Information (WOB) after an appeal lodged by Recycling Netwerk Benelux.

The Public Waste Agency of Flanders (OVAM) commissioned KplusV to survey all 308 municipalities on their litter policy as part of the "Biennial litter survey". A total of 118 Flemish municipalities responded to this call.

OVAM refused in October to allow the environmental organisation Recycling Netwerk to inspect the source data for two studies on litter. OVAM motivated its refusal with, among other things, the argument "the sensitivity of the issue of litter and the fact that we are 14 days away from the municipal elections".

Can't see the wood for the trees

The litter study contained the municipalities' data, but only in aggregated form, meaning that as a reader you learned very little about the situation in the Flemish municipalities. For example, it is interesting to see whether best practices can be derived from specific situations, which could then help other municipalities in the fight against litter.

Therefore, at the beginning of August, Recycling Netwerk requested access to the datasets per municipality, which formed the basis of the studies on litter. OVAM provided two Excel documents. However, in one of the documents, the names of the municipalities had been removed.

In addition to the elections, OVAM also gave as a reason that "it was always communicated to the municipalities […] that their individual data would only be used to obtain a global figure for Flanders" and that "stigmatisation" and therefore according to OVAM "the willingness to cooperate in such surveys [could] fall sharply."

Appeals body raps OVAM over the knuckles

The Appeals Body at the Department of the Chancellery and Public Governance has now ruled that none of the total of 5 arguments put forward by OVAM holds water.

The Appeals Body states that OVAM cannot demonstrate that the participating municipalities in the survey explicitly designated the provided information as confidential. The appeals body also indicates that in KplusV's survey to the municipalities "nothing is stated about the confidentiality of the information."

Recycling Netwerk also asked the appeals body to rule on the slow timeframe of 46 days within which OVAM responded. Based on the law, OVAM argued that it was allowed 45 days to respond, whereas according to Recycling Netwerk, OVAM should have released the information within 30 days.

Here too, the appeals body ruled in favour of Recycling Netwerk and found "that OVAM indeed seems to make an incorrect application of Art. 20, § 2, third paragraph and Art. 20, § 3 of the Public Access Decree when calculating the time limits."

Because OVAM was clearly withholding information on improper grounds, the suspicion arises that the information was primarily not released because the municipal elections were approaching. On this, the appeals body states diplomatically that those "arguments […] show no connection with the Public Access Decree."

State secrets

The appeals body therefore ruled in favour of Recycling Netwerk across the board and ordered OVAM to transfer the full datasets.

Rob Buurman, director of Recycling Netwerk, reacted: "withholding information 'for the sake of elections' is of course ridiculous and completely misplaced in the era of transparency. It is a good thing that the appeals body at the Department of the Chancellery and Public Governance immediately reprimands OVAM. The debate on the fight against litter must be conducted in all openness and honesty. The litter figures must no longer be labelled as state secrets".

The administrative body has ordered OVAM to transfer the full datasets to Recycling Netwerk. The environmental organisation will make it a point of duty to make these datasets available to everyone in as open and transparent a manner as possible.

“Political considerations”

Because the refusal regarding the litter figures is so incomprehensible, Recycling Netwerk submitted a second request on 16 October, to gain transparency on the OVAM decision-making procedure that led to the refusal.

But OVAM is refusing that too, the agency announced on 31 October. According to OVAM, the decision "took place almost entirely through oral consultation processes".

The second argument for not providing access to the decision-making process reads as follows: "The requested information contains a political consideration regarding the question of whether, and to what extent, the previously requested information should be made public".

Rob Buurman reacted: "After the bizarre reference to the elections, OVAM is now coming up again with the claim that it is a 'political consideration'!"

While, mind you, OVAM itself has in the meantime informed the appeals body "that it is not for OVAM to determine whether in

This was decided by the Appeals Body for the Act on Public Access to Government Information (WOB) after an appeal lodged by Recycling Netwerk Benelux.

The Public Waste Agency of Flanders (OVAM) commissioned KplusV to survey all 308 municipalities on their litter policy as part of the "Biennial litter survey". A total of 118 Flemish municipalities responded to this call.

OVAM refused in October to allow the environmental organisation Recycling Netwerk to inspect the source data for two studies on litter. OVAM motivated its refusal with, among other things, the argument "the sensitivity of the issue of litter and the fact that we are 14 days away from the municipal elections".

Can't see the wood for the trees

The litter study contained the municipalities' data, but only in aggregated form, meaning that as a reader you learned very little about the situation in the Flemish municipalities. For example, it is interesting to see whether best practices can be derived from specific situations, which could then help other municipalities in the fight against litter.

Therefore, at the beginning of August, Recycling Netwerk requested access to the datasets per municipality, which formed the basis of the studies on litter. OVAM provided two Excel documents. However, in one of the documents, the names of the municipalities had been removed.

In addition to the elections, OVAM also gave as a reason that “it was always communicated to the municipalities […] that their individual data would only be used to obtain a global figure for Flanders” and that “stigmatisation” and therefore according to OVAM “the willingness to cooperate in such surveys [could] fall sharply.”

Appeals body raps OVAM over the knuckles

The Appeals Body at the Department of the Chancellery and Public Governance has now ruled that none of the total of 5 arguments put forward by OVAM holds water.

The Appeals Body states that OVAM cannot demonstrate that the participating municipalities in the survey explicitly designated the provided information as confidential. The appeals body also indicates that in KplusV's survey to the municipalities "nothing is stated about the confidentiality of the information."

Recycling Netwerk has also asked the appeals body to rule on the slow timeframe of 46 days within which OVAM responded. Based on the law, OVAM argued that it was allowed 45 days to respond, whereas according to Recycling Netwerk, OVAM should have released the information within 30 days.

Here too, the appeals body ruled in favour of Recycling Netwerk and found “that OVAM indeed seems to make an incorrect application of Art. 20, § 2, third paragraph and Art. 20, § 3 of the Public Access Decree when calculating the time limits.”

Because OVAM was clearly withholding information on improper grounds, the suspicion arises that the information was primarily not released because the municipal elections were approaching. On this, the appeals body states diplomatically that those “arguments […] show no connection with the Public Access Decree.”

State secrets

The appeals body therefore ruled in favour of Recycling Netwerk across the board and ordered OVAM to transfer the full datasets.

Rob Buurman, director of Recycling Netwerk, reacted: "withholding information 'for the sake of elections' is of course ridiculous and completely misplaced in the era of transparency. It is a good thing that the appeals body at the Department of the Chancellery and Public Governance immediately reprimands OVAM. The debate on the fight against litter must be conducted in all openness and honesty. The litter figures must no longer be labelled as state secrets".

The administrative body has ordered OVAM to transfer the full datasets to Recycling Netwerk. The environmental organisation will make it a point of duty to make these datasets available to everyone in as open and transparent a manner as possible.

“Political considerations”

Because the refusal regarding the litter figures is so incomprehensible, Recycling Netwerk submitted a second request on 16 October, to gain transparency on the OVAM decision-making procedure that led to the refusal.

But OVAM is refusing that too, the agency announced on 31 October. According to OVAM, the decision “took place almost entirely through oral consultation processes”.

The second argument for not providing access to the decision-making process reads as follows: “The requested information contains a political consideration regarding the question of whether, and to what extent, the previously requested information should be made public”.

Rob Buurman reacted: "After the bizarre reference to the elections, OVAM is now coming up again with the claim that it is a 'political consideration'!"

While, mind you, OVAM itself has in the meantime informed the appeals body “that it is not for OVAM to determine whether information is (politically) sensitive or not.” (See: ruling appeals body OVB/2018/247).

“It is clearly not OVAM's job to make all kinds of 'political considerations' about litter figures. As an administration, OVAM is expected in this case to be transparent and to provide information upon request. Political considerations belong in the government and parliament. It therefore goes without saying that Recycling Netwerk will appeal against this second refusal again,” Buurman concludes.

Read also: Apache, OVAM keeps 'politically sensitive' information about litter secret, 2 October 2018 Read also: Apache, OVAM must release 'politically sensitive' figures on litter, 6 November 2018