Port of Antwerp and FIT called to order by the Appeal Body for Freedom of Information

The Flemish Government's appeals body for freedom of information has ruled that both the Port of Antwerp and Flanders Investment & Trade must hand over information about Ineos's future plastics factory to environmental organisation Recycling Netwerk, unless they can prove there is a legal ground for exemption.

On 15 February 2019, Recycling Netwerk Benelux requested Flanders Investment & Trade and the Port of Antwerp to provide copies of all information in their possession regarding the development of the new plastics factory in the Port of Antwerp. The environmental organisation wants to gain insight into the environmental problems that the new factory could cause.

On 8 March, the Port of Antwerp (HA) refused to hand over the copies to Recycling Netwerk, citing the economic, financial, and commercial interests of the HA, as well as the confidential nature of commercial and industrial information to safeguard a legitimate economic interest (of Ineos).

Flanders Investment & Trade (FIT) refused to grant these copies on 4 March. FIT relied on two arguments: 1) that Recycling Netwerk Benelux does not hold Belgian nationality and 2) that Recycling Netwerk's request for information was too broadly formulated, which according to FIT "would involve efforts that manifestly exceed the boundaries of reason".

Recycling Netwerk has appealed against both decisions, and the appeals body has since considered the matter.

Read also: The Guardian, Ineos may have to disclose secret details of £2.6bn Antwerp project, 3 May 2019

Decision of the appeals body

The appeals body of the Flemish government decided on the appeal on 23 April. The text of the decision reveals that the Port Authority did submit some documents to the appeals body. It subsequently ruled that those documents indeed contain information that can legitimately be exempted from the right to public disclosure.

However, the decision of the appeals body also reveals that there are around 500 documents for which it is unclear whether access has been lawfully denied. The Port Authority must submit those documents at the request of Recycling Netwerk, unless it can still prove that those documents can be exempted on legitimate grounds.

On 24 April, the Flemish Government's appeals body ruled that FIT's reasoning does not hold water. After all, the Governance Decree dictates that policy documents must be handed over to "everyone" who requests them, regardless of nationality. The appeals body even refers to the European Convention on Human Rights for this. Furthermore, FIT has failed to substantiate that Recycling Netwerk's request was too broadly formulated.

The decision of the Appeals Body also shows that FIT refused to allow the Appeals Body itself to inspect the administrative documents concerned. FIT was only prepared to show one document, the business proposal, to the Appeals Body. That document contains information about support measures (subsidies, financing, taxation) that Ineos can expect if the construction plans in the Port of Antwerp go ahead.

Given the nature of this document, which concerns, among other things, the expenditure of public funds, transparency is important, precisely because it involves a major investment with a potentially significant negative impact on the Flemish environment and Flemish economy. However, the appeals body ruled that for competitive reasons, it does not have to be released.

However, the appeal by environmental organisation Recycling Netwerk was indeed found justified by the appeals body for all other information. FIT must therefore hand over that information, unless it can demonstrate that a document falls under a ground for exemption.

Strange arguments from FIT

The Decision also reveals that FIT handles the right to public disclosure in a strange way. For instance, in a meeting with the Appeals Body, FIT stated that (p. 6 of 9):

With this, FIT is actually saying that, because it concerns a potentially polluting industry, they intend to provide as little transparency as possible. From a public service in the 21st century, in the midst of a climate crisis, we expect exactly the opposite.

The following passage also raises serious doubts about the way FIT handles regulations:

In summary: the larger the investment, the less significant transparency should be, according to FIT.

Money and transparency

Strengthened by the ruling of the appeals body, Recycling Netwerk will continue to ask the Port of Antwerp and FIT to release all information regarding the decision-making process. "The ball is therefore back in the court of FIT and the Port of Antwerp. The appeals body makes it clear to them

The Flemish Government's appeals body for freedom of information has ruled that both the Port of Antwerp and Flanders Investment & Trade must hand over information about Ineos's future plastics factory to environmental organisation Recycling Netwerk, unless they can prove there is a legal ground for exemption.

On 15 February 2019, Recycling Netwerk Benelux requested Flanders Investment & Trade and the Port of Antwerp to provide copies of all information in their possession regarding the development of the new plastics factory in the Port of Antwerp. The environmental organisation wants to gain insight into the environmental problems that the new factory could cause.

On 8 March, the Port of Antwerp (HA) refused to hand over the copies to Recycling Netwerk, citing the economic, financial, and commercial interests of the HA, as well as the confidential nature of commercial and industrial information to safeguard a legitimate economic interest (of Ineos).

Flanders Investment & Trade (FIT) refused to grant these copies on 4 March. FIT relied on two arguments: 1) that Recycling Netwerk Benelux does not hold Belgian nationality and 2) that Recycling Netwerk's request for information was too broadly formulated, which according to FIT "would involve efforts that manifestly exceed the boundaries of reason".

Recycling Netwerk has appealed against both decisions, and the appeals body has since considered the matter.

Read also: The Guardian, Ineos may have to disclose secret details of £2.6bn Antwerp project, 3 May 2019

Decision of the appeals body

The appeals body of the Flemish government decided on the appeal on 23 April. The text of the decision reveals that the Port Authority did submit some documents to the appeals body. It subsequently ruled that those documents indeed contain information that can legitimately be exempted from the right to public disclosure.

But the decision of the appeals body also reveals that there are around 500 documents for which it is unclear whether access has been lawfully denied. The Port Authority must submit those documents at the request of Recycling Netwerk, unless it can still prove that those documents can be exempted on legitimate grounds.

The Flemish Government's appeals body ruled on 24 April that FIT's reasoning does not hold water. After all, the Governance Decree dictates that policy documents must be handed over to "everyone" who requests them, regardless of nationality. The appeals body even refers to the European Convention on Human Rights for this. Furthermore, FIT has failed to substantiate that Recycling Netwerk's request was too broadly formulated.

The decision of the Appeals Body also shows that FIT refused to allow the Appeals Body itself to inspect the administrative documents concerned. FIT was only prepared to show one document, the business proposal, to the Appeals Body. That document contains information about support measures (subsidies, financing, taxation) that Ineos can expect if the construction plans in the Port of Antwerp go ahead.

Given the nature of this document, which concerns, among other things, the expenditure of public funds, transparency is important, precisely because it involves a major investment with a potentially significant negative impact on the Flemish environment and Flemish economy. However, the appeals body ruled that for competitive reasons, it does not have to be released.

However, the appeal by environmental organisation Recycling Netwerk was indeed found justified by the appeals body for all other information. FIT must therefore hand over that information, unless it can demonstrate that a document falls under a ground for exemption.

Strange arguments from FIT

The Decision also reveals that FIT handles the right to public disclosure in a strange way. For instance, in a meeting with the Appeals Body, FIT stated that (p. 6 of 9):

With this, FIT is actually saying that, because it concerns a potentially polluting industry, they intend to provide as little transparency as possible. From a public service in the 21st century, in the midst of a climate crisis, we expect exactly the opposite.

The following passage also raises serious doubts about the way FIT handles regulations:

In summary: the larger the investment, the less significant transparency should be, according to FIT.

Money and transparency

Strengthened by the ruling of the appeals body, Recycling Netwerk will continue to ask the Port of Antwerp and FIT to release all information regarding the decision-making process. "The ball is therefore back in the court of FIT and the Port of Antwerp. The appeals body makes it clear to them that in principle they must provide copies of all information. And if they do not do so, they must demonstrate why they are invoking an exception," analyses director Rob Buurman of the environmental organisation.

"We are shocked by the reluctance of the Port of Antwerp and FIT in particular. The government seems to be acting as a gatekeeper for a foreign investor, where it is highly questionable whether this is good for Flanders. Apparently, waving a bag of money is enough to set aside regulations."

"The construction of Ineos's massive plastics factory will likely have a significant environmental and climate impact. The decisions on this must therefore be open to broad social and political discussion. We expect this Flemish government agency to provide the greatest possible transparency regarding the policy decisions that led to the agreement in principle with Ineos. But so far, FIT is using one argument after another to try to keep documents secret," the environmental organisation concludes.

Read also: De Standaard, Port of Antwerp must release information about plans for plastics factory, 2 May 2019 Apache, Port Authority and FIT prefer to keep negotiations with INEOS secret, 2 May