Proposed Amendments to Improve Luxembourg's Administrative Transparency Law

On Tuesday 25 July 2023, Luxembourg’s Ministry of State announced plans to draft a bill aiming to strengthen access to administrative documents through proposed amendments to the transparent and open administration law, including provisions for professional journalists and alignment with international standards.

The amended law of 14 September 2018 on a transparent and open administration enshrined the universal right to have access to administrative documents held by public authorities and other bodies covered by the law.

Five years after the law came into force, the government has decided, on the proposal of Luxembourg's Prime Minister and Minister for Communications and Media, Xavier Bettel, to instruct the Ministry of State to draw up a draft law amending the aforementioned law to:

• provide a right of access to information for professional journalists;
• strengthen the right of access to documents, in particular when the request is for information and not a specific document (or when only part of a document contains non-communicable information) - these changes will also have the effect of bringing the law into line with the Council of Europe Convention on Access to Official Documents, also known as the “Tromsø Convention”;
• make the application of the law more effective by introducing a legal obligation for organisations to communicate the documents requested to the The Commission on Access to Documents (Commission d'accès aux documents - CAD). 

The Luxembourg Ministry of State aims to also draw up a note for the trainer with ideas on how the next government could possibly reform the CAD by putting in place solid procedural guarantees, such as, for example, the possibility of attributing decision-making power to it and the possibility of a right of appeal not only for the appellant, but also for the organisation.

These proposed amendments to the transparent and open administration represent the result of consultations that the Ministry of State has conducted with key stakeholders. Thus, public bodies submitted an online survey on the application of the law to the latter during the year 2022. The results of the survey were published on the “Open Data” platform. Similarly, interviews with the CAD and with the Press Council have taken place over the past few months.

A working group made up of representatives from the Ministry of State and the Press Council has been set up to conduct discussions with the aim of continuously improving access to public information. During the discussions, the Ministry of State and the Press Council agreed to propose the introduction of a legal obligation for public bodies to provide professional journalists with the information they need to perform their public duties as defined in the law of 8 June 2004 on freedom of expression in the media and following the example of the legislation of some German Länder.

Additionally, there was interest to introduce into the law a proposition similar to that of the Swiss federal law on the principle of transparency in the administration, taking into account the specific needs of the media in the performance of their mission. This implies in particular that the organisations must provide journalists with a response as soon as possible containing either the information requested, or the estimated time required for the communication of the information in the event that the information requested is not immediately available, as well as the reasons why the information is not immediately available, or the legal reasons why the information cannot be provided.

In addition, still in consultation with the Press Council, there was a proposal to adapt the definition of professional journalist in the amended law of 8 June 2004, to specify the legal criteria for assessing the granting of the professional journalist card.

Xavier Bettel, Luxembourg’s Prime Minister and Minister for Communications and Media, said: "The government continues to defend and strengthen the principle of an open and transparent administration and the right of every person to have access to information and public records. Likewise, I have always been committed to a strong and independent press. Through the planned revision of the law, we highlight the importance of the nature of the journalistic profession. At a time when the press is facing multiple challenges, Luxembourg will thus have an exceptional legal framework for access to information in Europe.”

The Press Council expressed satisfaction with the outcome of its long-standing demands to introduce legal provisions specifying the right of access for journalists to information from public administrations. Roger Infalt, President of the Press Council, commented: “Today we take a big step towards a right of access to information worthy of the name, hoping that this right will soon be anchored preferably in the law on freedom of expression in the media if not in the law on transparent and open administration.”