University

Confidentiality hampers transparency

No prying eyes

The participation councils at the RUG are having an increasing number of meetings behind closed doors. The main reason? They want to prevent unwanted publicity. Media rights lawyer Christien Wildeman says this development is ‘worrying’.
By Zander Lamme and Menno van der Meer / Translation by Sarah van Steenderen / Illustration Kalle Wolters

29 March.

The university council’s agenda has an item about universities using their own financial reserves to invest in educational quality until government funds kick in. According to the Netherlands Court of Audit, not enough funds have been spent on educational quality. The board of directors disagrees. And since the disagreement concerns public funds, it’s a serious issue.

But the board wants to discuss the issue behind closed doors. ‘It’s an exploratory document, containing official advice’, says vice president Jan de Jeu. ‘I don’t think it’s a good idea to just share that with everyone.’

Jasper Been, with student party DAG, thinks this is nonsense. He has called for public access to the documentation. ‘I have seen the contents of the document and I think it’s fine to discuss it here.’ The students with Lijst Calimero, as well as the Personnel faction, support his proposal. SOG and the Science faction say they are proponents of public access ‘in principle’.

Unmoved

But the board remains unmoved. The confidential document will not be up for discussion during the public meeting, and council members are forbidden to discuss it outside council chambers. ‘If the board doesn’t want to lift the confidentiality on this document, neither I, nor the council can do anything about that’, say Tim Huiskes, the council’s neutral president. ‘Whether or not we agree with why the document remains confidential doesn’t matter in this case.’

In the Netherlands, the parliament is in charge of monitoring the government. Municipalities are kept in check by their municipal councils, and the RUG has its university and faculty councils that advise and monitor the managers. The meetings held by these democratic bodies should be public.

Nevertheless, incidents such as the one described above are happening more frequently – and not just in the university council.

Faculty councils sometimes make parts of their agenda confidential, leaving only the start of the meeting and the final questions open to the public. And up until a year ago, meeting documents were freely available to anyone interested; but now, some faculties only allow outside parties to view documents after the meeting. They can’t take them out of the room.

Is this allowed?

Why are participation councils discussing so many important issues behind closed doors, out of sight of the academic community that they serve? And more importantly, is that even allowed?

‘Essentially, everything is public’, says RUG professor of administrative law Herman Bröring. But there are cases where this principle doesn’t apply; for example, when the documents contain personal information. Sensitive information about businesses – such as a renovation tender, or the like – could also be made confidential.

According to Bröring, even the meetings between the board of director and a faculty board are allowed to be confidential. ‘Otherwise, you can’t say what you want, share ideas, or make tentative suggestions. You don’t want to be held accountable for every single thing you say. That just hampers the process.’

Fear of the media

But when a faculty board limits public access out of fear of the media, it’s a different matter altogether. The faculty of Philosophy and the University College, for example, do this quite often. ‘Anything that’s sensitive and about which we haven’t made a final decision is made confidential’, says Philosophy Dean Lodi Nauta. ‘A few years ago, we felt that on several occasions we received negative media attention for spurious reasons. This has led to more confidentiality than is strictly necessary.’

The general rule: everything is public, unless otherwise stated

University College dean Hans van Ees goes even further: ‘We want to discuss these issues with the people affected by them. The discussion might be influenced by outside publications and opinions.’ That is something he’d like to prevent.

Media rights lawyer Christien Wildeman calls this media fear ‘worrying’. She works at the Amsterdam firm of Kennedy Van der Laan. ‘Making things confidential when they needn’t be is denying the media’s watchdog function. The whole idea of public access is to allow it to influence the decision-making process.’

‘Imagine’, she says, ‘if for all the debates in the Lower House they said: “We’d prefer to vote first, and we’ll tell you what we decided afterwards. It’s just easier that way.” We have to base our judgement on a proper discussion.’

WOB

Leiden professor of media rights Wouter Hins emphatically agrees with her. ‘This is exactly why the Government Information (Public Access) Act (Wob) was created’, he said. ‘The general rule is: everything is public, unless otherwise stated.’ Preventing publicity is not a proper argument. ‘That directly countermands the Government Information Act.’

Boards and councils should be as open as possible, he says. ‘If they represent the people, the people need to know what’s being discussed. You always have to confirm that making something confidential is actually justified.’

Why, then, was a statement by the board from the faculty of behavioural and social sciences about evening exams made confidential? And why was an update about how the study advance at spatial sciences was spent announced behind closed doors?

Grey area

It’s difficult to say when these councils are breaking the rules. When a document is labelled ‘internal consultation’, it can stay confidential. The same applies when a manager argues that making a document public might harm someone involved or the RUG’s finances. Hins: ‘That raises the question: do these interests outweigh the public interest?’

It’s a grey area. While some faculty councils never make any of their dealings confidential, others do so seemingly indiscriminatley. Some faculties will send anyone who’s interested a package with documents to prepare for the meeting, while others only make them available after the meeting, in one specific location, and only for inspection.

Hins is dismayed by this practice. ‘What they’re doing is making it very difficult for people to gain access to a public document. That’s not right. If it’s solely to discourage people from viewing your documents, your motives aren’t pure.’

Yantai

Withholding information can also have the adverse effect of people becoming even more frustrated and dissatisfied with administrative bodies. The discussions about the RUG board’s plans to start a campus in the Chinese city of Yantai were all held behind closed doors; many employees didn’t know what was going on and felt like they weren’t being heard.

Sometimes people are already agitated, and you don’t want to make that agitation worse

When the clustering proposal to abolish departments at the arts faculty first came up in a meeting, the discussion was deemed ‘confidential’ while that meeting was underway. ‘Sometimes people are already agitated, and you don’t want to make that agitation worse’, says Gerry Wakker, dean at the arts faculty. ‘The cluster budgets were such a work in progress back then that we couldn’t in good conscience discuss them in public. Preliminary information going around the faculty can increase the agitation among people.’

But in January of this year the agitation at arts reached its climax anyway, when history professor Eelco Runia quit his job and wrote an opinion piece for the NRC Handelsblad. An important reason for his dissatisfaction was the policy concerning the clustering process. Once again, he said, staff felt they weren’t being heard.

Mistrust

Members of the university council say that clearer rules about public access are a good idea. ‘Many of the current rules are open to interpretation, and that can lead to discussions’, says council chair Huiskes. ‘And the board does tend to make things confidential pre-emptively; that can actually lead to the very mistrust they are trying to avoid.’

DAG’s Jasper van Been and Calimero’s Henk Jan Wondergem agree with Huiskes. ‘As soon as transparency becomes a problem for the board, they automatically start hiding behind confidentiality’, says Been. ‘And as long as they come up with some excuse that they have used before, they can pretty much get away with anything.’ Wondergem: ‘The concept of participation is completely lost this way.’

Huiskes argues that the university council’s public documents, which are currently only available upon request, should ‘simply’ be put on the RUG website. Been and Wondergem agree. ‘Public access is extremely important, especially in a public institution’, says Been.

Lawyer Wildeman says that people who want increased public access should also make themselves heard. Boards should ask themselves why they’re blocking public access, again and again. ‘They have to promote that concept of things being public unless otherwise stated.’

The legal context

Two laws apply to public access and confidentiality of documents and discussions in the RUG’s participation councils (the university council and the faculty councils): the Government Information (Public Access) Act (Wob) and the Higher Education and Research Act (WHW).

The Wob determines when documents can be made confidential. Every administrative body must base their actions on the ‘public interest of access to information’.

The WHW determines when (parts of) meetings can be held behind closed doors. This law states that the university council has a duty to priortise ‘openness, public access, and reciprocal consultation to the best of its abilities’.

The RUG’s rules of procedure for the university council and the faculty councils are based on the WHW; every participation council implements the legislative standards separately.

sources

  • To investigate how public access and confidentiality work in both the university council and the faculties involved, the Universiteitskrant spoke with a number of university representatives.
  • We spoke to six deans: Lodi Nauta with philosophy, Kees Aarts with behavioural and social sciences, Marial Joëls with medical sciences, Gerry Wakker from the arts department, Jasper Knoester with science and engineering, and Hans van Ees at the University College.
  • We also talked to five faculty council chairs: Michiel Duchateau with the faculty of law, Robbert Maseland with economics and business, Marc van der Maarel with science and engineering, Bastiaan Aardema from the arts faculty, and Gerd Weitkamp with spatial sciences.

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