Summary

This dissertation is a reflection of a study to examine the question as to whether there is a right to obtain information in the control of another person, and if so, under what conditions such a right to information (hereinafter referred to as 'right of access') is afforded and what is its scope of application. In addition, the position of this right within the system of Dutch substantive private law and civil procedure is discussed.

Chapter 2 offers a concise overview of the history of the law governing access to information in the Netherlands. The right of access was first referred to in the Draft Civil Code (BW) as presented to the States General on 22 November 1820. It was laid down in Articles 3344 through 3347 of the Draft BW, but never became law.

Articles 19 and 24 of Title 1, Book Two, of the 1825 Civil Code, which also failed to come into effect, contained mies governing access as well. The two articles provide for a broad right of access, under which the owner of the document is irrelevant. The legislator intended to afford any person having a probative interest in the contents of the document a right to inspect it and/or to make a copy of its contents.

The third Draft of the Civil Code that did not come into effect, the 1830 Draft, provides for a right of access in Article 1932. As to substance, the article affords a virtually unqualified right of access, under which a third party, who has the document in his possession, may also be obliged to allow a litigant involved in civil proceedings with another party access to the document. The article does provide for a procedural limitation in the sense that proceedings must have been instituted between the parties in question.

The Civil Code that came into effect in 1838 contains a right of access in Articles 1922 and 1923. The articles remained in force until 1 May 1988, but have always led a lingering existence. The main reason for this is the view obtaining at the time that, based on the premise that no person can be obliged to present evidence against himself, a party could only obtain access to documents if he was jointly entitled to the document; the phrase: `If various persons share a common legal ground (titel) ' in Article 1922 BW was thus interpreted. In his dissertation, Van Blommestein, one of three persons who between 1885 and 1893 wrote a dissertation on Articles 1922 and 1923, was of the opinion that the word 'common' in Article 1922 BW did not imply joint ownership. In its judgment of 20 May 1921 (1-11Z 20 Mei 1921, NJ 1921, pp. 788[Weisbard e.a. —de Ridder]), the Netherlands

Supreme Court seems to attribute a much broader meaning to the word `common' than merely 'joint ownership'. This only becomes definitively apparent, however, in its Judgment of 31 January 1947 (I-IR 31 Januari 1947, NJ 1948, 115[Baus-N. De Koedoel). In this judgment, the Supreme Court reasoned that the right, provided in Article 1923 BW, to the surrender of records is afforded to those, who may rely on it for evidentiary purposes. This broad interpretation did not lead to an increase in the use of the articles governing such a right of access.

On the occasion of the review of the law of evidence, which came into effect on 1 April 1988, many articles dealing with evidentiary matters were transferred from the Civil Code (BW) to the Code of Civil Procedure (Rv). The rules governing access to information were laid down in Articles 843a and 843b Rv. The right that is the object of this study was laid down in Article 843a Rv. The transfer did not lead to more frequent reliance on the article.

On the occasion of the review of the Code of Civil Procedure, which came into force on 1 January 2002, Article 843a Rv was amended once again. The result was a rather generous right of access, under which uncovering the actual truth has gained more in significance than the premise that no person is obliged to present evidence against himself.

The right of access to information is analysed in Chapter 3. The precise substance of this right proves to depend heavily on the answer to the question as to what is deemed more important: uncovering the actual truth, or the proposition that no person is obliged to produce evidence against himself. It turns out that the proposition that no person is obliged to produce evidence against himself has neither a legal basis in civil procedural law nor can it be satisfactorily justified. In contradistinction, the legislator has increasingly attached more weight to uncovering the actual truth. This is reflected in Article 21 Rv, which prescribes that a party is under a duty to assert the relevant facts fully and truthfully, and in Article 22 Rv, which provides that in all instances and in all stages of the dispute the court may order the parties to provide information or to submit records. Nevertheless, it became evident that there are limits to uncovering the actual truth. For instance, the court may not independently browse through the exhibits submitted and pursuant to Article 149 Rv it must accept as established all facts asserted by the one party that are acknowledged by the other party or insufficiently contested by the latten This is one of the articles that bar too much interference by the court.

As Chapter 4 shows, attempts are made, within the context of the European Union, to harmonise civil procedure within Europe. One of the initiators of this endeavour is Marcel L.L.V. Storme. Under his chairmanship, a commission bearing his name has published the Storme Report' (Rapport Storme). 'La découverte des documents-discovery' is one of the fifteen subjects discussed in the report. It is stated in the report that there are major differences among the EU member-state countries in the way in which the right of access is conceived of. The Storme Commission has attempted to find some sort of common denominator between all these varying rules governing access to information. It has laid down this denominator in a -rather voluminous- legislative draft. The law governing access to information commences with the right to receive a list of documents. On the basis of this list, the other party may request to inspect these documents or to receive copies thereof. Not much has action thus far taken place in connection with the Storme Report.

As regards protection of the internal market and consumer protection, the European Commission has taken the view that there is a need to combat counterfeiting and piracy. An important aspect in this battle is the gathering and protecting of evidence. The right to information, to access information, may serve as an important instrument here. This thought has been developed in Directive 2004/48/ EC. In the Netherlands, the Directive has been implemented by way of Articles 1019a Rv ff, which came into effect on 1 May 2007. These articles only provide for such a right of access to information where infractions of intellectual property occur.

In the meantime, the European Commission has published a Green Paper and a White Paper dealing with EC anti-trust law, in which an extensive right of access is proposed in the field of competition law.

It follows from Chapter 5 that legal development has not ceased in the Netherlands either. In its report from 2006, entitled 'Uitgebalanceerd', the Asser, Vranken and Groen Commission pays the necessary attention to the right of access. According to the Commission, its current regulation in Article 843a of the Code of Civil Procedure (Rv) is not well-suited. It proposes to create a more comprehensive set of rules, including a pre-action duty to produce evidence, in the form of pre-action disclosure, within the context of pre-action protocols.

In part as a result of the desire expressed by the Minister of Justice, Hirsch Ballip, to arrive at some form of disclosure, the Civil Procedure Advisory Commission (Adviescommissie voor het Burgerlijk Procesrecht) has taken this task upon itself and has devised a set of rules. The regulation departs from seven premises and has turned out rather lengthy. In spite of its length, the regulation has not managed to create clarity on those points in relation to which the current regulation also raises questions; questions which as yet remain unanswered. Solutions have been found for minor problems only and this is partly the reason why the regulation as proposed by the Advisory Commission must not become law.

The probative importance of the right of access is explained in Chapter 6. The law of evidence has received the attention it deserves rather late and the position within the law of evidence of the rules governing access has been recognised rather late as well. When the right of access was still incorporated into the Dutch Civil Code, it had been placed with the provisions governing evidence, where it received linie attention. No explanation is found in parliamentary history as to the reason why upon their transfer to the Code of Civil Procedure the articles governing access were not included in the rules governing evidence. Now that uncovering the actual truth is gaining in importance, the relevance of the law of evidence increases as well and the right of access may play a larger part. In recent years, the right was given such a part, in effect, in connection with Articles 21 and 22 of the Code of Civil Procedure. On the basis of two judgments passed by the Netherlands Supreme Court, the conclusion may be drawn that imbalances in the possibilities to adduce evidence do not solely have to be remedied by the duty to assert the facts and the duty to substantiate the assertions, but also by the pos sibility, or perhaps even a duty, for the court to order a party to introduce a specific document into the proceedings.

In Chapter 7 an analysis is made of the literature and the case law relating to the four components of Article 843a, paragraph 1, Rv: lawful interest' (rechtmatig belang), the words `inspection, copy or excerpt' (inzage, afschrift of uittreksel) and `specific records' (bepaalde bescheiden) and lastly 'as regards a legal relationship in which he is involved as a party' (aangaande een rechtsbetrekking waarin hij partij is). There is no consensus as to the content and portent of, in particular, the components lawful interest' and 'a legal relationship in which he is involved as a party'. The interpretation of the two components by scholarly writers depends to a major extent on their own legal-political view of the importance of uncovering the actual truth. The more important such uncovering is deemed by the author, the broader the definition given by him or her to these concepts.

As in the literature, there is no consensus in case law as to the content and scope of application of, in particular, the components lawful interest' and 'a legal relationship in which he is involved as a party'. In some instances, the courts have interpreted the two concepts extensively, but there are also decided cases in which the court has departed from a rather narrow perspective.

In Chapter 8 the author presents his own view of the four components of Article 843a, paragraph 1, Rv. A manageable paraphrase of the words lawful interest' cannot be given. The interest must relate to the assertion or the substantiation of the facts. The interest may manifest itself at any stage whether before or dwing the court proceedings, and for this reason a party must be in a position to exercise the right at any moment. It is to be preferred that the content and scope of application of these two words correspond with the criterion to be applied to the question of whether a witness may be heard or not. The interest must be sufficiently specified. Access must be reasonably necessary.

Where the interest is sufficiently serious, the words `inspection, copy or excerpt' also include surrender of a document, such as the turning over of an authentic document for the purpose of document comparison.

Within the context uncovering the actual truth, the word 'record' (bescheid) must also be interpreted broadly: a car, which has been dented as a result of an accident, may be a 'record', because the speed with which the other car had approached may be inferred from the depth and measurement of the dent. The word `specific' (bepaald) in the phrase `specific records' (bepaalde bescheiden) precludes requests for random access. `specific' does not limit the number of records. A sufficiently specified request may yield a truckload of documents.

Thus far, the Netherlands Supreme Court has only once, in its Judgment of 18 February 2000 (HR 18 Februari 2000 NJ 2001, 259), made a reference as to the content of one of the four components of the first paragraph, i.e. in relation to the term Ca legal relationship in which he is involved'). In the judgement, the Supreme Court arrives at the conclusion that the required legal relationship must exist between the claimant and the party who is in control of the document. However, this conclusion is not correct: if C has in his possession a written agreement entered into between A and B for the purpose of safekeeping it for A, C must allow B access to that document, providing the practical outcome of the three other components of Article 843a Rv do not preclude this. The legal relationship between A and B could also be such that A must allow B access to an agreement entered into between A and C. In determining the content of the term legal relationship', consideration should be given to the concept of `connecting legal relationships' (samenhangende rechtsverhoudingen), namely the actual and/or economic connection between the parties in question; the parties' insight into the connection; the mutual relationship and capacity of the parties; the damage and nuisance the application for access may cause to third parties; and the interest of uncovering the truth. All things considered, the author arrives at the conclusion that the existence of a legal relationship' must be fairly readily assumed.

In Chapter 9, paragraph 2, Article 843a Rv is discussed. An overview is provided of the literature and decided cases in the way in which inspection may be granted, or copies or excerpts may be provided. The court may play an important role here and may deal with the matter creatively by determining, for instance, that access must be granted to parts of the document only, or by assigning a third party to conduct the inspection. Pursuant to paragraph 2, the court could even order the surrender of an authentic document. Article 843a Rv does not provide for a sanction to be imposed in the event of a failure by a party ordered to provide access, to comply with the order. It stands to reason that, analogous to Articles 21 and 22 Rv, the court may draw its own conclusions as it sees fit, if a party refuses access. The court may impose a periodic fine (dwangsom/astreinte), as was ordered, for instance, by the District Court of Zwolle in its Judgment passed on 15 May 2006 (AY5717).

Paragraph 3 of Article 843a Rv is discussed in Chapter 10. The paragraph hardly figures in the literature or in decided cases. This seems to be mainly the result of its self-explanatory nature and the fact that the issue has been reasonably comprehensibly dealt with in relation to Article 165 Rv. The chapter also deals with the possibility to undo any disadvantage a litigant may suffer, because certain information rests with a person bound to secrecy. In its Judgment of 20 January 2006 (HR 20 Januari 2006 NJ 2006, 78), the Supreme Court affirmed the decision by the District Court to switching the burden of proof after a litigant refused to release his physician and his neurologist from their obligation of non-disclosure.

Article 843a, paragraph 4, Rv provides that access does not have to be granted if there are serious reasons for disallowing such access, or if it can be reasonably assumed that proper administration of justice is also ensured without the presentation of this data. Paragraph 4 is discussed in Chapter 11. According to parliamentary history, examples of the above serious reasons are confidential medical data, such as a person' s sexual orientation, or confidential commercial data, or a party's financial position. In addition to the examples referred to in parliamentary history, fundamental rights, such as the right to privacy, may constitute a serious reason for disallowing access. In its Judgment of 20 December 2002 (I-IR 20 December 2002, NJ 2004, 4), the Supreme Court held that the sole fact that a court had ordered, within the context of judicial proceedings in which disclosure of documents was requested, that the document did not have to be disclosed, was not in itself sufficient to arrive at the conclusion that a serious reason obtained. Also in this case, serious reasons may be rendered `inactive', where a court has a neutral third party inspect the information, for instance. The author defends the position that the conclusion that serious reasons obtain, must not be readily drawn. Lastly, the author argues in this chapter that the restriction that access does not have to be granted if it may be reasonable assumed that, even without the presentation of the data, proper administration of justice is ensured, should be abolished, as it is of little added value and may easily result in prohibited prognostication or in the assumption of a (non-existent) hierarchy in the means of evidence.

Chapter 12 deals with the access and disclosure rules that are applicable in the Netherlands Antilles and Aruba. In addition to the operation of an Article 843a Rv in the two countries, the wording of which is almost literally that of the Dutch Article 843a Rv, `disclosure' is also regulated there. A rule exists in the Netherlands Antilles and Aruba, whereby a third party, C, may be ordered to grant access to documents that are in its control. The limitations formulated in the Dutch paragraph 1 of 843a Rv are absent here. This means that the documents referred to in Article 142 Rv do not have to pertain to the legai relationship between A and B. There are very few decided cases relating to the articles in the Netherlands Antilles and Aruba and no relevant literature to speak of has been found.

The issues relating to access in the light of the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens), the Dutch Judicial and Procedural Criminal Data Act (Wet justitiële en strafvorderlijke gegevens) (Wjs) and the Dutch Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten) (WIV) are discussed in Chapter 13. The Personal Data Protection Act played a role in the `Dexia' case, in which several banks, relying on the Act, tried to prevent their clients gaining access to their own client files. The attempts failed. The right of access of Article 843a Rv and the Wjs collide where a party requests access to procedural criminal data in the control of the State. It was established in case law that, where this subject is concerned, the Wjs is considered a lex specialis that supersedes Article 843a Rv. As regards the WIV, the Supreme Court ruled on 11 July 2008 (I-IR 11 Juli 2008, NJ 2009, 451) that the Act does not preclude that in civil proceedings certain intelligence and documents must be made available to the court and the other party.

A party may attempt to avoid access by removing documents. In order to prevent such an act, these documents should be preserved before a party realises that it would be sensible to make them disappear. The question as to whether this can be done by seizing evidence (bewijsbeslag) is discussed in Chapter 14. It becomes evident in this chapter that leave to seize evidence has been granted already in many cases. The presiding judges of the private law divisions of the Dutch District Courts are of the opinion that seizing evidence is possible and have laid down relevant rules in the `seizure Syllabus' (`Beslagsyllabus'). The rules are found in the 5th improved 2005 version of the Syllabus and have been maintained, in amended form, up to and including the current 7th version dating from February 2009. In the meantime, judgments have been passed, in which leave to seize evidence has been refused or revoked. No unequivocal consensus exists on this issue as well. It has even transpired that Judge X, sitting in District Court A, may grant leave to seize evidence, upon which the seizure is lifted by judge Y, sitting in the same District Court, on the grounds of there being no basis in statutory law for the seizure.

Chapter 15 features several procedural issues, among whom the question of the moment at which an application for access may be made; whether an application for access may be made more than once; whether the right of access must be exercised by application or request; the degree of explicitness of the application for access; and what is valid in law if the judgment in preliminary relief proceedings, by which leave to gain access has been granted and access has actually been gained, is reversed on appeal, or where it is held in proceedings on the merits that there had been no necessity for the access. The author defends the position that the knowledge obtained as a result of a decision that was subsequently reversed, will in principle remain to serve as a means of evidence: unlawfully obtained evidence does not automatically imply inadmissible evidence.

In the final Chapter 16, the author proposes a legislative draft governing the right of access. In view of the importance of uncovering the actual truth, the proposal provides for a generous right of access that includes the possibility of seizing evidence. In addition, the same scope is proposed for botte Article 22 and 155a Rv: the court must not have more rights than a litigant.

Translated by Louise Rayar