The Government Information (Public Access) Act (Wob) is becoming an increasingly important information gathering instrument for the media. By way of example, a few months ago a news programme invoked the Wob against university hospitals to obtain information about expenses claims filed by directors and the payments made for them. The news programme recently followed this up by making the same request to other institutions (under private law) in the care and social welfare sector. The question is whether these institutions are (also) obliged to meet the request.
Section 3.1 of the Wob enables any person to request information laid down in documents about administrative matters from an 'administrative body or another institution, service or company operating under the responsibility of an administrative body'. Information about the interpretation of the term 'administrative body' is given in Section 1a of the Wob, which stipulates that the Wob applies to:
- the administrative bodies of provinces, municipalities, water boards and a public-law industrial regulatory body;
- administrative bodies working under the responsibility of the bodies listed above;
- other administrative bodies if not exempted by an order in council.
The question of whether a governmental organisation is an administrative body within the meaning of Section 1a of the Wob is answered on the basis of the General Administrative Law Act (Awb).
It is relatively easy to answer this question regarding public university hospitals. They are legal entities under public law by virtue of the Higher Education and Research Act. The executive board of a public university hospital is a body of this legal entity, and therefore an administrative body within the meaning of the Awb. This means that the Wob is applicable and that the public university hospitals - assuming that there are no grounds for refusal under the Wob - are obliged to meet the request for information. Since the special university hospitals VUmc and Radoboudumc are private legal entities, they and the executive boards of these hospitals are not administrative bodies within the meaning of the Awb unless they hold public office. For that reason they do not come within the purview of the Wob. The special university universities therefore provided the requested information voluntarily.
The letter sent by the news programme to the other institutions (under private law) in the care and social welfare sector gives the impression that they could be administrative bodies and therefore come within the purview of the Wob. It is argued that since the university hospitals have met the Wob request, 'unity of law' implies that other institutions in the care and social welfare sector also come under the Wob. The current affairs programme claims that this argument is supported by the fact that health institutions under private law are treated as administrative bodies in the context of the Senior Officials in the Public and Semi-Public Sector (Standards for Remuneration) Act (WNT). This is said to create a lower limit that should also be applicable for the Wob. The link to the WNT is made partly because the Wob request is made to obtain information about the use of public funding.
The argument that private institutions in the care and social welfare sector have to meet the Wob request is incorrect. This is not altered by the reference to 'unity of law' or the WNT. Healthcare institutions are therefore not obliged to meet the request. The question then arises of whether they should meet the request for information voluntarily. Various factors play a role in how that question is answered; the interest in protecting the privacy of the director is an important one.