Documentation: BEREC President Johannes Gungl’s answer to Strand Consult on transparency – 11 simple questions he declines to answer

Strand Consult believes that telecom regulation should be evidence-based and implemented through a transparent process. This research documents Strand Consult’s correspondence with the Body of European Regulators for Electronic Communications (BEREC) on its freedom of information requests into the net neutrality implementation process, particularly the Net Neutrality Expert Working Group (NN-EWG).

The level of transparency of telecom regulation differs significantly across countries. For example, the American Federal Communications Commission (FCC) employs a strict “ex parte” process in which every verbal or written communication to any FCC staff which could impact policy must be publicly disclosed in an online database. This provides transparency to the many parties which wish to influence FCC policy.

Strand Consult follows BEREC in many areas including net neutrality. Because the policy can have significant economic and social impact, it is essential the regulation be conducted in a transparent process. Indeed, BEREC is required to operate in a transparent fashion, and EU law guarantees the right of EU residents the freedom of information to access to government proceedings. Sadly, Strand Consult’s experience does not live up to BEREC’s expressed commitment and EU law. Strand Consult has requested documents for dozes of secret meetings of BEREC’s NN-EWG in 2016-2017, but BEREC, after delaying response for weeks, either rejected our requests for information or provided only minimal information.

Strand Consult’s questions to BEREC Presidents on Transparency
BEREC’s previous President Sebastian Soriano did not respond to Strand Consult’s basic questions about the evidence underpinning BEREC’s net neutrality policy choices. In the US, these questions are answered by simple footnotes on regulations. It’s hard to fathom that BEREC could not offer the same transparency. Strand Consult wanted to see whether the new BEREC President Johannes Gungl would bring more transparency in 2018, but while he has acknowledged our letter, BEREC has not been more forthcoming with information. Gungl is also the head of the Austrian regulator RTR, and he worked closely with the last two BEREC presidents from France and Germany. On January 31, 2018 Strand Consult sent following 11 questions to Johannes Gungl.

1. What will you do about the lack of transparency in BEREC – Is it something you want to change?
2. What is the reason why so many telecommunications companies are not happy about the lack of transparency in BEREC?
3. Why will BEREC not answer simple questions such as how much does the NN regulation cost the EU and how do we measure the benefits? What are the new apps and innovations we can attribute to the law?
4. Your predecessor made many claims without evidence. How do you plan to substantiate your claims? How will you lift the professional level of BEREC?
5. Why does BEREC hold secret meetings with pre-selected stakeholders on net neutrality without creating transparency in the process?
6. Over one-third of the comments to BEREC’s net neutrality process came from the US and BEREC announced the number, using it as justification for its hard implementation. Look at our report The moment of truth – a portrait of the fight for hard net neutrality regulation by Save The Internet and other internet activists
7. Why do you give preference to foreign commenters and not to EU citizens?
8. In your NN report to BEREC and the European Commission, you claim that net neutrality is an international issue, not a national issue and that the EU rules are meant to maximize “international” services, including those from outside the EU. Does RTR have the authority to decide which services are prioritized?
9. If it does, why are European service not prioritized over those from other regions?
10. Why kind policy does not put EU users and networks first?
11. Why is this a good thing that EU is secondary?

Gungl responded on March 1, 2018 as follows:

Dear Mr Strand,

Thank you for your email and interest in the work of BEREC.

With regard to issues of transparency, BEREC is committed to independent, consistent, high-quality regulation of electronic communications markets for the benefit of Europe and its citizens. A general policy of BEREC and the BEREC Office is to make their deliverables directly accessible to the public to the maximum extent possible. The BEREC Public Register contains more than 5400 entries of BEREC and BEREC Office documents. The majority of the documents are available to the public. Furthermore, all EU citizens are eligible to request access to the internal documents stored in the Public Register. The BEREC Office examines such requests on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to the documents of the European Parliament, Council and Commission. The specific provisions regarding public access to documents of BEREC and the BEREC Office are set out in the BEREC transparency rules.

To ensure transparency and active stakeholder engagement in the work of BEREC, we organise public debriefings after each BEREC plenary meeting. These are open to all interested parties and live-streamed on the BEREC website. Stakeholders are invited to participate in the events and ask questions directly to the speakers. Those who watch the event remotely can ask questions via Twitter or send them by email. Additionally, every year BEREC organises a number of public consultations on the most important telecoms topics and on its work programme for the next year, inviting all stakeholders to contribute with their comments. For transparency reasons, BEREC has begun to use an online public consultation platform, which allows all EU citizens to comment on BEREC documents and follow others’ contributions and suggestions received during the consultation process. Once a year BEREC also organises a forum for stakeholders to meet and discuss ongoing work and plans for the future. The event is open to the public and live-streamed on the BEREC website. A sign-language interpretation of this event is organised for citizens with hearing impairments.

In the BEREC Strategy 2018-2020, BEREC also stated its commitment to continue to engage cooperatively and effectively with stakeholders in ways that are intended to ensure transparency (under the section on “Stakeholder engagement”­). This is an ongoing process, but many of the steps mentioned in the Strategy are already being implemented.

With regard to your questions about the use of evidence, whilst we disagree with the premise of your initial question, we would like to clarify that the output of BEREC is based on the available evidence on relevant regulatory matters. The BEREC Strategy 2018-2020 also outlines a number of ways in which BEREC will seek to improve the consistent implementation of regulatory principles and improve its working methods (under the section on “Output and efficiency”).

With regard to your question about the cost and benefits of the Net Neutrality Regulation (Regulation (EU) 2015/2120), Article 9 of the Regulation establishes that, by 30 April 2019, and every four years thereafter, the European Commission shall review Articles 3, 4, 5 and 6 (the net neutrality provisions) and submit a report to the European Parliament and to the Council thereon, accompanied, if necessary, by appropriate proposals with a view to amending the Regulation. As part of this process, BEREC is planning to provide an Opinion for the Commission later this year, in which it will evaluate the experiences with the Regulation and the associated BEREC Guidelines. In order to contribute to this, BEREC will open a public consultation at the public debriefing on 14 March to gather views on this important subject.

The remainder of your questions relate to other net neutrality issues. Whilst noting that we disagree with the premises behind each of the remaining questions, we would like to note that many of the general themes you raise were addressed in BEREC’s response to your previous request for information on 27 July 2017. However, we may also reiterate that BEREC conducted a thorough and inclusive process to gather the views of all stakeholders when drafting its Net Neutrality Guidelines. The final decision was based on the available evidence and the validity of the arguments made, rather than on the identity of the contributors.

Best regards,

BEREC Office

Documentation – BEREC’s net neutrality process is a black box. Only some inputs and outputs can be observed. There is no transparency to its internal workings
While it may seem that a Public Register of 5400 documents (BEREC and BEREC Office documents) is generous, not all of the documents are publicly assessible, and the relevant documents for which Strand Consult desires are not in the Register. Apart from a few documents that BEREC completed on the public consultation for the net neutrality implementation in 2016, most of BEREC’s accessible net neutrality documents are dated before 2014. In a regulatory oversight body for 29 countries would likely have tens of thousands of documents.

On October 31, 2017 Strand Consult requested access to information regarding for a number of meetings for the NN-EWG, including meeting date, attendees, agendas, minutes and any other background information, materials, handouts, presentations etc.

BEREC responded to Strand Consult on 13 December 2017 as follows:

We would like to inform you of the following: it was not possible to establish from your request exactly which NN EWG meetings you are referring to in 2016 – 2017 period. Therefore, we were not able to gather all the elements and information from the two years period considering the extensive timeframe. The volume of documents for which access is applied would have involved an inappropriate administrative burden and workload resulting from the processing of the application for access. Thus, the access to documents is refused on the ground that the workload relating to their disclosure would be disproportionate as compared to the objectives set by your application for access to those documents.

BEREC’s justification for why it could not provide information evolved over time. First it claimed that providing the required transparency was an administrative burden. In response to subsequent requests, BEREC claimed that it did not need to provide transparency because it wanted to protect the identity of meeting participants and that disclosing information would undermine its internal process.

Strand Consult’s John Strand responds to BEREC on 13 December 2017:

Dear Laszlo Igneczi,

It is impossible for me, a member of the public, to know the dates of the NN EWG meetings because the meetings are secret. This is why we have a “sunshine law” to provide the freedom of information. You can find the dates of the meetings by asking the heads of the NN EWG, Frode Sorensen and Henk Don (copied on this mail). If they don’t respond, you can ask any of the members of the NN EWG incl. Sebastian Soriano there was talking about this stakeholder meeting during the event today: BEREC presents one year of enforcing Net Neutrality across Europe and moves forward on monitoring business markets.

Furthermore the information you have about this group on your website dates from 2014 – More than 3 years old. Had you kept your website up to date, we would likely not have to request this information. It is unfortunate that BEREC, which demands openness and transparency from the parties which it regulates, does not wish to model this behavior itself.

As for the administrative burden, it would be a great surprise that BEREC does not have on its server a folder with the NN EWG documents such as meeting agenda, minutes, participant list, and attachments.

As the information technology specialist for BEREC, it is your job to use IT tools to organize and manage BEREC’s workflow. Such an explanation is not acceptable as a denial of our request, particularly in light of the fact that BEREC certifies to steward millions of comments from various proceedings. BEREC no doubt uses standard office productivity software and has the relevant information in its possession.

Best regards

John Strand

Transparency in BEREC – How to handle freedom of information requests
While a majority of the Public Register’s 5400 documents are available to the public, many important documents in the database require a formal request. BEREC selects which documents can be shared, and even if it does provide access, it can redact (hide or remove) information before it is made available. Strand Consult experienced this itself, finding different disclosure standards for meetings in 2016 versus 2017, for example.

Given BEREC´s rejections of request for access to information, Strand Consult wrote the following to BEREC on 28 March 2018:

1. You write, You will find attached the documents we can provide you with, bearing in mind that some of the documents requested were not relating to NN EWG and we therefore did not assess the possibility to disclose them as it seemed irrelevant in light of your request. It is not for BEREC to decide what is relevant for me, a member of the public and a European taxpayer. If the material is presented at meeting for the NN EWG, then it falls under my request. I requested a set of documents to which I have a right via law. BEREC is to deliver the documents without censorship or judgement. Please fulfill your lawful duty and deliver the documents I request.

2. You write, First, the documents requested by the applicant contain personal data in relation to which the applicant failed to provide the BEREC Office with express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred. Therefore, some passages have been redacted in compliance with Article 4(1) point (b) of Regulation 1049/2001 as disclosure of the personal data would have otherwise undermined the protection of privacy and the integrity of the individual, in particular in accordance with the EU legislation regarding the protection of personal data. Is it your claim that the National Regulatory Authorities whose identities are public as part of being in BEREC are now to be masked? I am acquainted with the EU’s personal data rules, and there are different standards for government entities versus private companies, for example. If a person’s identity is sensitive, BEREC can redact the name of individual while still providing the information, but BEREC need not do this. The individual’s right to privacy do not take precedence over general request for the freedom of information. My express and legitimate justification for the information is that BEREC is in process of making rules that undermine my user rights under European law. I am performing an important public service to bring transparency to a secretive government agency. My reports and research notes are read by politicians, policymakers, operators, and journalists around the EU and the world. Please provide the information I request.

3. You write, Therefore, some passages have been redacted in compliance with Article 4(3) second indent of Regulation 1049/2001 as disclosure of these opinions would have otherwise seriously undermined BEREC’s decision-making process. Indeed, disclosure of internal opinions would deter BEREC members from expressing frank and complete views on the topics discussed and would therefore lead to self-censorship. There is an overriding public interest to the information. My request satisfies a public interest test because the matter at hand is one of significant public debate and participation. The issues at hand are related to one’s safety and privacy on the internet, e.g. whether BEREC requires national regulatory authorities to implement an invasive surveillance system to measure traffic management and net neutrality rules compliance in general. This constitutes a significant threat to European’s right to privacy in general, and as such, information relating to such grave human rights violations are considered to be subject of mandatory public interest override. The “right to truth” has been recognized by the European Court of Human Rights and the UN Human Rights Committee. Thus please provide the information I request.

4. You write, For other documents, as indicated in the list, no access is granted as these relate to a matter where the decision has not yet been taken by the institution in accordance with Article 4(3) first indent of Regulation 1049/2001. You cannot deny my request with broad references to Regulation 1049/2001. You have to note the specific document and the specific reason why it cannot be disclosed. The statute you reference is does not satisfy instances in which the request for information has an overriding public interest. This is a case with an overriding public interest and therefore the request information should be provided. Please provide the requested information.

Strand Consult finds it disappointing why it should be so difficult to access information from BEREC, particularly when its leaders claim that the organization is transparent and is committed to transparency. It should not be so difficult for European citizens to request information from public institutions. Citizens shouldn’t have to hire a lawyer to get access to information for which the law provides should be accessible.

BEREC response to Strand Consult letter from 28 March 2018
On 12 April 2018, BEREC wrote the following to Strand Consult explaining their reasoning for why they could not provide the requested information. BEREC does not want to disclose the identity of the selected participants or their opinions. Strand Consult finds this response disingenuous. BEREC has an official view that net neutrality is a rational, objective, and non-controversial policy. It is suspicious that BEREC would be so guarded. It suggests that the reality does not match BEREC’s official statements. Net neutrality in the EU remains highly controversial and unsupported by the facts. Had the information discussed at the meetings been fact-based, it is likely that BEREC would have been forthcoming.

Decision No BoR/2018/03 of the Board of Regulators on confirmatory application for access to Net Neutrality Expert Working Group documents

The Board of Regulators,

HAVING REGARD TO Regulation No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (BEREC Regulation) and in particular Article 4 and Article 22 thereof;

HAVING REGARD TO Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and in particular Article 4(3) and Article 4(1)(b) thereof;

HAVING REGARD TO Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data;

HAVING REGARD TO Decision BoR (10) 26 by the Board of Regulators of the Body of European Regulators for Electronic Communications (BEREC) concerning the transparency and access to documents at the BEREC, and in particular Article 4 and 8(2) thereof;

HAVING REGARD TO Decision BoR (14) 213 by the Board of Regulators of the Body of European Regulators for Electronic Communications on the rules of procedure of the Board of Regulators and in particular Article 17 thereof;

HAVING REGARD TO Decision BoR (11) 37 by the Board of Regulators of the Body of European Regulators for Electronic Communications on the Establishment of a Public Register of the BEREC Documents;

Whereas,

1) An application for access to document was received on 05 February 2018 concerning Net Neutrality Expert Working Group documents. The Applicant asked to be granted access to the documentation of the full year of 2017 Net Neutrality meetings;

2) The reply to the initial application was notified to the Applicant on 19 March 2018 and partial access was given to the documents relating to the NN meetings of 2017;

3) A confirmatory application was submitted by the Applicant on 19 March 2018 (registered on 20 March 2018) by which the Applicant confirmed his insistence on getting full access to the 2017 NN documents;

4) In accordance with the Regulation 1049/2001 access was granted to the documents to the fullest extend without disclosing information based on Article 4 of the Regulation No 1049/2001. The requested additional information only contains personal data and opinions for internal use as part of deliberations and preliminary consultations. These passages have been redacted on a twofold legal basis:

• on the basis of Article 4(1) point (b) of Regulation 1049/2001 because the disclosure of some parts of the existing documents would undermine the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data;

• on the basis of Article 4(3) second indent of Regulation 1049/2001 as, for some of the requested documents, full disclosure would seriously undermine BEREC’s decision-making process since BEREC members are of the view that the disclosure of these internal documents would deter them from expressing frank and complete views on the topics discussed and would therefore lead to self-censorship.

In this respect, disclosing the removed parts would seriously undermine BEREC’s decision making process.

5) Consequently, the Board of Regulators decides to refuse the application submitted by the Applicant;

Has adopted the following Decision:

Article 1
The confirmatory application submitted on 19 March 2018 is refused.

Article 2
The reply will be sent to the Applicant by the BEREC Office by 13 April 2018.

Article 3
This decision shall enter into force on the day of its adoption by the Board of Regulators.

Done in Riga, on 12 April 2018.

For the Board of Regulators

Johannes Gungl

BEREC Chair 2018

As the letter demonstrates, there is a gap between Gungl’s high-minded language on transparency in his March letter and the actual practice of what he will allow BEREC to share just a month later.

Conclusion – What happens inside BEREC’s black box
Strand Consult observes hypocrisy between BEREC’s words and actions when it comes to transparency. It is a regulatory irony that BEREC implements openness and transparency requirements on telecom operators but fails to live up to its own legal standards for freedom of information. BEREC’s rules that telecom operators be open in their networks and transparent about their speeds and traffic management practices entail restrictive and expensive measures, including legal experts to update policies to conform with BEREC’s rules, network engineers to redesign systems to conform to BEREC’s preferences, and software developers to create online measurement tools. At the very least, BEREC could offer a cost-benefit analysis or regulatory impact assessment to show why such measures are worth the effort. Indeed OECD recommends this basic and reasonable safeguard to be performed by telecom regulators. But BEREC arrogantly rejects that is needs to provide such accountability.

Nothing is stopping BEREC from putting all of the activities of the NN-EWG online. There are established models for multi-stakeholder internet governance such as the UN Internet Governance Forum. It would save time and resources for BEREC to implement such a system, and more important, it would create the transparency, accountability, and credibility which befits a telecom regulator.

BEREC is only happy to provide transparency to its inputs and outputs. It does not want to disclose the inner working of its organization because it would be clear that many of its decisions are not based in fact but rather ideology and political preference. BEREC can also use this opacity to collect its preferred stakeholders which will provide the justification to its pre-determined view. The black box is the ideal cover for a group of activist nations to organize and advance an interpretation of net neutrality that exceeds the words and intention of the EU law.

In the research note BEREC’s net neutrality process is a black box. Strand Consult fights for transparency against telecom regulators that like to make net neutrality rules behind closed doors we have described what has happened in BEREC’s secret process for net neutrality in 2016 and 2017 and have documented in detail that BEREC does not practice the openness that Johannes Gungl claims. The only reason were able to identify 40 secret meetings on net neutrality over 2 years was that we filed a freedom of information request in to Nkom in Norway, a non-EU country with a higher transparency standard than the EU and where the co-chair of NN-EWG is employed. Strand Consult requested the travel information of Frode Sørensen and was able to create a rough idea of his schedule of net neutrality meetings as a result.

While Strand Consult is aware of creative approaches to creating transparency, it is deeply disappointed that European citizens need to go to such lengths to obtain information which by law should already be accessible. BEREC’s opacity creates a high bar for citizens, students, journalists and others to overcome should they want to access information, and as a result, inquiries are probably never made. European citizens shouldn’t have to hire a lawyer to access information to which they are already entitled.

In the Net Neutrality in EU after 1 Year: Unintended Consequences for operators, content providers, and consumers report we have not only described this in detail and we have also included the documents we have accessed after a long battle with BEREC and a list of the many documents that BEREC will not provide access.

Contact us for more information of our report Net Neutrality in EU after 1 Year: Unintended Consequences for operators, content providers, and consumers.