MINISTER FRANK VANDENBROUCKE REFUSES TO RESPECT THE LAW ON TRANSPARENCY AND THE CONSTITUTION

For the past two years, Het Laatste Nieuws has been trying to gain access to letters sent by Health Minister Frank Vandenbroucke (Vooruit) to GEMS President Erika Vlieghe and Corona Commissioner Pedro Facon during the corona crisis. They formed the triumvirate during the covida crisis and had the power to impose far-reaching decisions. Whether it’s a question of hijacking democracy, ignoring privacy and violating the principle of equality is not in question. The end justified the means. The question is, was the end so sacred? The mail traffic between these three tenors could make the critics of « wappies » and other conspiracy theorists, black and white, disappear. But there seems to be a problem.

HLN invoked the law on public access (WOB) to obtain access. But Minister Vandenbroucke disagrees. Frank is not known for his team spirit, but as a right-wing man who doesn’t tolerate contradiction. Doch, there seems to be a lot more to the story.

According to Vandenbroucke, it would take too much effort to properly disclose thousands of e‑mails. The Minister — who was appointed to his post not by the people but by Conner Rousseau — has therefore twice rejected a request for disclosure.

The Commission d’accès aux documents administratifs (CTB) ruled against him in October. The committee did not find the Minister’s arguments sufficiently pertinent. However, as this opinion was not binding, Mr. Vandenbroucke was allowed to ignore it. That’s what he did in November.

What followed defies imagination, or rather feeds the imagination. We quote from Het Laatste Nieuws: « HLN and publisher DPG Media have appealed to the Council of State. An auditor looked into the matter and also found that the Minister’s arguments did not hold water. In March, he advised the Conseil d’État to overturn Mrs. Vandenbroucke’s decision. The Minister, however, did not wait for the Conseil d’État’s ruling. He withdrew his old decision in early June and immediately issued a new refusal. This time with more justification. In this way, HLN is obliged to appeal. This could prolong the procedure by one or two years ».

And that’s not all. For Vandenbroucke would not only block HLN’s application legally, but also politically. Indeed, a new law is in preparation that would give more power to the BTC, the appeals board that ruled against Vandenbroucke in the autumn. An amendment to the law would ensure that the opinion of the appeals board would henceforth be binding. I’ll let you guess who’s trying to prevent this law from being passed.

« Strengthening the powers of the appeals commission has not met with much opposition, except from Vandenbroucke, » Claude Archer of the NGO Transparencia told HLN. « The amendment could still play tricks on him during this legislature. It could give HLN faster access to his e‑mails. The appeal board has already ruled against the Minister, but he could ignore it. If the board is given more powers, this will no longer be possible. The Minister benefits personally from his opposition to the amendment and is therefore in a conflict of interest situation ».

Yet Frank doesn’t think there’s any conflict of interest. In discussing the bill, he inadvertently forgot to mention the procedures underway. Unusual for someone smarter than most. Frank reckons he didn’t even have to forget. « Any change in the way the Appeals Committee operates would have no impact on current legal proceedings. I therefore see no conflict of interest ». According to Mr. Archer, the Minister can’t judge for himself. « He should have given his government colleagues the opportunity to judge, but they didn’t know, » he said.

Next Wednesday, the opposition and the other majority parties will meet to give their final approval to the new law — without amendment on the appeal committee. The question is whether, following the article in Het Laatste Nieuws, they will soon find a conflict of interest.⁽¹⁾

Frank Vandenbroucke makes every effort not to divulge the e‑mails he has exchanged.⁽²⁾

In the meantime, the Belgian government watchdog Transparencia has lodged a complaint against Vandenbroucke with the Central Bureau for Combating Corruption.⁽³⁾

1. Applicable legislation :

Belgium has had a law on open government since April 11, 1994. This law applies to all federal administrations, among others.⁽⁴⁾

According to article 4 of this law, every citizen has the right to consult any administrative document of a federal administrative authority and to receive a copy of it under the conditions set out in this law. He may also consult any administrative document on site, receive an explanation and receive a copy. This provision also applies to documents already filed. For documents of a personal nature, the applicant is required to declare an interest.

Article 6 provides for exceptions to these transparency rules. A federal or non-federal administrative authority may refuse the request for consultation, explanation or communication of an administrative document when it has established that the interest in publicity does not outweigh the protection of the security of the population, the fundamental rights and freedoms of citizens, Belgium’s federal international relations, public order, the security or defence of the country, the investigation or prosecution of criminal offences, a federal economic or financial interest, currency or public credit; the secrecy, by nature, of commercial and industrial information communicated to the administration; the secrecy of the identity of the person who has confidentially communicated the document or information to the administrative authority for the purpose of denouncing a criminal or punishable offence and also, if the document requested infringes privacy, unless the person concerned accepts an obligation of secrecy established by law; the secrecy of the deliberations of the federal government and interests concerning the classification of security clearances, security certificates and security advisories.

In addition, a federal administrative authority may reject a request for consultation, explanation or communication of a copy of an administrative document insofar as the request :

1° concerns an administrative document whose disclosure, on the grounds that the document is incomplete or unfinished, may give rise to misunderstandings;

2° concerns an opinion or advice communicated freely and confidentially to the authority ;

3° is manifestly unreasonable;

4° is clearly too vaguely worded.

The federal administrative authority which is unable to respond immediately to a request for advertising or which rejects it shall notify the applicant of the reasons for the postponement or rejection within 30 days of receipt of the request. In the event of an adjournment, the deadline may never be extended by more than 15 days. In the absence of notification within the prescribed time limit, the application is deemed to have been rejected.

To ensure compliance with the Public Administration Act, Article 8 established a Commission for Access to Administrative Documents, to which any citizen or agency can turn if the federal administration refuses to cooperate voluntarily. This Commission strives to fulfill its mission in all conscience, but in practice comes up against the same refusals as citizens. Nor does the Commission receive the documents it has requested.

At present, it has no power of sanction. This item is currently under development. New legislation is currently being drafted, which will make it possible to impose sanctions (legislation which Vandenbroucke is trying to block with all his might).

You’ll find all the relevant legislation here.⁽⁵⁾

In addition to the Open Government Act, there’s the Constitution.

Article 32 of the Constitution stipulates that everyone has the right to consult any administrative document and to obtain a copy, except in the cases and under the conditions determined by the law, decree or rule referred to in article 134 (which concerns the attribution of powers to certain bodies).

The role of the King is not without importance for a proper understanding of the whole issue.

Under Article 36 of the Constitution, federal legislative power is exercised jointly by the King, the House of Representatives and the Senate.

In accordance with article 96, the King appoints and dismisses his ministers.

The federal government may also submit its own resignation to the King when the House of Representatives adopts, by an absolute majority of its members, a motion of no-confidence which appoints a successor to the Prime Minister immediately, within three days of the rejection of a motion of confidence.⁽⁶⁾

Under the Constitution, the King has the role of guardian. He must control the ministers he appoints, call them to order if they overstep the mark and, if necessary, dismiss them if they fail to respect the law or bring opprobrium on the king. In practice, however, this is not the case, no matter how serious the faults committed by its ministers. Belgium has already seen numerous scandals in this area, in which the King has remained totally inert.

There is de facto only one exception: the one time King Baudouin refused to sign the abortion law. Politics set in and made the King understand that he had only a symbolic function and should not interfere with the legislation he had to sign.

2. What’s going on here?

All the e‑mails Minister Vandenbroucke exchanged with third parties from his office fall under the Open Government Act, regardless of the e‑mail address he used for this purpose (Frank also uses his private e‑mail address and the e‑mail address of the university with which he is — still — affiliated).

Vandenbroucke is therefore in breach of the Constitution and the Open Government Act.

While the EU and its member states increasingly legislate to gain absolute control over citizens’ emails, instant messages and social media posts, Mr. Vandenbroucke flouts all laws.

The fact that he has refused for two years to disclose his e‑mail traffic is a clear sign that these e‑mails stipulate certain things that cannot ask for the light of day. His persistent refusal is all the more remarkable given that Vandenbroucke has undoubtedly deleted all sensitive e‑mails from his computers, servers, etc. since the first request…

These e‑mails can of course be recovered (‘ as was the case for Hillary Clinton, who also corresponded ex officio from a private e‑mail address), but this requires a criminal investigation and at least a concrete suspicion of fraud and corruption.

Prime Minister De Croo won’t take his minister to task for being sick in the same bed. And the king? He’s on vacation abroad, enjoying a cocktail while waiting for the storm to subside. This is always the case. In the UK, too, citizens are no longer hearing about closure issues. Hanconck was not arrested. He is still at large and continues to spread fear.

As a citizen, do you want to play an active role in unmasking Vandenbroucke or any other minister, MP or federal government? You can do it.

Send an e‑mail to Frank Vandenbroucke and demand information about his e‑mail traffic or any other government documents you consider useful.

In this link you will find all his contact details, including his e‑mail address:

https://vandenbroucke.belgium.be/nl/contact

If he refuses, you can file a complaint with the CTB :

Other relevant links :

https://be.brussels/over-het-gewest/commissie-voor-toegang-tot-bestuursdocumenten-ctb

https://be.brussels/over-het-gewest/commissie-voor-toegang-tot-bestuursdocumenten-ctb/ctb#contact

https://www.vlaanderen.be/toegang-tot-bestuursdocumenten-via-openbaarheid-van-bestuur

https://www.vlaanderen.be/toegang-tot-bestuursdocumenten-via-openbaarheid-van-bestuur/toegang-tot-bestuursdocumenten-aanvragen