Belgium: The Belgian Gaming Commission and the principle of an open administration

By Patrick Van Eecke and Antoon Dierick

An episode of the Belgian television programme “Basta” on game shows organized by some Belgian commercial broadcasting companies raised a lot of discussion in Belgium. In these shows a number of puzzles and braintwisters (“belspellen”) were presented to the viewers, in order for them to call the show’s host and to give the correct answer. After some research by the makers of “Basta”, it turned out that several of these riddles turned out to be nearly unsolvable.

After the broadcasting of this episode of “Basta”, it was alleged in Belgian media that the Belgian Gaming Commission seemed to be unaware of these practices and that it had failed to provide for adequate supervision.

Pursuant to this, the Belgian Gaming Commission received a request by a citizen to provide this citizen with all the documents relating to the investigation the Gaming Commission had opened as a result of the allegations in the media and the “Basta” episode. The request comprised the provision of information on the calculation key to solve the games, a list of all the games the Gaming Commission had examined and the communications between the Gaming Commission and the bailiff it had employed during its investigation. The request was rejected by the Gaming Commission, on grounds of confidentiality.

The applicant had based his request on the principle of an open administration, which is a fundamental right according to article 32 of the Belgian Constitution and the Act of 11 April 1994 (the “Act”) regarding an open administration. As the principle of an open administration is a fundamental right, any exception requires a legal basis, such as those listed in article 6 of the Act.

Dissatisfied with the refusal by the Gaming Commission, the applicant lodged an appeal with the “Commission for the access to administrative documents” (“Commission for access”). This administrative procedure requires that the applicant first files a request for reconsideration with the administration concerned as well as a request for advice with the Commission for access. As these procedural requirements had been fulfilled, the Commission for access could examine the claim on its merits.

The Commission for access, in its decision, acknowledged that in principle any administrative documents should be presented to the public at their request, save in the case of an exception foreseen by law. The Commission refers to article 6, §2 of the Act, which stipulates that an administrative authority may reject a request formulated by a citizen “if the publication of an administrative document could impair a legally imposed duty of confidentiality”.

The Commission for access applied this article to the case at hand. It first considered the Gaming Commission to be a federal administrative authority to which the Act (and the exceptions stated therein) applies. However, the Gaming Commission is bound by a statutory obligation of confidentiality, as provided for in article 17 of the Belgian Gaming Act of 7 May 1999. Because of this obligation, so the Commission for access ruled, the Gaming Commission had the right to refuse the request.

However, the Commission for access also rules that the Gaming Commission had failed to provide adequate motivation for its refusal. Adequate motivation would have required the Gaming Commission to give sufficient explanations relating to the concrete circumstances of the case and to the finality of its duty of confidentiality. Moreover, the Gaming Commission should have provided such a specific motivation for every separate document mentioned in the request, rather than providing one general opinion on all the requested documents. The Commission for access added that this motivation obligation applies to any other ground for denying access to administrative documents invoked by any administrative authority.

Therefore the judgment has both positive and negative consequences for the Gaming Commission. On the one hand, the Commission for access acknowledged the exception to the principle of an open administration. The Gaming Commission is therefore allowed to invoke its duty of confidentiality in order to refuse similar requests in the future. On the other hand, the Gaming Commission will need to supply future applicants with sufficient motivation in case it denies such a request.

Interesting to note also is that as a direct result of the episode of “Basta”, the Flemish legislator has adapted the Flemish Media Decree, prohibiting any further broadcasting of these types of television shows. No such prohibition has been introduced for the French and German Community.

Should you have any further questions regarding the above, please contact Patrick Van Eecke (Patrick.vaneecke@dlapiper.com) or Antoon Dierick (Antoon.dierick@dlapiper.com).