The background

1. The complaint, submitted by a German citizen, concerns the European Anti-Fraud Office's ('OLAF') handling of a request for public access to documents relating to a closed OLAF investigation. The closed investigation related to alleged irregularities in the implementation of a grant agreement by an NGO. The complainant requested access to an initial OLAF assessment, an OLAF decision to close the case and a final case report.

2. The Ombudsman opened an inquiry into the complaint and identified the following allegations and claims:

Allegations

OLAF failed properly (i) to deal with the complainant's request for access to documents pursuant to Regulation 1049/2001[1] within the deadlines provided for in that Regulation and (ii) to grant the complainant access to the requested documents.

Claims

OLAF should (i) apologise for not having properly dealt with the complainant's request for access to documents and (ii) grant the complainant access to the documents he requested.

3. Following OLAF's apology for not having dealt with the complainant's request in a timely manner, the Ombudsman considered that the first aspect of the claim had been settled.

4. As concerns the refusal to grant the complainant access to parts of the documents, the Ombudsman issued a recommendation[2]. The Ombudsman received OLAFʹs opinion on the recommendation and, subsequently, the comments of the complainant.

Allegation that OLAF failed to grant the complainant access to the requested documents

The Ombudsman's recommendation

5. In her recommendation, the Ombudsman commended OLAF for releasing redacted versions of the requested documents, but underlined the necessity to analyse carefully the justifications put forward by OLAF concerning the remaining redactions.

6. First, the Ombudsman agreed, in principle, with OLAF's decision to redact the names of informants. However, she questioned OLAF's view that a Commission service could be classified as an "informant" and that the name of that service should be redacted.

7. Second, the Ombudsman agreed with OLAF that data protection rules justified redacting the names of OLAF investigators and other persons mentioned in the documents. Nevertheless, with a view to assisting OLAF to improve its procedures further, the Ombudsman stated that she would make a further remark about how best to communicate to persons seeking public access to documents that the documents requested include personal data[3].

8. Third, the Ombudsman did not consider that it was proportionate to pursue further her inquiry on the question of whether OLAF should disclose the name of the NGO under investigation and other information which could be used to identify it. She noted that the complainant was already aware of the NGO's name.

9. Fourth, the Ombudsman noted that the amount of public money provided to the NGO by the Commission, as well as the amount of money at stake in the OLAF investigation, could not be considered "commercially confidential" information. Further, the Ombudsman considered that there was a public interest in releasing that information. The Ombudsman thus argued that OLAF was wrong to redact such information.

10. Finally, the Ombudsman noted, OLAF had not provided any grounds to justify redacting the reasons for closing its inquiry. The Ombudsman considered that, in any event, and notwithstanding the absence of any justification, there was a public interest in knowing why OLAF closed, without making any findings, its inquiry into an alleged misuse of public funds.

11. In light of the above, the Ombudsman therefore made the following recommendations to OLAF:

OLAF should disclose the name of the Commission services that cooperated with the OLAF investigation.

OLAF should disclose the amount of public money the NGO received to carry out the project and the amount of money that is at issue in its investigation.

OLAF should disclose the reasons for closing its inquiry.

12. OLAF replied that based on the recommendation, and given the time that had past since the closure of its investigation, it was able to provide the complainant with a version of the requested documents in which certain further details were disclosed.

13. Concerning the first recommendation, OLAF agreed to disclose the name of the Commission service that had cooperated with OLAF. It stated that it could not disclose the name of a sub-entity within that service, as that sub-entity only consisted of a small number of people, who might be individually identifiable should the name of the sub-entity be revealed.

14. As regards the second recommendation, OLAF stated that the amount of the recovery order issued in relation to the NGO had already been supplied by OLAF to the complainant in its reply to one of his confirmatory applications. OLAF refused to disclose the amount of the financial impact of the possible embezzlement of funds as this information was simply an informant's estimate (which OLAF implies is not necessarily accurate).

15. Concerning the third recommendation, OLAF noted that the reasons for closing the inquiry had already been disclosed, since, in particular, they were mentioned on pages 3 and 4 of the redacted copy of the final case report. In addition, it was now possible to disclose the entire last sentence concerning "Conclusions and Recommendations" of the final case report, except the NGO's name.

16. In his comments, the complainant considered OLAF's reply to be unsatisfactory. He argued that the documents, despite OLAF's changes, remained heavily redacted, which made it unable to understand their content.

The Ombudsman's assessment after the recommendation

17. The Ombudsman welcomes the fact that OLAF has decided to provide the complainant with wider public access to the requested documents.

18. The Ombudsman notes that the first aspect of her recommendation related to the fact that the OLAF was wrong to redact the identity of the Commission service that provided OLAF with information to assist OLAF in its enquiries. OLAF has now revealed the identity of this service. OLAF has stated, however, that it considers it necessary not to disclose the name of the sub-entity within the Commission service responsible for providing that information since, given the small number of people working in that sub-entity, disclosing its identity would reveal the personnel responsible for providing that information.

19. First, the Ombudsman notes that the complainant, in his comments on OLAF's reply, did not specifically contest OLAF's decision to withhold this information. Second, the rationale underpinning the Ombudsman's recommendation was based on the fact that a Commission service does not need to be protected from any outside pressure when deciding whether to provide information to OLAF. The same observation cannot, however, be made as regards individual members of staff. Normally, the identities of civil servants and the general work they do should not be secret. However, it is reasonably foreseeable that individual members of staff could be dissuaded from providing OLAF with information on suspected wrong-doings should the fact that they informed OLAF be placed in the public domain. The Ombudsman notes that OLAF says that the sub-entity was comprised of a small number of people. It is reasonable for OLAF to consider that such detailed information could lead to the identification of members of that sub-entity. The Ombudsman thus considers it appropriate to close her inquiry into this aspect of the complaint with a finding that this aspect has been settled by OLAF.

20. As regards the second recommendation, the Ombudsman notes that OLAF has made public the amount of money that was at issue in its investigation. OLAF stated that the amount of the recovery order issued in relation to the NGO had already been supplied by OLAF to the complainant in its reply to one of his confirmatory applications (it was EUR 329,934. 47).

21. OLAF refused, however, to disclose the informant's estimate relating to the financial impact of the alleged misuse of funds by the NGO.

22. The Ombudsman agrees that such an estimate may not be accurate. The Ombudsman notes that disclosing an estimate of an unidentified informant, which may not be accurate, may damage legitimate interests. Further, there is no public interest in releasing such an estimate, especially given the fact that OLAF has disclosed the amount of the recovery order issued in relation to the NGO. The amount of the recovery order is, in contrast, the Commission's formal assessment as to the amount of public money which needed to be recovered. In this context, the Ombudsman considers it appropriate to close her inquiry into this aspect of the complaint with a finding that no further inquiries are justified.

23. Concerning the third recommendation, namely that OLAF should disclose the reasons for closing its inquiry, the Ombudsman notes that OLAF has disclosed the reasons for closing its inquiry, which were: the institution put in charge of the NGO's affairs informed OLAF that it "did not have any relation with the NGO"; all investigations aimed at locating and identifying the person in charge of the NGO "obtained negative results"; the NGO's auditor, invoking professional secrecy, did not respond to OLAF; relevant information requested from another entity never reached OLAF "despite all the efforts carried out by the investigators". In sum, OLAF confirmed that it closed the case due to the lack of "elements" that permitted "the identification and localisation of the persons in charge of the administration of the NGO at the time of the facts".

24. As far as the disclosure of OLAF's reasons for closing its inquiry is concerned, the Ombudsman considers it appropriate to close her inquiry into this aspect of the complaint with a finding that this aspect has been settled by OLAF.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

OLAF has accepted the Ombudsman's recommendation.

The complainant and OLAF will be informed of this decision.

Further remark

Where OLAF considers that personal data must be redacted from a document to which public access is being sought, it should inform the applicant of the existence and nature of such data at the earliest possible moment, for example, at the point when the initial decision is given. At the same time, OLAF should inform the applicant of the right to put forward reasons why public access to that personal data is necessary and why that need outweighs any legitimate interests of the persons named in the documents.

Final English version of the decision on complaint 2351/2012/JAS

 

[1] 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, OJ 2001 L 145, p. 43.

[2] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's recommendation available at: http://www.ombudsman.europa.eu/cases/recommendation.faces/en/59874/html.bookmark

[3] See paragraphs 25 and 26 of the Ombudsman's recommendation.