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Decision in case 1388/2016/JN on the Commission’s partial refusal to disclose documents

Available languages: en
  • Case: 1388/2016/JN
    Opened on 25 Oct 2016 - Decision on 06 Jul 2017
  • Institution(s) concerned: European Commission

The case concerned the Commission’s partial refusal to disclose to an MEP email messages exchanged with Irish journalists relating to the Commission’s response to a pending parliamentary question from that MEP. The Ombudsman inspected the documents and found that the Commission’s decision was reasonable and appropriate.

The background to the complaint

1. The complainant, who is a Member of the European Parliament, requested the European Commission to give her access under Regulation 1049/2001 to email correspondence between the Commission and Irish journalists. That correspondence had taken place in the context of the complainant’s parliamentary question to the Commission concerning the Water Framework Directive. The complainant sought access to the correspondence because she believed that the Commission had revealed to Irish journalists its response to her parliamentary question before sending the response to her.

2. The Commission rejected the request. It first noted that it had consulted the Irish journalists who had objected to the correspondence being disclosed (the journalists argued that they needed to correspond freely and confidentially with their sources in the Commission). The Commission then invoked the exception set out in Regulation 1049/2001 related to the protection of commercial interests (the Commission noted that the newspapers were businesses). The Commission added that it could not identify any overriding public interest why access should be granted. It also stated that it could not grant even partial access.

3. The complainant then repeated her request to the Commission (she submitted a confirmatory application to the Commission in accordance with Regulation 1049/2001). After the Commission failed to respond to that request in due time, she turned to the Ombudsman.

The inquiry

4. The Ombudsman opened an inquiry into the complaint and identified the following allegation:

The Commission failed to disclose the requested documents.

5. In the course of the inquiry, the Ombudsman received the Commission’s definitive decision on the complainant’s request for access to documents and, subsequently, the complainant’s comments on that decision. Her case team also carried out an inspection of the Commission’s file concerning this case. The Ombudsman's decision takes into account the arguments and views put forward by the parties.

Allegation of a wrongful refusal to grant full access to the requested documents

Arguments presented to the Ombudsman

6. In its definitive decision on the complainant’s request for access to documents, the Commission agreed to disclose parts of the documents. The Commission justified the remaining redactions by the need to protect personal data[1] of the journalists and of Commission officials, and to protect commercial interests[2] of the journalists and the media firms they worked for.

7. The Commission said that the emails contained personal data, that is, names, e-mail addresses, addresses, job positions and telephone numbers of Commission officials (not forming part of senior management) and of journalists. They also contained comments concerning the professional conduct of one individual which, even in anonymised form, could be linked to the individual concerned. Furthermore, the exchanges contained messages of a personal or complimentary nature. As far as they originated from journalists, these messages also constituted personal data. This was so because the complainant stated that she knew the identity of three journalists who allegedly had exchanges with the Commission. It was thus likely, stated the Commission, that the messages would be attributed (whether correctly or erroneously) to these three journalists. The Commission then said that the public disclosure of these data would constitute processing of personal data, within the meaning of Article 8(b) of Regulation 45/2001[3]. Since, it added, the complainant had not established the necessity of disclosing any of that personal data, the Commission rejected the request. It also pointed out that it could not assume that disclosure would not prejudice the legitimate rights of the journalists.

8. The Commission further pointed out that the exception relating to the protection of the privacy and integrity of the individual could not be overridden by a public interest.

9. As regards the exception related to the protection of commercial interests, the Commission noted that certain parts of the e-mails originating from journalists reflected the specific knowledge of the journalists on the issue of the Water Framework Directive and its implementation by Ireland at a point in time. They reflected the journalists' interpretation of the situation as it stood at that time and possible next steps to be taken by Ireland as regards implementing the Directive. This information had, it stated, commercial value as it was based on the previous investigative work of the journalists in question. Public disclosure of these parts would not only make the outcome of the journalists' investigative work accessible to competing journalists, it would also provide information on the investigation practices of the journalists concerned. This, in turn, would undermine the commercial interests of the journalists concerned. The competitive and fast-moving character of the news service market reinforced this conclusion. As regards whether there was a public interest that might override those commercial interests, the Commission noted that the complainant did not point to an overriding public interest in disclosing the e-mails originating from the journalists and the Commission could not identify any such interest.

10. As regards whether further partial access was possible, the Commission found that no meaningful further partial access to the redacted documents could be granted.

11. The complainant then informed the Ombudsman that, in her view, charging for water was a major concern for Irish citizens.[4] Thus, there was, in her view, an overriding public interest in disclosure of the emails. The complainant agreed that “journalists’ names and any specific information which would clearly identify them” or the names of the sources could be redacted. However, she believed that some of the redacted information might not be of this nature. The Commission had heavily redacted the documents. It was hard to believe, she stated, that the redactions contained only information identifying the journalists. The complainant claimed that the Commission could be withholding potentially embarrassing information.

The Ombudsman's assessment

12. The Ombudsman has inspected all of the emails. On the basis of that inspection, the Ombudsman considers that the Commission correctly decided not to disclose fully the requested documents. The reasons for this conclusion are as follows.

13. The Ombudsman notes that even though the names of the journalists are redacted from the emails, it would still be possible for the complainant and others to identify the journalists by cross-referencing the redacted information in the emails with information that became publicly available after the emails were written. For example, the complainant or others could compare the specific content of an email with the subsequent press reports of various Irish journalists with a view to verifying if a particular email exchange was with a specific journalist. If disclosure of the emails could link an email to a specific journalist, the email becomes “personal data” of the journalist.[5]

14. The fact that an email could be considered “personal data” does not mean that it can never be disclosed. In accordance with Regulation 45/2001, this personal data can still be disclosed 1) if the complainant were to demonstrate the necessity of having the data transferred to her and 2) provided there was no reason to assume that the journalists’ legitimate interests might be prejudiced.[6] The Ombudsman understands that the complainant asked for access to the emails to establish whether the Commission revealed to Irish journalists its response to her parliamentary question before communicating that response to her. Even if the Ombudsman were to assume that this need amounts to a “necessity” within the meaning of Regulation 45/2001, the Ombudsman concludes, following her inspection, that the redacted parts of the emails would not address that necessity. The complainant has, in fact, already been able to establish that there were contacts between the Commission and various Irish journalists on the issue of water charges in Ireland.[7] The public disclosure of more content of the emails would reveal only which emails came from which journalists. The complainant has put forward no reason as to why she needs that specific information.

15. The Ombudsman can also confirm that the redacted parts do not contain any information relating to the issue of water charges in Ireland which is not already in the public domain.

16. Since the redactions were correctly justified by the need to protect personal data, it is not necessary to examine separately the exception related to the protection of commercial interests.

17. For these reasons, the Ombudsman closes her inquiry with a finding of no maladministration.

Conclusion

On the basis of her inquiry, the Ombudsman closes this complaint with the following conclusion[8]:

The Commission’s partial refusal to grant public access to the documents requested did not constitute maladministration.

The complainant and the Commission will be informed of this decision.

Emily O'Reilly

European Ombudsman

Strasbourg, 06/07/2017

 

[1] Article 4(1)(b) of Regulation 1049/2001 reads, in relevant part, as follows: “1. The institutions shall refuse access to a document where disclosure would undermine the protection of: ... (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

[2] Article 4(2) reads, in relevant part, as follows: “2. The institutions shall refuse access to a document where disclosure would undermine the protection of: — commercial interests of a natural or legal person, including intellectual property ... unless there is an overriding public interest in disclosure.

[3] Regulation 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, OJ L 8, 12. 1. 2001, p. 1

[4] Domestic water charges were first abolished in Ireland in 1977. They were reintroduced by some local authorities in 1983. From 2015, Irish Water, the new national water services authority, commenced charging for supplying water to homes and for waste-water services to homes.

[5] In accordance with Article 2(a) of Regulation 45/2001, personal data is “any information relating to an identified or identifiable natural person”.

[6] Article 8 reads, in relevant part, as follows: “... personal data shall only be transferred to recipients ... (b) if the recipient establishes the necessity of having the data transferred and if there is no reason to assume that the data subject's legitimate interests might be prejudiced.

[7] The Ombudsman notes that there is no particular reason which would have prevented the Commission from providing information about the issue of water charges to journalists at that time.

[8] Information on the review procedure can be found on the Ombudsman’s website: http://www.ombudsman.europa.eu/en/resources/otherdocument.faces/en/70669/html.bookmark