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Decision in case 1933/2014/JF on the refusal to give full public access to a report on a meeting between the European Commissioner for Trade and an oil and gas multinational

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  • Case: 1933/2014/JF
    Opened on 17 Dec 2014 - Decision on 27 Nov 2017
  • Institution(s) concerned: European Commission

The case concerned the Commission’s refusal to give Friends of the Earth Europe full public access to a report on a meeting between the Commissioner for Trade and ExxonMobil.

During the course of the Ombudsman’s inquiry, and following the Ombudsman’s proposal for disclosure of some of the document’s content, the Commission gave Friends of the Earth Europe partial access to the e-mail report on three different occasions. As a result, the vast majority of the content was disclosed, with only a limited amount of content still at issue. The Ombudsman noted that the complainant did not provide any comments on the disclosures made, when invited to do so, and that the Commission had partially complied with her proposal for a solution. She therefore concluded that no further inquiries were necessary.

Background to the complaint

1. In November 2013, Friends of the Earth Europe asked the European Commission to provide it with public access to its documents concerning contacts between its Directorate-General Trade and external stakeholders since the beginning of that year about “the link between the Transatlantic Trade and Investment Partnership (TTIP) and unconventional fuels[1].

2. The Commission gave the complainant public access to a number of documents. It refused, however, to give any access to an e-mail describing a meeting held on 17 October 2013 between the then Commissioner for Trade and ExxonMobil (the ‘e-mail report’). It justified its decision with the need to protect ExxonMobil’s commercial interests[2] and the Commission’s decision-making process[3], as well as the public interest as regards international relations[4]. It argued that not even partial access could be given.

3. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman, complaining that the Commission had failed to justify properly its decision to refuse it public access to the e-mail report.

Issue

4. The Ombudsman opened an inquiry into the complainant’s concern. She investigated whether the Commission ought to have disclosed the e-mail report in its entirety, or, at least, given partial access to it and/or to have justified the refusal properly.

5. After examining the arguments put forward by the parties during the inquiry, the Ombudsman, on 3 May 2017, addressed a proposal for a solution to the Commission[5].

The Ombudsman's proposal for a solution

6. The Commission gave partial access to the e-mail report twice during the inquiry. The Ombudsman considered, however, that further access could be granted.

7.  She proposed, therefore, that the Commission “give access to the full e-mail report, except for the text passages that the Ombudsman acknowledges to be covered by an exception to public access”. The Ombudsman referred the Commission to the text passages in question.

8. The Commission then gave further partial access to the e-mail report, disclosing most of the content that the Ombudsman had proposed should be disclosed. The text that was not disclosed consisted of two short sentences at the end of the e-mail report. The Commission considered that the interest in protecting the public interest of international relations still applied. It added, however, that “if the applicant wishes the Commission to review its position on the document requested, or parts thereof, the complainant is invited to submit a new initial request for access to documents to the Directorate-General for Trade”.

9. The Ombudsman then invited the complainant to comment on the Commission’s reply. No comments were received from the complainant.

The Ombudsman's assessment after the proposal for a solution

10. The Commission has, over a period of time, disclosed the e-mail report almost in its entirety and the complainant has not made any comments on this latest disclosure.

11. The Ombudsman considers that the continued redaction of the two sentences on grounds of the protection of international relations reflects an overly cautious application of the exception. However, she equally considers that the content of those two sentences does not suggest any particular public interest in their disclosure. Taking into account the very limited amount of information still withheld, the nature of that information and the Commission’s express invitation to the complainant to ask DG TRADE for a new assessment of the redactions, given the passage of time since the original request, the Ombudsman considers it unnecessary to continue with her inquiry.

12. The Ombudsman accordingly concludes that the Commission partially complied with her solution proposal, and that no further inquiries are necessary.

Conclusions

Based on the inquiry, the Ombudsman closes this case with the following conclusions:

The Commission has partially complied with the Ombudsman’s proposal for a solution.

No further inquiries are necessary.

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

 

Emily OʹReilly

European Ombudsman

Strasbourg, 27/11/2017

 

 

[1] Under the EU rules on public access to EU institutions' documents (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 (the ‘Regulation 1049/2001).

[2] Article 4(2) of Regulation 1049/2001 provides that “[t]he 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] Article 4(3) of Regulation 1049/2001 provides that “[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not yet been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[4] Article 4(1)(a) of Regulation 1049/2001 provides that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of... the public interest as regards... international relations."

[5] For further information on the background to the complaint, the Ombudsman’s initial assessment after inspecting the document, the two consecutive partial disclosures of the e-mail report by the Commission and the parties' detailed arguments put forward during the inquiry, please refer to the full text of the Ombudsman's solution proposal, available at: https://www.ombudsman.europa.eu/cases/solution.faces/en/86771/html.bookmark