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Decision in case 2216/2017/AMF on the European Commission’s refusal to grant public access to documents and information related to meetings with Members of the Commission

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  • Case: 2216/2017/AMF
    Opened on 16 Jan 2018 - Decision on 16 Jan 2018
  • Institution(s) concerned: European Commission

The case concerned a request for public access to documents, namely transcripts or minutes of meetings between George Soros and Members of the European Commission.

The Commission informed the complainant that it had no such documents. However, the Commission gave the complainant links to websites where it had published some information on the content, location and dates of the meetings. The complaint considered that the Commission had not dealt appropriately with the request.

The Ombudsman inquired into the issue and found no maladministration by the European Commission in its handling of the access request.

Background to the complaint

1. In July 2017, the complainant requested the European Commission to give him access to “transcripts, minutes or equivalent” of meetings held between George Soros and several Members of the Commission in April 2017. The complainant made his request based on EU public access rules[1].

2. In September 2017, the Commission informed the complainant, through two separate decisions, that it had not been able to identify any documents as falling within the scope of his request (except for some email exchanges of a purely organisational nature).

3. The complainant requested the Commission to review its decisions[2], specifying that he wished to receive access to “the content” of the meetings.

4. The Commission replied to the complainant in October 2017, confirming that it had not been able to identify any documents that would fall within the scope of the complainant´s request. It added that, regarding the complainant´s “request for information concerning 'the content' of the meetings in question, it is noteworthy that in accordance with the Commission's transparency commitment, Members of the Commission publish on the Europa website the dates, locations, names of the organisations and self-employed individuals met and the topics of discussion, within two weeks of each meeting, since 1 December 2014”. The Commission provided the complainant with the relevant web links[3].

5. Dissatisfied with the Commission´s replies, the complainant turned to the Ombudsman in December 2017.

The inquiry

6. The Ombudsman opened an inquiry into the complainant’s concerns that the time taken by the Commission to reply to his request was unacceptable and that the Commission was wrong not to grant public access to documents and information about meetings between George Soros and several Members of the Commission.  

7. The Ombudsman´s inquiry team considered the information provided, in particular the Commission’s replies to the complainant.

The Commission’s handling of the public access request

Arguments presented by the parties

8. The complainant considers that the time taken by the Commission to deal with his request unacceptable.

9. The complainant also considers that the Commission was wrong not to give him documents or information on the content of the meetings, which should be open to public scrutiny.

10. The Commission states that the right of public access to documents applies only to existing documents that are in its possession[4]. As it held no documents falling within the scope of the complainant´s request, it could not reply favourably to the request.

The Ombudsman's assessment

On the time aspect

11. The Commission appears to have exceeded the maximum 30 working days deadline for responding to requests for access[5]. This delay in replying gave the complainant the immediate right to make a review request of the implicit refusal to give access[6]. The complainant, however, did not do so, but waited for the Commission’s substantive replies before making his requests for review. The review requests were handled by the Commission within the prescribed time limit[7]. Against this background, and although any delay in dealing with requests for access to documents should be avoided,  the Ombudsman does not consider that there are sufficient grounds to make a finding of maladministration on this point or to conduct further inquiries into this issue. 

On the refusal to give access to the requested information

12. As the Commission rightly pointed out, EU public access rules apply only to existing documents in the possession of the EU institution[8]. The EU institution is not obliged to create a document that does not already exist in order to address a request for public access[9].

13. There is no indication that the Commission was wrong when it stated that it does not have any “transcripts, minutes or equivalent” of the meetings held between George Soros and the Commissioners.

14. Therefore, the Commission’s reply to the complainant’s access request was legally correct.

15.  If an institution has no relevant document but is in possession of information that is relevant to the citizen´s request, it is good administrative practice to respond under the Code of Good Administrative Behaviour and to provide the citizen with the information accordingly[10]. In this case, the Commission appears to have done that[11] and to have provided the complainant with links to the websites where it had published information on the content, location and dates of the meetings between George Soros and the Members of the Commission. There is nothing to indicate that the Commission is in possession of further information relevant to the request.

15. The Ombudsman therefore finds that the Commission has treated the complainant´s public access request in accordance with the applicable rules.

Conclusion

The Ombudsman closes this inquiry with the following conclusion:

There was no maladministration by the European Commission.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 16/01/2018

 

[1] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. available at http://www.europarl.europa.eu/RegData/PDF/r1049_en.pdf

[2] Through confirmatory applications as foreseen in article 8 of Regulation 1049/2001.

[3] For President Juncker: http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=829436d0-1850-424f-aebe-6dd76c793be2&d-6679426-p.

For First VP Timmermans: http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=b47bf526-b773-40e7-9392-89d454e0672f.

For Commissioner Jourová: http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=cc463fab-bfff-4595-bb45-6d0af96b5e83.

[4] Article 2(3) of Regulation 1049/2001

[5] Article 7 of Regulation 1049/2001 establishes that “[...] Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article. [...] In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.” The access request was made on 14 July 2017 and the two different Commission departments concerned applied on 19 and 26 September respectively.

 

[6] Article 7.4 of Regulation 1049/2001 establishes that “Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.”

 

[7] Article 8 of Regulation 1049/2001 establishes that “Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her [...] In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.[...]”

[8] As foreseen in Article 2(3) of Regulation 1049/2001.

[9] Judgement of the Court of First Instance of 12 October 2000., JT´s Corporation Ltd v Commission,  T-123/99  ECLI:EU:T:2000:230, paragraph 67.

[10] See decision of the Ombudsman in case 541/2008/VIK against the Commission.

[11]As regards the part of your query consisting of a request for information concerning 'the content' of the meetings in question [...]”