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The Commission’s failure to provide a timely reply to a request for public access to documents concerning the project "ENLETS disseminates best practice"

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  • Case: 292/2017/EIS
    Opened on 20 Mar 2017 - Decision on 09 Feb 2018
  • Institution(s) concerned: European Commission

The case concerned the failure by the European Commission to handle in a timely manner a request for public access to documents. The complainant, a not-for-profit organisation focused on monitoring state and civil liberties, and accountability and openness in Europe, made a request for public access to documents concerning a project funded by the Commission. The rules on dealing with requests for public access to documents set deadlines for replies to be sent. The Commission extended several times the deadline to provide the complainant with a reply and did not reply to its enquiries about the matter.

The Commission explained that the delays were due to its heavy workload before the end-of-the-year break, the lack of available resources and the wide scope of the complainant’s request.

The Ombudsman concluded that the failure to comply with the time limits and the lack of reply to the complainant’s letters constituted maladministration. However, since the documents requested were eventually partially disclosed to the complainant, who did not seek a review to the Commission’s decision, the Ombudsman found that a recommendation would not serve any useful purpose. She thus closed the case.

Background to the complaint

1. The complainant, Statewatch, is a not-for-profit organisation focused on monitoring state and civil liberties, and accountability and openness in Europe.

2. On 9 November 2016, the complainant made a request for access to documents to the European Commission. The request concerned a project entitled ENLETS[1] disseminates best practice[2]. The complainant wished to obtain access to ”any material [...] held by the Commission as part of the 'ENLETS Disseminates Best Practices (EDBP)' project, funded through the Internal Security Fund[3] [and] any material [...] held by the Commission in relation to the project 'ENLETS Security and Procurement (ESTP)”.

3. On 30 November 2016, the Commission sent an e-mail to the complainant extending the time limit for responding to the request until 21 December 2016.

4. On 21 December 2016, the Commission sent an e-mail to the complainant extending the time limit again, this time until 19 January 2017.

5. The Commission did not answer within this new time limit. On 20 January 2017, the complainant wrote to the Commission and asked about the state of play in the case.

6. On 24 January 2017, the Commission informed the complainant by e-mail that its request “had been handled, the documents had been identified and would be sent to it shortly”.

7. The complainant wrote to the Commission again on 30 January 2017, 6 February 2017 and 15 February 2017 to remind it about the handling of the request. These e-mails remained unanswered.

8. The complainant turned to the Ombudsman on 20 February 2017.

The inquiry

9. The Ombudsman opened an inquiry into the Commission’s failure to deal with the complainant’s request for public access to documents within the deadlines set in Regulation 1049/2001[4] and its failure to comply with the requirements of the Commission’s Code of Good Administrative Behaviour, as it failed to respond to the complainant’s enquiries.

10. On 21 June 2017, the Ombudsman’s inquiry team inspected the Commission's files falling under the scope of the request and the Commission’s internal correspondence on the matter. In the meantime, on 4 April 2017, the Commission had granted partial access[5] to 14 documents falling under the scope of the complainant’s request. The complainant did not seek a review to this decision. The Ombudsman therefore limited her inquiry to the issue of the initial failure to respond and the delay in granting access.

11. The Ombudsman's decision takes into account the arguments and views put forward by the parties.

Timeliness concerning the Commission’s handling of the request

Arguments presented to the Ombudsman

12. The complainant argued that the Commission had failed to comply with the time limit provided for by Regulation 1049/2001. Moreover, the complainant contended that the Commission did not comply with its own Code of Good Administrative Behaviour, as it also failed to reply to its queries about the status of the request.

13. Even though the Commission granted partial access to 14 documents falling under the scope of the complainant’s request on 4 April 2017, the complainant wanted to pursue the complaint as regards the delay in processing its request. It considered that the time taken to reply to its request was not acceptable.

14. The Commission explained that the delay was due to the Commission’s heavy workload before the end-of-the-year break, the lack of available resources and the wide scope of the complainant’s request.

The Ombudsman's assessment

15. The Ombudsman notes that Regulation 1049/2001 provides for a time limit of a maximum of 30 working days to respond to a request for access to documents[6]. The Regulation also makes provision for dealing with large requests.

16. In this case, the Commission failed to comply with the time limit specified in the Regulation. It also failed to comply with its own subsequent commitments, made to the complainant, to reply by a particular date. Furthermore, in violation of principles of good administration, it did not reply to the complainant’s enquiries about the status of its request.

17. Although the Commission eventually released the documents, in part, and the complainant has accepted the substance of the Commission’s position on disclosure, the Ombudsman considers that the failure to comply with the time limit and the lack of reply to the complainant’s letters constitute maladministration. Against this background, the Ombudsman wishes to make it clear that she expects the Commission to comply with the deadlines in Regulation 1049/2001 in all future cases. However she takes the view that a recommendation, arising from her finding of maladministration in this particular case, would not now serve any useful purpose.

Conclusion

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

The failure to comply with the time limit provided for in Regulation 1049/2001 and the lack of reply to the complainant’s letters constitute maladministration. The Ombudsman is of the view that a recommendation, arising from her finding of maladministration in this particular case, would not now serve any useful purpose, since the appropriate disclosure of the documents was eventually made.

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

 

Emily OʹReilly

European Ombudsman

Strasbourg, 09/02/2018

 

[1] ENLETS means the European Network of Law Enforcement Technology Services. It was set up in 2008 with the aim of gathering user requirements, scanning and raising awareness of new technology and best practices, benchmarking and giving advice within internal security services.

[2] Among other issues, the project focused on Open Source Intelligence, which relates to front line policing (events, crowd control) and criminal investigations (search for evidence, monitoring and surveillance), and Signal Intelligence (what kind of signal intelligence is the most operationally effective and open for integrating the sensors (used by law enforcement agencies, and what kind of concept will be needed as ever more data is forwarded for processing and more information needs to be analysed).

[3] Agreement HOME/2012/ISEC/FP/C2/4000003994.

[4] 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 L145, p. 43.

[5] As to the parts that had been blanked out, the Commission invoked the protection of public security (in line with Article 4(1)(a) of Regulation 1049/2001) and the protection of personal data (in line with Article 4(1)(b) of Regulation 1049/2001).

[6] In accordance with relevant parts of Article 7(1) of the Regulation, “[w]ithin 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”.

Moreover, in line with Article 7(3) of the same Regulation, “[i]n 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” (emphasis added).