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Decision in case 565/2018/TE on the European Commission’s failure to respond to two requests for access to documents concerning the resignation of the former Director-General of the European Anti-Fraud Office

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  • Case: 565/2018/TE
    Opened on 23 Mar 2018 - Decision on 30 May 2018
  • Institution(s) concerned: European Commission

The case concerned the European Commission’s failure to deal with two requests for access to documents. Following the Ombudsman’s intervention, the Commission identified the requested documents and released them with redactions of personal data only. The Ombudsman therefore considered that the Commission settled this aspect of the complaint.

Regarding the Commission’s failure to respond to the complainant’s requests in a timely manner, the Ombudsman found that this was in breach of the procedural requirements. However, a finding of maladministration with a recommendation would not serve any useful purpose in this particular case. The Ombudsman therefore closed the case.

Background to the complaint

1. On 7 December 2017, the complainant submitted two requests for public access to documents, under the EU rules on access to documents[1].

2. On 4 January 2018, the Secretariat-General of the Commission replied to the complainant, stating that it had registered the requests under the reference numbers GESTDEM 2017/7310 and GESTEDM 2017/7311. While his requests would be dealt with, the Commission would not be in a position to handle the requests within the prescribed time limit of 15 working days. It therefore extended the deadline for an additional 15 working days, referring to Article 7(3) of the EU rules on access to documents.

3. Having not received any further reply, the complainant considered this an implicit refusal of his request and, on 31 January 2018, he asked the Commission to review its decision (a so-called “confirmatory application”).

4. On 4 February 2018, the Commission’s General-Secretariat replied to the complainant, stating that his initial requests had not been transmitted to the responsible Commission department, that is, the Directorate-General for Human Resources and Security, due to a technical problem. Therefore, the requests were not processed in time. The Commission stated that the complainant’s requests would now be dealt with as soon as possible. The Commission’s General-Secretariat added that his request of 31 January 2018 would not be considered as a review request, but as an initial application handled by the Directorate-General for Human Resources and Security.

5. Having not received any further response from the Commission, the complainant turned to the Ombudsman on 20 March 2018.

The inquiry

6. The Ombudsman opened an inquiry into the following aspects of the complaint:

1) The Commission failed to release the documents requested by the complainant.

2) The Commission failed to deal with the complainant’s request in a timely manner.

7. The Ombudsman’s inquiry team reviewed the documentation provided by the complainant and contacted the Commission in the view of resolving the case swiftly.  The Ombudsman’s decision takes into account the arguments and views put forward by the parties.

The Ombudsman’s assessment

Failure to release the requested documents

8. Following the Ombudsman’s intervention, the Commission dealt with the complainant’s request and eventually granted partial access to the requested documents, with only personal data being redacted.

9. The Ombudsman finds that, by granting appropriate partial access to the requested documents, the Commission settled this aspect of the complaint.

Failure to deal with the request in a timely manner

10. The Ombudsman notes that the EU rules on access to documents allow for an extension of the time limit to reply to access to document requests “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[2]. In such cases, the applicant must be notified in advance and “detailed reasons[3] must be given. Where the institution fails to reply within the prescribed time limit, the applicant is entitled to submit a review request[4].

11. In this case, the Ombudsman’s inquiry team confirmed that the requests did not concern very long documents, nor a very large number of documents. Furthermore, the Commission did not give any reasons for extending the deadline for reply, but merely stated that it was not “in a position to complete the handling” of the requests within the prescribed time limits. The Commission also failed to comply with its own subsequent commitments of 4 January and 4 February 2018, in which it assured the complainant that his requests would be dealt with and that he would receive a response in due time. Moreover, the Commission refused to register his review request, and instead treated it as a new application.

12. No valid reason for these failings has been given.

13. The Ombudsman thus considers that the failure to comply with the time limits, and the subsequent refusal to register the complainant’s review request, was in breach of the procedural requirements of Regulation 1049/2001. The Ombudsman wishes to make it clear that the Commission must endeavour to comply fully with the deadlines and provisions set out in the EU rules on access to documents. Failure to do so amounts to a denial of citizens’ rights. However, she takes the view that a formal finding of maladministration with a recommendation would not now serve any useful purpose in this particular case.

Conclusion

The Ombudsman therefore closes this case with the following conclusion:

The Commission settled the complaint by granting appropriate partial access to the requested documents, but failed to comply with the procedural requirements of Regulation 1049/2001.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 30/05/2018

 

[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 L 145, 31.5.2001 (Regulation 1049/2001)

[2] Articles 7(3) and 8(2).

[3] Articles 7(3) and 8(2).

[4] Article 7(4).