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Decision in cases 611/2017/TE and 895/2017/TE on how the European Parliament dealt with requests for access to documents

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  • Case: 895/2017/TE
    Opened on 22 Jun 2017 - Decision on 06 Jun 2018, 06 Jun 2018
  • Institution(s) concerned: European Parliament
  • Case: 611/2017/TE
    Opened on 02 Jun 2017 - Decision on 06 Jun 2018
  • Institution(s) concerned: European Parliament

The cases, from the same complainant, concerned requests for access to documents held by the European Parliament relating to the place of employment of an assistant to a Member of European Parliament (MEP). Parliament rejected both requests on the grounds that the content was the personal data of the assistant.

The Ombudsman’s inquiry team inspected the relevant documents and found that the documents in their entirety were personal data which could not be released without infringing the data protection rights of the MEP’s assistant.

Background to the complaints

1. The complainant is an investigative journalist, who requested access to several documents held by the European Parliament relating to an inquiry by Parliament.

2. That inquiry was launched in March 2015 following accusations that an assistant of a Member of Parliament (MEP) worked from Germany rather than from one of Parliament’s official places of work and that some of the assistant’s tasks were incompatible with his status as an “accredited assistant”[1].

Complaint 611/2017/TE

3. On 27 February 2017, the complainant made a request for access to “all documents” in relation to the European Parliament’s inquiry.

4. On 20 March 2017, Parliament extended the time limit for dealing with the request, referring to “ongoing internal consultations”.

5. The complainant rejected Parliament’s extension of the deadline and made a “confirmatory application” for the documents.

6. On 31 March 2017, Parliament replied to the complainant’s initial request. It stated that it had identified five documents. It concluded that, since “[e]ach one of the identified documents contains information on the person concerned that is strictly private”, their disclosure would undermine the privacy and the integrity of the individual as protected by Regulation 1049/2001[2]. Parliament also explained that this information constitutes personal data, as protected by Regulation 45/2001[3]. Moreover, the confidentiality of the documents in question was required by Article 26 of the EU Staff Regulations[4], which states that a staff member’s personal file is confidential. Parliament therefore refused access to all five documents.

7. On 3 April 2017, the complainant “confirm[ed] the confirmatory application”, thus seeking a review of the actual refusal. He argued that Parliament’s conclusion that the documents were strictly private contradicted a press statement by Parliament that the results of the inquiry would be published. He further argued that there was an overriding public interest in disclosure, given that the inquiry concerned an assistant to the then President of the Parliament.

8. Parliament acknowledged this letter as a confirmatory application on the same day.

9. On 11 April 2017, the complainant turned to the Ombudsman.

10. On 25 April 2017, Parliament “exceptionally” extended the time limit for dealing with the complainant’s confirmatory application.

11. On 19 May 2017, Parliament replied to the confirmatory application. It confirmed its conclusion that the content of the requested documents was personal data and therefore access had to be denied.

Complaint 895/2017/TE

12. On 21 February 2017, the complainant made a request for access to a document, which he identified by its reference number only. He understood the requested document related to the same issue, the employment of the MEP’s assistant.

13. On 23 February 2017, Parliament asked the complainant to clarify his application, as it had not been able to identify any document with that reference number.

14. The same day, the complainant replied, stating that he was making a confirmatory application. He also advised Parliament to check whether the document “might need the authorisation by the Secretary General of the European Parliament in order to be accessed”.

15. Parliament replied the same day, stating that its request for clarification was not a rejection of the complainant’s application and that the time limit to reply to his request had not expired. Therefore, the complainant’s confirmatory application could not be considered valid. Parliament added that it would continue its research based on the clarification the complainant had provided, but that it would appreciate any further information from him.

16. On 24 February 2017, the complainant informed Parliament that the document was a note, with annexes, signed by the Secretary-General of Parliament.

17. On 14 March 2017, Parliament extended the time limit for dealing with the initial application due to “ongoing internal consultations”.

18. On 20 March 2017, the complainant made a confirmatory application for the document.

19. Parliament rejected the initial application on 31 March 2017. It explained that it had assessed the document and found that it contained personal data and information protected by Regulations 1049/2001 and 45/2001. No part of the document could be disclosed without compromising these protected interests.

20. On 3 April 2017, the complainant again made a confirmatory application, thus seeking a review of the actual refusal.

21. On 25 April 2017, Parliament extended the time limits for dealing with his confirmatory application.

22. On 19 May 2017, Parliament confirmed its initial refusal to access, on the same grounds.

23. On 23 May 2017, the complainant turned to the Ombudsman.

The inquiry

24. The Ombudsman opened an inquiry into the following:

1) Parliament wrongly extended the time limits for dealing with the complainant’s initial and confirmatory applications.

2) Parliament wrongly refused access to the documents requested.

3) The complainant’s allegation that Parliament illegally keeps a “class of secret documents” that the Parliament’s Transparency Unit cannot find by searching for the reference number.

25. In the course of the inquiry, the Ombudsman’s inquiry team inspected the documents and received the comments of the complainant on the inspection report. The Ombudsman's decision takes into account all the arguments and views put forward by the parties.

1. Extension of time limits

Arguments presented to the Ombudsman

26. The complainant claims that Parliament wrongly extended the deadlines to reply to his initial and confirmatory applications. He takes the view that Parliament failed to give proper reasons for the extensions.

27. Parliament explained that the complainant had sent several access to document requests within a short time period, some of which related to confidential or very large documents. Parliament needed additional time to allow its services to deal with the requests according to the rules and without “disrupt[ing] their business continuity”.  As regards the complainant’s early confirmatory applications, made in response to the extensions of the time limits, Parliament argues that a time limit extension cannot be interpreted as a refusal to give access to a document.

The Ombudsman's assessment

28. Regulation 1049/2001[5] allows 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”. The detailed rules for the application of Regulation 1049/2001 explain that “complex or bulky applications” may constitute an exceptional case[6]. In such cases, the applicant must be notified in advance and “detailed reasons” [7] must be given. The Ombudsman therefore assessed, firstly, whether Parliament here faced an “exceptional case” and, secondly, whether it had provided “detailed reasons” to the complainant for the extension of the deadline.

29. The Ombudsman notes that Parliament extended the time limit for replying to both initial requests with identical emails, stating the deadline had to be extended by a further 15 working days due to “ongoing internal consultations”. It then extended the deadline to respond to the complainant’s confirmatory applications together in one letter. In this letter, it said that the consultations within Parliament and the legal assessment of the complainant’s confirmatory applications were “exceptionally time consuming”, given the confidential nature of some of the documents involved and the fact that some documents were especially large.

30. At the inspection meeting, Parliament clarified that the complainant had made, within one week, five access to document requests. Their receipt coincided with an overall significant workload during this period. It also stated that the complainant’s requests required unusual amounts of resources. The documentation provided to the Ombudsman by Parliament confirms that complex internal consultations were still ongoing within Parliament at the end of the time limits.

31. In view of these clarifications, the Ombudsman considers that Parliament’s administration did indeed face an “exceptional case” and that it was justified in extending the time limits in order to deal properly with the complainant’s requests[8]. The Ombudsman also notes that Regulation 1049/2001 lists examples of exceptional cases only. The list is not exhaustive.

32. The Ombudsman acknowledges that it is efficient for Parliament to standardise certain aspects of request handling. This might include standardised emails when extending time limits for dealing with similar exceptional requests. It may also be efficient to bundle the extension of time limits for replying to several requests in one email, in particular where the requests originate from the same person, are made around the same time and relate to the same issue. However, the applicant must always be able to understand the particular reasons for the extension in each case[9]. In this case, the Ombudsman considers that Parliament should have been more explicit as to why it had to extend the time limits of the complainant’s individual requests. She will make a corresponding suggestion for improvement.

2. Refusal of access to documents

Arguments presented to the Ombudsman

33. Parliament refused access to all documents requested by the complainant in cases 611/2017/TE and 895/2017/TE on the grounds that they contained personal data and information about a staff member that is strictly private. Moreover, the documents requested in case 611/2017/TE were also protected by the confidentiality requirements in Article 26 of the EU Staff Regulations, which apply to the personal file of staff members. Parliament added that meaningful partial access to the documents was not possible without compromising the interests protected.

34. The complainant argues that Parliament wrongly refused access to the documents. He says Parliament’s refusal to disclose the documents contradicted statements in the press that the results of the investigation would be published. In addition he argued that there was an overriding public interest in disclosure, given that Parliament’s investigation concerned an assistant to its then President.

The Ombudsman's assessment

35. Regulation 1049/2001[10] protects the privacy and integrity of an individual, in accordance with Regulation 45/2001 on data protection[11].  That Regulation[12] requires that, for personal data to be legally transferred to a third party, the recipient must demonstrate the necessity of the data transfer. If necessity is demonstrated, the EU institution then needs to consider whether the data subject’s legitimate interests would be prejudiced by the disclosure. In this case, the data subject is the MEP’s assistant. A weighing up of the different interests involved is required[13].

36. Personal data covers any information related to an identified or identifiable person. It includes information related to the working situation of a person. Information relating to an inquiry relating to an identified person is personal data of that person. At the inspection, the Ombudsman’s inquiry team confirmed that the entire content of the documents in question is the personal data of the MEP’s assistant.

37. As regards the necessity of transferring that personal data to the complainant, Parliament argued that the complainant had not established “any express justification or any argument demonstrating the necessity of the personal data in the documents to be transferred to [him]”, as required by Regulation 45/2001. Parliament also found that the disclosure of the documents would prejudice the data subject’s legitimate interest in the protection of privacy and integrity.

38. The Ombudsman notes that the complainant did in fact make specific arguments as to why he considered that the personal data of the assistant needed to be transferred to him. The complainant explained that, since the documents relate to the basis on which the then President of Parliament, a person holding high public office, employed an assistant, there was a necessity to make the public aware of the results of the investigation.

39. The Ombudsman acknowledges that an MEP, and in particular a former President of Parliament, should enjoy only limited protection for personal data which relates to his role as a public representative. As the General Court stated, “public figures have generally already accepted that some of their personal data will be disclosed to the public, and may even have encouraged or made such disclosure themselves” [14].

40. However, the request here is for the personal data of an assistant to the then President of Parliament, and not the personal data of the former President himself. The privacy and integrity of an assistant is likely to be seriously harmed by the disclosure of documents relating to an investigation into his or her employment conditions[15]. In view of these considerations, the Ombudsman finds reasonable Parliament’s conclusion that the disclosure of the requested documents would prejudice the former assistant’s legitimate interest in the protection of his privacy and integrity. The Ombudsman also finds the “necessity” and “legitimate interests” tests have not been satisfied in this case.

41. The Ombudsman recognises that the complainant argued in favour of an overriding public interest in disclosure in the circumstances of this case. However, under the relevant Regulations, the exception for the protection of the privacy and integrity of the individual is not subject to an overriding public interest test.

3. Failure to identify a specified document

Arguments presented to the Ombudsman

42. The complainant claims that Parliament’s inability to identify the document he requested in case 895/2017/TE was not sincere and was meant to mislead him.

43. Parliament “firmly contests” that its statement that it could not identify the requested document was made in bad faith. It explained that it had asked the complainant to clarify his application, in line with Regulation 1049/2001[16]. After the complainant had made some “clarifications and specifications”, Parliament had resumed the processing of the application and eventually found the document.

The Ombudsman's assessment

44. Regulation 1049/2001 requires EU institutions to ask an applicant to clarify requests that are not “sufficiently precise”[17]. The question that arises, therefore, is whether the request was insufficiently precise or whether Parliament should have been able to identify the document by its reference number only. 

45. At the inspection, Parliament explained that documents held by it have different levels of sensitivity. This is reflected in Parliament’s internal management system for administrative documents. The requested document was classified internally as “highly confidential” and was therefore only visible to those services which were authorised to have access to it. That is why the Transparency Unit could not find the document immediately via a search of Parliament’s database.

46. Parliament further explained that, since the Transparency Unit could not immediately identify the document, it wondered whether there was a mistake in the reference number. It therefore asked the complainant to clarify his request. Parliament said that, if the complainant had confirmed that there was no mistake and he could not provide further details, there were procedures in place for finding any document held. In addition, draft decisions of the Transparency Unit are checked by the Legal Service and the Secretary General, who has access to all sensitive documents. His office would have been able to spot if there was a document that the Transparency Unit had been unable to locate.

47. In view of these explanations, the Ombudsman accepts that Parliament’s invitation to clarify the complainant’s request was made in good faith. It was not meant to mislead the complainant. Rather, its purpose was to help identify the document, in order to deal with the complainant’s request.

48. Nonetheless, the Ombudsman considers that it would greatly facilitate the Transparency Unit’s work if it could locate (but not access) highly confidential documents in the Parliament’s internal document management system. To this end, Parliament should examine possibilities within the system of indicating to the Transparency Unit the existence of all documents held. It could then liaise with the relevant service over access to a document that had been requested. The Ombudsman will make a suggestion to this effect.

Conclusion

The Ombudsman closes this case with the following finding:

There was no maladministration by the European Parliament.

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

Suggestions for improvement

1. Parliament should ensure that it provides detailed reasons in relation to each individual request when notifying its decisions to extend the time limits for dealing with requests for public access to documents.

2. Parliament should examine possibilities for the Transparency Unit to locate all documents, including highly sensitive documents, in its internal document management system.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 06/06/2018

 

[1] An “accredited assistant” is an assistant to a Member of European Parliament (MEP) based in Brussels (or Luxembourg/Strasbourg), who is administered directly by Parliament’s administration, under the conditions of employment for non-permanent EU staff. Conversely, local assistants are based in MEPs’ Member States and are administered by qualified paying agents to ensure that tax and social security requirements are properly met, see http://www.europarl.europa.eu/news/en/press-room/faq/20/staffing-arrangements-parliamentary-assistants

[2] 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, p. 43–48 (‘Regulation 1049/2001’).

[3] Regulation (EC) No 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 institutions and bodies of the Community and on the free movement of such data, OJ L 8, 12.1.2001, p. 1–22.

[4] Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community.

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

[6] Article 2, Annex ‘Detailed rules for the application of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents’ to Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure, OJ L 345/94.

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

[8] See also the General Court’s judgment in Cases T-494/08 to T-500/08 and T-509/08, Ryanair Ltd v European Commission [2010] paras. 34-37, in which the Court found that the almost simultaneous submission of 8 access to document requests that involved a large number of documents justified the Commission’s extension of the time limit to reply.

[9] Cases T-494/08 to T-500/08 and T-509/08, Ryanair Ltd v European Commission [2010] ECLI:EU:T:2010:511, para. 35.

[10] Article 4(1)(b).

[11] Regulation (EC) No 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 institutions and bodies of the Community and on the free movement of such data, OJ L 8, 12.1.2001, p. 1–22.

[12] Article 8.

[13] Case T-115/13, Dennekamp v Commission [2015] para. 127.

[14] Case T-115/13, Dennekamp v Commission [2015] para. 119.

[15] Case T-115/13, Dennekamp v Commission [2015] para. 117.

[16] Article 6(2).

[17] Article 6(2).