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Decision in case 663/2017/TE on how the European Anti-Fraud Office (OLAF) dealt with a request for access to documents from its investigation concerning the then European Parliament President

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  • Case: 663/2017/TE
    Opened on 02 Jun 2017 - Decision on 06 Jun 2018
  • Institution(s) concerned: European Anti-Fraud Office

The case concerned a request for access to documents held by the European Anti-Fraud Office (OLAF). The documents in question related to an investigation into the terms of employment of an assistant to the then President of the European Parliament. After initially extending the time limit for responding to the complainant, OLAF refused to disclose the documents. To justify its decision, OLAF referred to EU case law that had established a ‘general presumption’ that OLAF investigations (and their documents) should be confidential.

The Ombudsman found that the documents in question were covered by the presumption of confidentiality at the time OLAF made its decision to refuse access. The Ombudsman suggested, however, that OLAF should give clearer explanations when it extends the time limit for replying to access to documents requests.

Background to the complaint

1. On 6 March 2017, the complainant made a request for access to “all documents but especially OLAF’s final report” concerning an investigation by the European Anti-Fraud Office (OLAF) into the terms of employment of an assistant to the then President of the European Parliament.

2. On 27 March 2017, OLAF informed the complainant that, although it was in the process of dealing with his application, it would “not be in a position” to respond within the standard time limit of 15 working days, as provided for under the EU’s rules on public access to documents (hereinafter, Regulation 1049/2001)[1]. It therefore extended the time limit by a further 15 working days.

3. On the same day, the complainant replied, asking OLAF to review (by way of a so-called confirmatory application) what he considered to be an implicit decision refusing him access to documents.

4. On 28 March 2017, OLAF informed the complainant that it had identified a “large number of documents” in the relevant file[2], including the final report. It stated that it had closed its investigation and that its final report and recommendations for further action had been sent to the “competent EU authorities”. However, OLAF further stated that it was legally bound to keep information obtained during investigations confidential - under Article 339 of the Treaty on the Functioning of the EU, Regulation 883/2013[3] and Article 17 of the EU Staff Regulations[4]. OLAF stated that it was therefore obliged to refuse access to the requested documents. It applied the exception for protecting “the purpose of inspections, investigations and audits”[5].

5. On 29 March 2017, the complainant asked OLAF to review this explicit decision refusing him access to documents (a second confirmatory application).

6. On 20 April 2017, the complainant turned to the Ombudsman.

7. On 24 April 2017, OLAF informed the complainant that it needed more time to reply to him “in view of the complexity of the case” and the involvement of “different Services which must be consulted”. The new deadline would be 17 May 2017.

8. On 17 May 2017, OLAF confirmed its decision to refuse access. Its reasons for refusing access did not change.

The inquiry

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

1) OLAF wrongly failed to grant access to the documents requested.

2) OLAF wrongly extended the time limits for dealing with the complainant’s request.

1. Refusal to grant access

Arguments presented to the Ombudsman

10. OLAF based its refusal to grant public access to the requested documents on the exception for the protection of the purpose of inspections, investigations and audits. It explained that the EU’s General Court[6] had recognised a ‘general presumption of non‐disclosure’ for documents on OLAF’s case files. The rationale given for this is that disclosing such documents could fundamentally undermine the objectives of OLAF’s investigative activities, as protected by Regulation 883/2013. OLAF argued that this ‘general presumption of non-disclosure’ extended to closed cases and the follow‐up of such cases, provided this takes place within a reasonable period.

11. OLAF further stated that it had sent the final investigation report to Parliament in December 2016, which meant that the reasonable period for Parliament to decide what action to take had not yet elapsed. OLAF argued that there was no overriding public interest in disclosing the documents. OLAF also referred to the exception by which access to documents can be refused where there is a need to protect personal data.

12. The complainant argued that there is no general right for OLAF to refuse access to such documents. He claimed that any presumption that access could be denied did not cover all documents, but was restricted to those documents that contained internal advice for consultations and deliberations. The complainant also contended that there was an overriding public interest in disclosure, and referred to the ongoing public debate about the former President of Parliament.

The Ombudsman's assessment

13. Regulation 1049/2001[7] allows EU institutions to refuse access to documents where their disclosure could undermine the purpose of inspections, investigations and audits. This exception applies unless there is an overriding public interest in disclosing the documents. In addition, where documents are subject to a particular area of EU law, any specific rules on access applicable to such documents have to be considered. In this case, Regulation 883/2013 states that information transmitted or obtained in the course of OLAF’s internal investigations, in whatever form, is subject to an obligation of professional secrecy.

14. The General Court has stated that the provisions concerning confidentiality in Regulation 883/2013 justify a general presumption of non-disclosure of documents related to OLAF’s investigations. The Court concluded that “generalised access, on the basis of Regulation No 1049/2001, to documents in OLAF’s file, while OLAF’s investigation procedure is still ongoing, would, in principle, undermine the effective conduct of the investigation” [8]. The same was true for OLAF investigations that had been recently closed with recommendations for follow-up, as the competent EU or national authorities needed time to decide, within a “reasonable period”, on the actions they should take following OLAF’s recommendations. The General Court reasoned that early disclosure could compromise the effective use of OLAF’s findings by the relevant authorities[9]. The Court recognised, however, that OLAF should consider the merits of any arguments, put forward by the person seeking access, which sought to demonstrate that there was an overriding public interest in disclosing the documents concerned[10].

15. On this basis, the Ombudsman considered, firstly, whether the documents requested by the complainant fell under the general presumption of non-disclosure; secondly, whether there was an overriding public interest in disclosing the documents.

16. The complainant requested access to all documents related to a specific investigation. Those documents were clearly covered by the general presumption of non-disclosure while the investigation was ongoing. It continues to apply for a “reasonable period” following the conclusion of the OLAF investigation. OLAF rejected the complainant’s request for review in May 2017. Since OLAF had transmitted its final report and recommendations to Parliament in December 2016, case law indicates that the reasonable period for Parliament to consider its actions had not yet elapsed[11].

17. The complainant argued that, as the requested documents relate to the terms under which a former President of the European Parliament employed a staff member, there was an overriding public interest that justified disclosing the results of the investigation.

18. The Ombudsman recognises the public interest in the outcome of the investigation, given the link to the former President of the European Parliament. However, the complainant did not show that this public interest would be served by releasing the documents before the reasonable period for Parliament’s follow-up on the OLAF investigation had elapsed. The Ombudsman considers that it is important to respect the need for confidentiality during the reasonable period for follow-up. In those circumstances, the Ombudsman considers it reasonable for OLAF to have concluded that there was no overriding public interest in disclosing the documents at the time.

19. The Ombudsman also notes that OLAF’s press office provided the complainant, in April 2017, with general information on the outcome of the investigation in question.

20. In these circumstances, the Ombudsman accepts that the refusal by OLAF was justified at the time. However, given that a year has now passed since that refusal, the situation may have changed. On the understanding that the complainant still seeks public access to these documents, OLAF could consider afresh whether the grounds for refusing access still apply. Alternatively, the complainant could make his request, or a similar request, again. Any such new request would have to be considered in the light of the circumstances at the time it was made.

2. Extension of time limits

Arguments presented to the Ombudsman

21. The complainant argues that OLAF extended the time limits to reply to his initial and confirmatory applications without giving detailed reasons, as required by Regulation 1049/2001. He also claims that OLAF extended the time limit to reply to his request for review only after the original deadline had already passed.

22. OLAF acknowledges that there was a “possible lack of clarity” in explaining why it needed to extend the time limit for replying to the request for review. It apologised for this. OLAF explained that it generally attempts to deal with access to document requests as quickly as possible. However, “complex requests” for “sensitive documents” may take more time. OLAF added that it had needed[12] to consult with other departments of the European Commission before taking a final decision. OLAF also contended that it extended the deadline to reply to the complainant’s confirmatory application on the last day of the original 15 working day period, in accordance with the legislation.

The Ombudsman's assessment

23. Regulation 1049/2001[13] allows an EU institution or body to extend 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 setting out how Regulation 1049/2001 should be applied state that “complex or bulky applications” may constitute exceptional cases[14]. Where the deadline is extended in such cases, the applicant must be notified in advance and “detailed reasons”[15] must be given. This should enable the applicant to understand the particular reasons for the extension in each case[16].

24. The Ombudsman notes that OLAF had identified a “large number” of relevant documents that it considered to be confidential. Such “complex” applications normally qualify as being “exceptional” for the purposes of Regulation 1049/2001[17]. If OLAF considered this to be an exceptional situation[18], it should have clearly communicated to the complainant why this was so.

25. However, the Ombudsman takes the view that, where OLAF is likely to rely on the general presumption of non-disclosure to refuse access to documents, it becomes very difficult to argue that the case is complex or exceptional. The idea of a general presumption is precisely “to permit the institution concerned to reply to a global request for access in a manner equally global”[19] and not to examine all the individual documents requested. This means that OLAF was, in principle, not required to make a detailed assessment of the documents in the file, nor was it obliged to consider the possibility of giving partial access to some of the documents. Against this background, the Ombudsman finds it difficult to understand why it was necessary to defer the deadline.

26. While the Ombudsman welcomes OLAF’s apology to the complainant, she will make a corresponding suggestion for improvement to OLAF on how it should deal with similar situations in the future.

27. Concerning the complainant’s claim that OLAF extended the time limit to reply to his request for review after the original deadline had elapsed, the Ombudsman notes that EU institutions must generally reply to requests for review within 15 working days[20]. This time limit can then be extended, under certain circumstances, provided that the applicant is notified “in advance”[21]. “In advance” includes the last day of the original period[22].

28. The Ombudsman understands that the complainant initially tried to make a request for review by replying to OLAF’s email of 27 March 2017. However, OLAF had sent this email from a ’no reply’ address[23], which it used solely for sending outgoing emails. OLAF therefore did not receive this first request for review. It registered the complainant’s ‘second’ request for review (of 29 March 2017) only.

29. Against this background, the Ombudsman considers it reasonable that OLAF started to calculate the time limit for responding to the complainant only from 29 March 2017, when it actually received his request for review. Taking into account the public holidays of the EU institutions during that period[24], the 15 working days ended on 24 April 2017. This means that OLAF correctly stated that it had extended the deadline on the last day of the original 15 working day period.

30. The Ombudsman further notes that OLAF’s email of 27 March, sent from the no reply address, started with the following sentence:

“Sent by OLAF‐FMB C4 <OLAF‐FMB‐C4@ec.europa.eu>. All responses have to be sent to this email address.”

These sentences imply that applicants should send any further correspondence to the mentioned address. However, standard practice in email correspondence is simply to reply to messages. The Ombudsman considers that the information on how to reply was not presented in the clearest manner. She therefore takes the view that OLAF should make the situation clearer for applicants, either by avoiding no reply addresses or by stating very clearly in the text of the email that it was sent from a no reply address and that any response should be addressed to the separate email address provided in the message. The Ombudsman will make a suggestion for improvement to this effect.

Conclusion

The Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Anti-Fraud Office in refusing access to the requested documents.

The Ombudsman makes the following suggestions for improvement:

1. OLAF should clearly set out the reasons for extending the time limits for dealing with access to document requests, in particular where it relies on the general presumption of non-disclosure.

2. OLAF should avoid using no reply email addresses when communicating with applicants or clearly state that an email has been sent from a no reply address.

The complainant and the European Anti-Fraud Office will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 06/06/2018

 

[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, p. 43–48 (‘Regulation 1049/2001’).

[2] OLAF’s internal reference for the file is OF/2015/0449/A1.

[3] Article 10 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ L 248, 18.9.2013, p. 1–22 (‘Regulation 883/2013’).

[4] Article 17 of 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] Article 4(2) of Regulation 1049/2001.

[6] Cases T‑221/08, Strack v Commission [2016] ECLI:EU:T:2016:242 and T‑110/15, IMG v Commission [2016] ECLI:EU:T:2016:322.

[7] Article 4(2).

[8] Case T‑110/15, IMG v Commission [2016] ECLI:EU:T:2016:322, paras. 33.

[9] Case T‑110/15, IMG v Commission [2016] ECLI:EU:T:2016:322, para. 35.

[10] Case T‑110/15, IMG v Commission [2016] ECLI:EU:T:2016:322, para. 38.

[11] In Joined Cases T-391/03 and T-70/04, Franchet and Byk v Commission [2006] ECLI:EU:T:2006:190, the General Court found that a period of seven months was still reasonable, paras. 121-124.

[12] OLAF referred to Article 4, 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.

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

[14] 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.

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

[16] 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.

[17] As defined in 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 and in case law, see Cases T-494/08 to T-500/08 and T-509/08, Ryanair Ltd v European Commission [2010] ECLI:EU:T:2010:511, paras. 34-37.

[18] For example because of a particularly complex and time consuming assessment of the existence of an overriding public interest.

[19] Case T‑110/15, IMG v Commission [2016] ECLI:EU:T:2016:322, para. 39.

[20] Article 8(1) Regulation 1049/2001.

[21] Article 8(2) Regulation 1049/2001.

[22] Cases T-494/08 to T-500/08 and T-509/08, Ryanair Ltd v European Commission [2010] ECLI:EU:T:2010:511, paras. 35 and 37.

[23] NO-REPLY-ARES@ec.europa.eu.

[24] According to Article 2 of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time-limits, OJ, English Special Edition 1971 (II), p. 354, “‘working days’ means all days other than public holidays, Sundays and Saturdays”. 13, 14 and 17 April 2017 were public holidays, see Commission Decision of 30 November 2015 on public holidays for 2017 for the institutions of the European Union, OJ C 400, 2.12.2015, p. 3.