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Decision in case 1676/2017/THH on the European Commission’s handling of requests for access to documents on how it deals with and tries to prevent the unauthorised disclosure of its documents

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  • Case: 1676/2017/THH
    Opened on 27 Sep 2017 - Recommendation on 15 Dec 2017 - Decision on 03 Jul 2018
  • Institution(s) concerned: European Commission

The complainant had made two requests for public access to documents relating to how the European Commission deals with and tries to prevent leaks (unauthorised disclosure of documents). The Commission limited the scope of the first request and refused access. For the second request, it granted partial access. The complainant turned to the Ombudsman as the Commission had failed to grant him public access to the documents and failed to comply with the relevant time limits.

The Ombudsman inquired into the issue and found that the Commission had been wrong to narrow down the scope of the complainant’s first request without consulting the complainant beforehand. The Ombudsman was not convinced by the Commission’s reasons for not giving full access to the documents and its restrictive interpretation of the scope of the second request. Therefore, the Ombudsman recommended that the Commission should reassess the access requests promptly. The Commission refused to follow the Ombudsman’s recommendation.

The Ombudsman regrets that the Commission did not follow her recommendation. She confirms that the Commission’s continued refusal to reassess the complainant’s access requests constitutes maladministration.

Background to the complaint

1. The complainant is a researcher at a German university who was conducting research into how the European Commission handles the unauthorised disclosure of documents by its own staff (so called “leaks”). He asked the Commission for access[1] to relevant documents from 2006 to 2015 by means of two access requests.

2. The complainant’s first request for access related to documents reporting security inquiries into “potential leakage, mishandling or compromise of sensitive non-classified information[2] for the period of 2006 to 2015. The Commission refused access, since it concerned sensitive documents[3] and would undermine the protection of the purpose of inspections, investigations and audits[4]. The complainant asked the Commission to review this decision in March 2017. He also offered to limit the request “in view of the potential administrative burden”. As an example he suggested a potential limit to the timeframe.

3. In the second access request, the complainant asked for access to the minutes of the weekly meetings of Heads of Cabinet and of the weekly meetings of Directors-General for 2006-2015 that related to document leaks or where anti-leak measures were discussed. He specified that he wanted access only to the parts of the documents that covered these issues and their contexts. The Commission granted wide partial access to the weekly meetings of the Directors-General. For the weekly meetings of Heads of Cabinet, the Commission extended the time limit and, after reminders from the complainant, responded to him. It had identified 72 documents that fell within the scope of the request and rejected access to the documents since they referred to internal reflections on sensitive matters and since disclosure would undermine the protection of public security[5]. The complainant asked the Commission to review its decision in June 2017.

4. The Commission extended the time limit to respond to both of the complainant’s review requests several times. The complainant sent many reminders to the Commission and informed it that he was under time pressure to submit his “final research output”.[6]

5. In September 2017, the complainant turned to the Ombudsman because he had not received a reply from the Commission for either of his review requests. The complainant wanted the Commission to grant the widest possible access to the documents requested. He was also concerned that the Commission had failed to respect the time limits for dealing with the access requests, both at initial and review stage.

6. In the course of the inquiry, the Ombudsman inspected various documents. The Commission eventually replied to the complainant’s requests for review and forwarded its replies to the Ombudsman. The Ombudsman received the complainant’s comments on the position expressed by the Commission. The Ombudsman was not convinced by the Commission’s arguments for not granting broader access to the documents. She therefore made a recommendation[7] to the Commission that it should reassess the complainant’s requests with a view of granting broader access without further delay. The present decision takes into account the Commission’s opinion on the Ombudsman’s recommendation, as well as the complainant’s comments.

The Ombudsman's recommendation

7. When handling the first access request, relating to security inquiries, the Commission narrowed down the scope of the request, after the complainant had declared his willingness to limit the scope, but without consulting the complainant on the details of the limitation it made. It considered only the period from March 2015 until the registration of the request for review and found six security inquiries. The Commission refused access to all the documents since disclosure would undermine the protection of public security[8], the purpose of investigations[9] and privacy and integrity of the individual[10], and since disclosure would seriously undermine the Commission’s decision-making process[11]. The Commission did not consider there to be any overriding public interest in disclosure.

8. The Ombudsman took the view that the Commission had been wrong unilaterally to narrow down the scope of the complainant’s access request. The complainant had made an offer to limit the temporal scope of his request, but the Commission never consulted the complainant in this regard[12]. Moreover, the period chosen by the Commission (after the entry into force of the 2015 Commission Decision, referred to above in footnote 2) was significantly different from that specified by the complainant (2006-2015).

9. Regarding the protection of public security, the Ombudsman considered that the Commission’s interpretation of the relevant rules was excessively broad, since “public security” is intended to concern social, economic and physical threats, such as terrorism, to the national security of the Member States, rather than internal security risks within an institution or organisation.

10. Concerning the second access request, relating to the minutes of Head of Cabinet meetings, the Commission found that only 27 out of the initial 72 documents were within the scope of the request. These documents contained content that was outside of the scope of the request, and therefore only partial access could be granted.

11. The Ombudsman considered that the Commission had correctly excluded documents that were outside of the scope of the request during its review.

12. Regarding the redactions of the remaining 27 documents, the Ombudsman found that the Commission had been overly restrictive when it determined what information was outside the scope of the request.

13. The Ombudsman therefore found that the Commission had wrongly limited the scope of both access requests and that this constituted maladministration. She made the following recommendation to the Commission:

The Commission should reassess, without further delay, the complainant’s requests with a view to granting broader access to documents, which should be reduced only in consultation with the complainant, and in the light of the Ombudsman’s comments on the public security exception.

14. In reply, the Commission stated that its own analysis was legally correct. It also noted that it had limited the scope of the first request only after the complainant had raised it as an option. Concerning the second request, the Commission was of the view that it had not been too strict in its interpretation of the scope of the complainant’s request. The Commission did not consider that remarks which “do not contain any specific consideration or examination by argument of [the issue of leaks]” to fall within the scope of “discussing the issue of leaks” as stated by the complainant in his access request. Furthermore, it did not consider the remark “further leaks could potentially damage the image of the institution” to fall within the scope of a request seeking “information regarding past leaks”.

15. The complainant commented on the Commission’s reply. He repeated his original concerns regarding delays and the substance of the Commission’s response. He reiterated that the Commission could not limit the scope of his access request without consulting him beforehand. Furthermore, the Commission had, rather than limiting the time period, changed it. The complainant also disagreed with the Commission’s interpretation of “discussing”, which he believed had been interpreted far too strictly when determining the scope of his access request. He expressed his concern at the Commission’s failure to address the points he had raised and its failure to comply with the Ombudsman’s recommendation.

The Ombudsman's assessment after the recommendation  

16. The Ombudsman regrets that the Commission did not follow her recommendation to reassess the requests for public access. The Commission has not addressed the arguments set out in the recommendation, in particular concerning the correct interpretation of the public security exception.

17. The Ombudsman maintains her view that the Commission was wrong to limit the scope of the complainant’s first access request without consulting him. Moreover, to limit it to a time period which was outside of the scope of his initial request was unreasonable.

18. The Ombudsman also maintains her view that the Commission had been overly restrictive when redacting the documents relating to the second access request, as exemplified by the Commission’s narrow definition of “discussing” set out above.

19. Regarding the substantive analysis of the documents, the Ombudsman does not agree with the Commission that the application of the public security exception was legally correct. Having viewed the documents, the Ombudsman does not accept that the public security exception can be properly invoked as the documents do not contain operational information on how the Commission handles and prevents leaks. Rather, the information in the documents is very brief and disclosure would not undermine the ability of the Commission to identify leaks nor prevent them, even if that were to be regarded as a matter of “public security”. Therefore, the Ombudsman confirms that, in her view, the public security exception does not apply.

20. The Ombudsman considers it appropriate to repeat the remarks she made on making her recommendation in this case. The Ombudsman has commented positively, on many occasions, on the increased transparency of the Juncker Commission. She therefore finds it disappointing that a citizen engaged in legitimate academic work should have had such a poor experience to date in his request for access to documents. The complainant has shown persistence, but other citizens might understandably have given up when confronted with such delays and retained an unfavourable view of the openness and accountability of a key EU institution. The Commission must always take into account the reputational risk of dealing with legitimate requests in a manner that falls short of the high standards expected.

Conclusion

Given the Commission’s rejection of her recommendation to reassess the complainant’s requests for public access to documents, the Ombudsman closes this case with the following conclusion:

The Commission’s wrongful limitation of the scope of the requests and excessive redaction of the documents to which it granted partial access constitutes maladministration.

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

 

Emily OʹReilly

European Ombudsman

Strasbourg, 03/07/2018

 

[1] Regulation 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to documents of the European Parliament, the Council and the Commission, OJ L 145, 31.05.2001, p.43.

[2] According to Art 13 of Commission Decision 2015/443 of 13 March 2015 on Security in the Commission, OJ 2015 L 72, p. 41, such security inquiries shall be documented.

[3] Art 9 Regulation 1049/2001.

[4] Art 4 (2) third indent Regulation 1049/2001.

[5] Art 4 (1) third indent Regulation 1049/2001.

[6] For further information on the background to the complaint, the parties’ arguments and the Ombudsman’s inquiry, please refer to the full text of the Ombudsman’s recommendation available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/87426/html.bookmark

[7] The Ombudsman’s recommendation is available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/87426/html.bookmark

[8] Article 4 (1) (a) first indent Regulation 1049/2001.

[9] Article 4 (2) third indent Regulation 1049/2001.

[10] Article 4 (1) (b) Regulation 1049/2001.

[11] Article 3 Regulation 1049/2001.

[12] Article 6 (3) Regulation 1049/2001 provides the institution with the possibility to limit the scope in the event of very large access requests. It cannot limit the scope unilaterally before it confers with the complainant and attempts to find a fair solution.