Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The case concerned a complaint, submitted by a German citizen in 2012, on OLAF's handling of a request for public access to documents relating to an OLAF investigation, closed in 2009. The closed investigation related to alleged irregularities in the implementation of a grant agreement by an NGO. The complainant requested access to an initial OLAF assessment, an OLAF decision to close the case and a final case report.

During the inquiry the complainant was given partial access to the documents. As regards the redacted information, the Ombudsman now makes a Draft Recommendation to OLAF. The Ombudsman saw no reason why releasing the identity of the Commission services which assisted OLAF would lead the Commission's services to diminish their willingness to cooperate with OLAF in future OLAF investigations. Further, she found that OLAF should disclose the amount of public money the NGO received to carry out the project and the amount of money that is at issue in its investigation. Finally, she found that OLAF should disclose the reasons for closing its inquiry.

As regards the protection of personal data in the documents, the Ombudsman found, however, that the complainant had not provided any convincing argument showing the necessity of having the names of OLAF investigators transferred to him or the names of staff members of the NGO transferred to him As such, the Ombudsman considers it appropriate to close her inquiry into this aspect of the complaint with a finding that no further inquiries are justified.

The background to the complaint

1. The complaint, submitted by a German citizen in 2012, concerns OLAF's handling of a request for public access to documents relating to an OLAF investigation, closed in 2009. The closed investigation related to alleged irregularities in the implementation of a grant agreement by an NGO. The complainant requested access to an initial OLAF assessment, an OLAF decision to close the case and a final case report.

The inquiry

2. The Ombudsman opened an inquiry into the complaint and identified the following allegations and claims:

Allegations

OLAF failed properly (i) to deal with the complainant´s request for access to documents pursuant to Regulation 1049/2001 within the deadlines provided for in that Regulation and (ii) to grant the complainant access to the requested documents.

Claims

OLAF should (i) apologise for not having properly dealt with the complainant´s request for access to documents and (ii) grant the complainant access to the documents he requested.

3. As a first measure of inquiry, the Ombudsman's services carried out an inspection of OLAF´s file concerning this case.

4. Following the inspection of documents, OLAF gave the complainant redacted copies of the requested documents.

5. OLAF subsequently submitted its opinion on the complaint, which was forwarded to the complainant for observations.

6. Following its opinion to the Ombudsman, OLAF also wrote to the complainant setting out the reasons why full access could not be granted.

Allegations and related claims that OLAF failed (i) to deal with the complainant´s request for access within the time limit, and (ii) to grant the complainant access to the requested documents

Arguments presented to the Ombudsman

7. The complainant argued that OLAF failed to handle his request for access promptly. The complainant claimed that OLAF should apologise for not having properly dealt with his request and should grant him access to the requested documents.

8. During the Ombudsman's inquiry OLAF granted the complainant partial access to the documents and apologised to the complainant for the delay in dealing with his request.

9. In its opinion, OLAF stated that it had now granted partial access to the requested documents. However, it stated, it could not grant full access to the requested documents because they contain personal data of individuals. As a result, their full disclosure would infringe Regulation 45/2001[2]. OLAF said, in this respect, that the complainant did not demonstrate, as required by Article 8(b) of Regulation 45/2001, the necessity for OLAF to transfer to him the personal data contained in the requested documents.

10. OLAF argued that since the requested documents include the names of informants and information that could allow their identification, the full public disclosure of the requested documents would have an adverse effect on their reputation and, therefore, undermine the protection of their privacy and integrity. OLAF also stated that the European Data Protection Supervisor (EDPS), in his Opinion C 2010-0458 of 30 July 2010, recommended that OLAF should guarantee the confidentiality of whistleblowers and informants, except where this would contravene national judicial procedural rules or where false statements have been made maliciously.

11. OLAF also argued that the names of OLAF's investigators had to be removed from the requested documents. OLAF said that these officials are involved in a number of investigations conducted by OLAF. OLAF argued that, given the sensitivity of OLAF's investigations, OLAF must take all measures in order to avoid exposing such persons to undue external pressure as such external pressure could undermine future investigations and undermine its decision-making process.

12. According to OLAF, the requested documents contain information related to its investigations on the misuse of EU grants and instances of maladministration. Public disclosure of the names of the legal entities involved in such investigations could harm their reputation and other legitimate business interests.

13. OLAF argued that there was no overriding public interest in disclosure of the redacted parts of the requested documents. Moreover, it added, the redacted parts of the requested documents related to the protection of the privacy and integrity of individuals cannot be affected by an overriding public interest in disclosure.

14. In his observations, the complainant took note of OLAF's apology for not having dealt with his request in a timely manner. Thus, he considered that the first aspect of his claim was settled.

15. As regards the protection of informants, the complainant agreed that their names should be redacted. He considered, however, that the names of OLAF´s investigators, in particular of the official responsible for the case, should be disclosed. Moreover, he argued, the Commission had previously granted him full access to a document where the name of the person who chaired the NGO under investigation was mentioned.

16. With regard to OLAF's argument relating to the protection of commercial interests of legal entities, the complainant stated that this could not apply to the NGO that had been investigated by OLAF, since the NGO no longer existed.

17. Finally, the complainant stated that there was an overriding public interest in disclosure of the documents since the debt of the organisation in question had not been recovered.

The Ombudsman's assessment

18. In his observations, the complainant took note of OLAF's apology for not having dealt with his request for access to documents in a timely manner. She thus considers that the first aspect of his claim has been settled.

19. As regards the substance of the decision to refuse full access to the documents, the Ombudsman has carefully examined the redacted versions of the documents which were released to the complainant and the non-redacted versions. She notes that the redacted versions contain significant information relating to the OLAF investigation. The Ombudsman commends OLAF for releasing these redacted versions of the documents. However it is necessary to analyse carefully the justifications for the redactions to ensure that the redactions are not excessive.

Names of informants

21. The Ombudsman notes that the complainant does not contest the arguments of OLAF relating to the non-disclosure of the names of informants. The Ombudsman agrees with the position of OLAF, as a matter of principle. She notes that if OLAF were to release the names of informants the interests of informants might be compromised. As a result, informants might be less willing to cooperate with OLAF in future investigations, thus undermining OLAF’s capacity to carry out investigations.

22. The Ombudsman has examined closely the documents and has identified only one name which could be validly classified as an “informant”.

23. The Ombudsman notes, however, that OLAF seems to have considered that a Commission service that cooperated with the OLAF investigation should also be classified as an “informant”. It has therefore redacted the name of that Commission service. The Ombudsman sees no reason why releasing the identity of the Commission services which assisted OLAF would lead the Commission's services to diminish their willingness to cooperate with OLAF in future OLAF investigations. The Ombudsman will thus make a Draft Recommendation calling on OLAF to release the name of this service.

Protection of personal data

24. As regards the protection of personal data of OLAF investigators and other persons mentioned in the documents, the Ombudsman agrees that when a request is made for access to documents that contain personal data, Regulation 45/2001 becomes fully applicable[3]. This means that, assuming no other justification for the disclosure of the documents exists, the person seeking public access should provide reasons why the documents should be disclosed to him or to her. Even if such reasons are provided, the personal data cannot be released if there is reason to assume that the data subject's legitimate interests might be prejudiced (see Article 8(b) of Regulation 45/2001[4]).

25. It is the Ombudsman's view that if an institution considers it necessary to redact personal data from a document, it should expressly inform the person seeking access of the existence and nature of personal data in the documents and expressly inform the person seeking access that they should put forward reasons why they should obtain public access to that personal data. This request to the person seeking access should occur as quickly as possible, so as to enable that person requesting access to specify why the personal data should be transferred to him or to her. The communication to the requester of the need to provide reasons for accessing personal data should occur in the initial decision refusing access, thereby giving the requester the opportunity to provide such reasons when renewing his or her request for public access. The communication to the requester of the need to provide reasons for accessing personal data should also contain sufficient information about the nature of the personal data so as to allow the requester to put forward reasons why he or she needs that data.

26. In its initial responses, OLAF correctly informed the complainant that the documents contained personal data. However, OLAF could have improved that communication by 1) identifying the nature of the personal data concerned (it did not inform the complainant that the documents contained personal data relating to staff of the NGO, an informant and OLAF staff) and 2) expressly requesting the complainant to put forward reasons why he should have access to that data. If OLAF had done so, the complainant would have been sufficiently well-informed of the need to put forward such reasons. With a view to assisting OLAF to improve its procedures further, the Ombudsman will, when closing her inquiry into this case, make a further remark about how best to communicate the above information to persons seeking public access to documents.

27. While OLAF did not inform the complainant of the nature of the personal data redacted from the documents when it first responded to him, it has now done so (it has stated that the personal data relates to NGO staff, its investigators and informants). The Ombudsman notes that the complainant has not, in his observations to the Ombudsman, provided any convincing argument showing the necessity of having the names of OLAF investigators transferred to him or the names of staff members of the NGO transferred to him (as noted above, the redaction of the name of an informant is already justified on the basis of the need to protect the purpose of OLAF investigations). Even if such reasons were provided by the complainant, there are strong reasons to consider that certain personal data contained in the documents cannot be released on the basis that there is reason to assume that the data subjects' legitimate interests might be prejudiced by such disclosure. In particular, the Ombudsman notes, NGO personnel named in the documents have not been found to have committed any wrongdoing by a competent court. As such, their association with an OLAF investigation could harm their legitimate interests. As such, the Ombudsman considers it appropriate to close her inquiry into this aspect of the complaint with a finding that no further inquiries are justified.

Commercial interests of a natural or legal person

28. As regards the possible harm which public disclosure of the documents might cause to the commercial interests of natural or legal persons, OLAF argued that disclosure of certain information would impact upon the reputation of the NGO under investigation and upon its commercial interests.

29. As regards the name of the NGO under investigation, and other information which could be used to identify it, the Ombudsman notes that if the NGO were still in existence, the release of information relating to an OLAF investigation in which the NGO was investigated for irregularities could conceivably damage its legitimate commercial interests, especially since the investigation concerning the NGO was closed without a finding that the NGO committed any wrongdoing. The fact that the NGO no longer exists does not necessarily imply that no commercial interests might be damaged by the disclosure of its name. It may well be the case that damage may occur to the legal entities and persons related to the dissolved NGO. However, as the complainant is already aware of the name of the NGO concerned, the Ombudsman does not consider that it is proportionate[5] to pursue further her inquiry on this point.

29. The Ombudsman notes, however, that OLAF has also redacted information relating to the amount of public money which was provided to the NGO. The Ombudsman does not consider that the amount of public money an NGO receives to carry out projects in the public interest should ever be deemed to be "commercially confidential". Such information should therefore be disclosed in the public interest. In particular, the Ombudsman considers that the amount of money involved in the OLAF investigation should also be disclosed in the public interest. In short, it is important for the public to be made aware of the extent of a possible misuse of public funds. This public interest is indeed heightened by the fact that the OLAF investigation was closed without any finding by OLAF. The Ombudsman will therefore include these points in her Draft Recommendation.

Additional redacted information

30. Finally, the Ombudsman notes that OLAF has redacted the reasons for closing its inquiry (in particular, significant parts of the last bullet point of Section 1 (Results) and significant parts of Section 2 (Conclusions and Recommendations) of the Final Case Report). It has provided no reasons to justify these redactions. The Ombudsman considers that, in any event, and notwithstanding the absence of any justifications for these redactions in OLAF's decision, there is a public interest in knowing why OLAF closed, without making any findings, its inquiry into an alleged misuse of public funds. The Ombudsman will therefore include this point in her Draft Recommendation.

The draft recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following draft recommendation, in relation to the redacted portions of the documents, to OLAF:

OLAF should disclose the name of the Commission services that cooperated with the OLAF investigation.

OLAF should disclose the amount of public money the NGO received to carry out the project and the amount of money that is at issue in its investigation.

OLAF should disclose the reasons for closing its inquiry.

OLAF and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, OLAF shall send a detailed opinion by 30 June 2015. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

Strasbourg, 13/05/2015

 

Emily O'Reilly

European Ombudsman

 

[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p. 1.

[3] See Case C-28/08 P Commission v Bavarian Lager [2010], ECR I-6055.

[4] Article 8(b) reads "Without prejudice to Articles 4, 5, 6 and 10 (of Regulation 45/2001), personal data shall only be transferred to recipients (...) if the recipient establishes the necessity of having the data transferred and if there is no reason to assume that the data subject's legitimate interests might be prejudiced."

[5] What is at issue here is public access to documents. The fact that some of the content of a document may already be known to some parties (including the requester) is not, in principle, a reason to conclude that that content need not be disclosed again. In the circumstances of this case, however, it is not proportionate to seek to pursue this point.