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Decision on how the European Border and Coast Guard Agency (Frontex) dealt with a request for public access to documents it had disclosed following previous access to document requests (case 4/2022/SF)

The complainant, a journalist, sought public access to all documents that Frontex had disclosed, following requests for public access, in the period from 2016 to 2018, and since November 2020 until the day of his request in December 2021. He also sought access to the requests made.

Frontex considered the request voluminous and suggested to the complainant that he split the request into several individual applications to be dealt with consecutively. The complainant refused and turned to the Ombudsman.

In the course of the inquiry the complainant limited his request to the documents already disclosed, which Frontex transmitted to him, albeit with some delay. Therefore, and although the Ombudsman is not convinced that Frontex’s treatment of the request was in line with the standards that citizens are entitled to expect from EU authorities, she decided to close the case. However, she asked Frontex to report to her on how in the future, it will make available in its public register documents that have been disclosed following public access requests.

 

Background to the complaint

1. In December 2021, the complainant made a request for public access to documents[1] to Frontex. He requested, in the first place, access to all documents that Frontex had disclosed in reply to requests for public access to documents in the period from 2016 to 2018 and since 20 November 2020 until the time of his request. In the second place, the complainant requested the corresponding text of each access request.

2. Frontex identified a large number of documents to fall within the scope of the complainant’s access request, namely 652 public access requests covering more than 3 500 documents. The documents had to be extracted from emails and, for more recent documents, from a database. Furthermore, the personal data contained in the access requests, which fell under the scope of the complainant’s request, would have to be redacted. As Frontex would not be able to deal with the complainant’s request within the applicable time limit[2], it suggested to the complainant, as a practical solution, that his request be divided into 18 requests. This would mean that Frontex would handle each of these 18 requests consecutively and in accordance with the applicable time limit.

3. The complainant was open to considering a practical solution. However, he strongly opposed the terms of the solution proposed by Frontex. He noted in particular that the documents at issue were largely documents that had previously been disclosed, and that the solution proposed would imply that the total processing time of his request would be around one year, namely 18 times 15 working days, which totals 270 working days - a time span that was unacceptable to him as a journalist.

4. Exchanges between the complainant and Frontex ensued. The complainant ultimately limited his request to documents already disclosed by Frontex, thus obviating the need for Frontex to redact personal data in access requests. In March and April 2022 Frontex transmitted the documents to the complainant, that is the more than 3 500 documents, previously disclosed in reply to requests for public access.

5. In the midst of those exchanges, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into how Frontex handled the complainant’s request for public access to documents.

7. In the course of the inquiry, the Ombudsman inquiry team met with the relevant staff of Frontex.  

Arguments presented to the Ombudsman

By the complainant

8. The complainant argued that Frontex’s practice of dividing a request into several requests and treating them consecutively is not in accordance with the EU legislation on public access to documents (Regulation 1049/2001). Further, the complainant considered that the way Frontex decides which requests it divides and then treats consecutively is not transparent. He claimed that Frontex applies this practice to all of his requests and that he feels forced into accepting the solutions that Frontex proposes.

9. The complainant considered that his request did not require any additional work, as Frontex had already disclosed the documents to other applicants. He also considered that Frontex should in any case already have published the previously disclosed documents in a document register on its webpage[3]. He claimed that Frontex did not explain how it extracts the documents and how long this typically takes. If he had not made a similar request in the past, he would have been unaware of how quickly Frontex can in fact handle such requests and he would have accepted Frontex’s initial suggestion to split his request into 18 requests. The handling of those requests could have taken more than one year.

10. He considered that Frontex is well funded and should have the staff to deal with public access requests in a timely manner.

By Frontex

11.  During the meeting with the Ombudsman inquiry team, Frontex’s staff stated that the number of public access requests Frontex receives has increased significantly. However, Frontex’s ‘public access to documents’ team has only four staff members dealing with these requests in addition to their other tasks.

12. Frontex said that it starts processing applications for public access to documents as soon as it receives them. This includes extracting the documents and assessing them individually to determine whether access could be granted.

13. It is Frontex’s reading of EU case-law[4] that it should not register requests that concern a very large number of documents - and hence not allow the deadlines to run - until it has found a ‘fair solution’ with the applicant. Frontex’s staff said that Frontex looks for guidance in the case law of the Court of Justice of the European Union[5] and the decisions of the Ombudsman[6] when suggesting fair solutions. When a request concerns a very large number of documents, Frontex generally suggests dividing the request and treating the requests consecutively as a ‘fair solution’.[7] Frontex does not have written rules or guidelines on how to apply this practice, but looks to decisions of supervisory bodies taking into account all relevant circumstances.

14. Frontex considered the processing of the complainant’s request challenging, as it concerned a very large number of documents that it had to search in and extract from emails and, for more recent documents, a database. Frontex’s staff explained that Frontex started processing public access requests with a dedicated ICT tool in 2020. Before that, Frontex processed such requests through emails, meaning that it did not store documents it had already disclosed before 2020 in one central location but in emails that it had sent to the respective applicants. Moreover, in order to properly handle the documents that were stored in emails, Frontex would have to manually transfer those documents to the new dedicated ICT tool. This involved a significant amount of work, as the request covered 3 500 documents for the period from 2016 to 2018. Frontex considered that due to the administrative workload this involved it could not process the request as one application.

The Ombudsman’s assessment

15. Public authorities should deal with requests for public access to documents in accordance with the law (Regulation 1049/2001) and principles of good administration. The EU legislator has clearly set out in the Regulation that requests for public access to documents shall be dealt with swiftly and within the time limits established. Principles of good administration require public authorities to be responsive, forthcoming and citizen friendly. They should also be attentive to the needs of the media, who play an important role in holding public authorities to account.

16. The request in this case involved a very large number of documents and the redaction of a significant amount of personal data in the public access requests that had been made to Frontex. Therefore, the Ombudsman finds it reasonable that originally, Frontex took contact with the complainant to seek a solution as to how to deal with the request. That being said, the terms of the proposed solution were clearly unsatisfactory, and understandably, the complainant took issue with those terms. Frontex‘s treatment of the request thus became delayed.

17. Frontex has now, transmitted all the documents to the complainant, in line with the reduced scope of his revised request. Therefore, and although the Ombudsman is not convinced that Frontex’s treatment of the request was in line with the standards that citizens are entitled to expect from EU authorities, no further inquiries are justified.

18. The Ombudsman notes that in her inquiry in case 2273/2019/MIG[8], Frontex said that it will make available in its public register documents that have been released following public access to documents requests. Compliance with that commitment may render cases like this one unnecessary in the future. The Ombudsman asks Frontex to report to her on that commitment within three months from this decision.

19. Moreover, the general issue of delays incurred by Frontex in the registration of public access requests, where the content of the request is clear, but where the request concerns a large number of documents, is subject to a recently launched own-initiative inquiry of the Ombudsman (OI/4/2022/PB).[9]

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following finding:

No further inquiries are justified. Frontex should, however, report to the Ombudsman within three months of this decision on its commitment to make available in its public register documents that have been released following public access requests.

The complainant and Frontex will be informed of this decision.

 

Emily O'Reilly


European Ombudsman
Strasbourg, 09/09/2022

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN, applicable to Frontex via Article 114 of Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1896

[2] The time limit is 15 working days which may be extended by another 15 working days.

[3] Article 11 of Regulation 1049/2001 states that each institution has to provide public access to a register of documents.

[4] Frontex refers to the judgment of 2 October 2014 in case C-127/13P, Strack v Commission, paras 26 - 28; https://curia.europa.eu/juris/document/document.jsf;jsessionid=578B2B401441DB4570DECBF7435B95C4?text=&docid=158192&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8931060

[5] Frontex refers to case C-127/13P, Strack v Commission, paras 26 - 28; judgment of 14 December 2017 in case T-136/15, Evropaïki Dynamiki v European Parliament, paras 82 - 103; https://curia.europa.eu/juris/document/document.jsf?text=&docid=197829&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8931060

[6] Frontex refers to cases 2067/2020/MIG; https://www.ombudsman.europa.eu/en/decision/en/143154, 1608/2017/MIG; https://www.ombudsman.europa.eu/en/decision/en/111254, 1409/2019/EWM; https://www.ombudsman.europa.eu/en/decision/en/122115 , 1808/2018/FP and 1817/2018/FP; https://www.ombudsman.europa.eu/en/decision/en/113546.

[7] Within in the meaning of Article 6(3) of Regulation 1049/2001.

[8] see https://www.ombudsman.europa.eu/en/doc/correspondence/en/135911

[9] see https://www.ombudsman.europa.eu/en/doc/correspondence/en/158517.