Background to the complaint

1. In September 2023, the complainant made a request for public access[1] to all documents related to the EU survey ‘Flash Eurobarometer[2] 532[3]’.

2. In October 2023, the Commission extended the time limit to respond to the complainant’s request. When the Commission failed to reply within the extended time limit, the complainant asked it to review this implicit refusal of their request (by making a ‘confirmatory application’).

3. In November 2023, the Commission sent its reply to the access request. It identified five documents as falling within the complainant’s public access request. It granted full access to one document and wide partial access to the remaining four documents. In doing so, the Commission invoked exceptions under the EU legislation on access to documents[4], arguing that disclosing the documents could undermine the privacy and integrity of individuals[5] and, in the case of one document, commercial interests[6].

4. In December 2023, the Commission informed the complainant that it closed their confirmatory application.

5. Dissatisfied with the way the Commission handled their public access request, the complainant turned to the Ombudsman in February 2024.

The inquiry

6. The Ombudsman opened an inquiry into the Commission’s refusal to grant full public access to the requested documents.

7. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue. The inspection revealed that in two of the four partially disclosed documents information had been redacted that did not seem to be personal data or commercially sensitive.

8. The Ombudsman inquiry team asked for a meeting with Commission representatives to discuss these two documents. In particular, the Ombudsman inquiry team asked, given the passage of time, whether wider access could now be granted. A report on this meeting[7] was shared with the complainant, who subsequently provided comments.  

9. Following the meeting, the Commission adopted a new decision, granting wider access to the documents at issue. The complainant did not comment on the wider access granted.

Arguments presented to the Ombudsman

10. In its first reply to the public access request, the Commission argued that full disclosure was prevented by the exception concerning the protection of the privacy and the integrity of the individual. It stated that the four partially disclosed documents contain personal data in the form of names and contact information of natural persons and of Commission staff not forming part of the senior management, as well as other information relating to identified or identifiable persons. The Commission considered that the complainant did not put forward a necessity for a specific purpose in the public interest to have the personal data transmitted.

11. The Commission further stated that full disclosure of one document (document 5) was also prevented by the need to protect commercially sensitive information of the contractor. It said that the document contains unit prices, financial calculations as well as the overall price, which constitutes sensitive business information. The Commission argued that disclosing this information would affect the contractor’s commercial interests.

12. During the meeting with the Ombudsman inquiry team, the Commission representatives clarified that the redacted parts of one document were covered by the exception concerning the protection of public security[8]. The Commission maintained that the redacted parts of the other document would fall under the exception of commercial interests. However, given the passage of time, the Commission representatives stated that it would consider whether wider partial access could now be granted.

13. In their complaint to the Ombudsman, the complainant claimed that the Commission did not provide all documents thereby omitting data for “political reasons”. They considered that public access to the requested documents is important, as there is an ongoing legislative process, in which several Member States still have to determine their position.

14. They argued that full transparency is necessary for the democratic process and to allow journalists to do their job and scientists to investigate what happened in this case. The complainant further argued that the public needs to be able to verify the full scope of targeting options of the advertisement campaign that the Commission selected, the collaboration with commercial organisations which the complainant described as disguised ‘NGOs’ and how polls are compiled to use the results at a later date to influence public opinion.  

15. Commenting on the meeting report, the complainant referred to a statement the Commissioner for Home Affairs made on X[9], that the Commission followed relevant guidelines and the law and that the promotion of its proposal is a standard practice. They considered that either this statement is incorrect and should be rectified, or that the Commission is wrong to protect the contractor’s reputation.

16. The complainant further considered that the public security exception in the context of a Eurobarometer poll violates the EU’s fundamental principles of transparency, in particular as there is a scientific consensus that this Eurobarometer poll produced invalid results and was improperly used by the Commission in “an unlawful targeted advertising campaign to influence the public opinion of individuals residing in member States that did not propose the Commission’s proposal.” They argued that it is in the interest of public security that there should be transparency about what exactly had happened with this Eurobarometer poll.

The Ombudsman’s assessment

17. The Commission has now granted wide partial access to the documents at issue, redacting personal data and limited commercially sensitive information only.

18. Regarding the redactions of personal data in the documents, the Ombudsman notes that EU data protection rules require a person seeking access to personal data to demonstrate a need to have such access. If that need is greater than the legitimate interests of the data subject, access can be granted. The complainant has not put forward any reasons as to why they would need that data. The Ombudsman therefore accepts that the Commission’s refusal to grant access to the personal data was justified.

19. Regarding the limited remaining redactions of commercially sensitive information, the Ombudsman notes that the name of the contractor has now been disclosed. The remaining redactions seem reasonable.

20. The Ombudsman further notes that the complainant did not comment on the wider access granted.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[10]:

By granting wider public access to the documents, the Commission has settled the complaint.

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

Rosita Hickey
Director of Inquiries

Strasbourg, 10/10/2024

 

[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

[2] The Flash Eurobarometer is an ad-hoc thematic survey that is carried out within a short timespan on a wide variety of specific topics that are relevant to the activities of the EU institutions. More information available here: https://europa.eu/eurobarometer/about/eurobarometer

[3] https://europa.eu/eurobarometer/surveys/detail/2656

[4] Regulation 1049/2001.

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

[6] Article 4(2) first indent of Regulation 1049/2001.

[7] https://www.ombudsman.europa.eu/doc/inspection-report/193461

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

[9] Available at: https://x.com/YlvaJohansson/status/1712840885870698945

[10] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions