The background to the complaint

1. The present case concerns an alleged failure by the European Anti-Fraud Office (hereinafter 'OLAF') to grant full access to the documents to which the complainant had requested access under Regulation 1049/2001[1].

2. The complainant is a stakeholder of a company which holds the commercial rights for several varieties of durum wheat. On 22 August 2009, he submitted to OLAF a request for public access to documents concerning two OLAF investigations, namely, OF/2006/0822[2] and OF/2006/0104.

3. By letter of 25 September 2009, OLAF asked the complainant to clarify his request, which, in OLAF's view, was lacking sufficient details, and, as formulated, would concern an excessive number of documents.

4. By e-mails of 28 September and 21 October 2009, the complainant reiterated his request for access to OLAF's case files OF/2006/0822 and OF/2006/0104. However, he sent these messages to the personal mailbox of an OLAF staff member who had, in the meantime, left OLAF. By e-mail of 22 October 2009, that person informed the complainant about this fact and stated that his e-mails would be forwarded to OLAF. However, it appears that this did not happen.

5. On 11 November 2009, the complainant lodged a complaint with the Ombudsman and alleged that OLAF failed to reply to his e-mails of 28 September and 21 October 2009. The complaint was registered under reference number 2821/2009/IP.

6. On 11 December 2009, the Ombudsman's services informed the complainant that the Ombudsman had instructed them to contact OLAF in order to explore the possibility of finding a rapid solution to his complaint 2821/2009/IP. The Ombudsman's services forwarded the complainant's e-mails of 28 September and 21 October 2009 to OLAF on the same day.

7. Given that in its letter to the complainant dated 25 September 2009, OLAF requested him to clarify his request for access to the documents under Articles 6(2) and 6(3) of Regulation 1049/2001, OLAF interpreted the complainant's e-mails dated 28 September and 21 October 2009 as an initial application pursuant to Article 7 of Regulation 1049/2001.

8. On 21 December 2009, OLAF sent a holding reply to the complainant and explained to him that it had not received his request of 28 September 2009 and that his request of 21 October 2009 had reached it with some delay. The complainant sent a further e-mail to OLAF on 23 December 2009 and criticised its handling of his request. He also reiterated his request for access and insisted that this access should be granted without any further delay.

9. By letter of 3 February 2010, OLAF apologised to the complainant for the communication problems and granted him partial access to a document dated 25 June 2007 concerning the assessment of initial information in its investigation OF/2006/0822 and to a corresponding document related to its investigation OF/2006/0104.

10. By e-mails of 5 February 2010, the complainant made a confirmatory application to OLAF pursuant to Article 7(2) of Regulation 1049/2001, reiterating his request for full access to the documents related to the case file OF/2006/0822. For this reason, the complainant's request henceforth concerned OLAF investigation OF/2006/0822 only.

11. Given that OLAF had replied to the complainant's e-mails of 28 September and 21 October 2009 on 3 February 2010, the Ombudsman closed his inquiry into complaint 2821/2009/IP on 2 March 2010.

12. On 9 March 2010, OLAF sent a holding reply to the complainant and informed him that it had to extend the time limit for replying to his confirmatory application by 15 working days.

13. On 9 June 2010, OLAF decided on the complainant's confirmatory application. In its decision, OLAF first referred to the applicable legal provisions[3] and the case law of the Union courts, which, according to OLAF, confirmed that it was under no obligation to grant access to the documents forming the subject-matter of an investigation[4]. It also pointed out that it follows from the case law that the purpose of Regulation 1049/2001 is to guarantee access to documents to the general public[5]. Therefore, any document disclosed to an individual is also disclosable to the wider public.

14. OLAF then informed the complainant that it had identified a total of 37 documents that the complainant was already in possession of, because these documents constituted correspondence between him and OLAF. OLAF identified 22 further documents falling within the scope of his request. These documents were either OLAF's internal documents or its correspondence with third parties. OLAF explained that it had already granted the complainant partial access to one of its internal documents, as referred to above. It went on to state that there was one further document which related to a declaration received from the complainant, and which could therefore be disclosed to him personally. Disclosing that document did not, however, constitute a disclosure within the meaning of Regulation 1049/2001. OLAF then explained that, as regards the aforesaid 22 further documents falling within the scope of his request, it could grant him full access to five documents and partial access to eight documents. As regards the remaining parts of the eight documents, as well as the remaining nine documents, OLAF refused access to them on the basis of Article 4(1)(b)[6], Article 4(2), first indent[7], and Article 4(3), second subparagraph[8] of Regulation 1049/2001.

15. In its letter of 9 June 2010, OLAF also assessed the possibility of granting partial access to the remaining nine documents. In OLAF's view, however, partial access was not possible, given that the information they contained fell entirely under the exception provided for in Article 4(3), second subparagraph of Regulation 1049/2001. It then assessed whether there was an overriding public interest in disclosure, but concluded that there was no such interest requiring it to change its position. In the present case, the public interest was rather the protection of OLAF's decision-making processes, of the independence of possible future investigations, as well as of the privacy and commercial interests of natural or legal persons related to OLAF investigations.

16. On 28 June 2010, the complainant submitted the present complaint to the European Ombudsman.

The subject matter of the inquiry

17. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation

OLAF failed to provide valid and adequate grounds for refusing to grant full access to all the documents concerning its investigation OF/2006/0822.

Claim

OLAF should reconsider its position and grant full access to the requested documents.

The inquiry

18. On 5 July 2011, the Ombudsman requested OLAF to submit an opinion on the complainant's allegation and claim. On 26 August 2011, OLAF submitted its opinion, which was forwarded to the complainant for observations by 31 October 2011. The complainant did not submit any observations on the opinion.

19. On 26 July 2011, the Ombudsman's services carried out an inspection of OLAF's file concerning an own-initiative inquiry opened by the Ombudsman. On that occasion, OLAF also provided the Ombudsman's services with copies of all the documents concerning its investigation OF/2006/0822.

The Ombudsman's analysis and conclusions

A. Allegation that OLAF failed to provide valid and adequate grounds for refusing access to the requested documents and related claim

Arguments presented to the Ombudsman

20. In his complaint to the Ombudsman, the complainant essentially argued that the conditions for invoking the exceptions relied on by OLAF were not met in the case at hand. He therefore considered that OLAF's decision lacked valid reasons. In particular, the complainant criticised OLAF's view that disclosing the documents would undermine its decision-making process, because, in the case at hand, OLAF closed the investigation as a non-case, without taking any further action on the matter.

21. In its opinion, OLAF pointed out that it is legally bound, under the legislation governing its investigations, to treat the information it obtains as confidential and subject to professional secrecy. It considered the complainant's application not to be clear, but pointed out that it provided him with the maximum possible support by identifying the relevant documents. OLAF's decision was based on a thorough analysis, taking into account all particular aspects of its activities during the assessment phase of a case. As regards its refusal to disclose some of the documents, OLAF took the view that the reasons for its position were properly stated and fully justified. The nature and degree of detail of information contained in the documents was also duly taken into account, and the replies indicated the applicable exception and the reason justifying reliance on the said exception. Invoking the exceptions was strictly based on a concrete examination of the documents.

22. As regards the complainant's argument that OLAF should not have applied the exception concerning opinions for internal use (Article 4(3), second subparagraph of Regulation 1049/2001), OLAF pointed out that it cannot reveal its internal reflections even when an investigation is closed as a non-case. Disclosure of the particular steps taken during the assessment phase and of the way information is collected could be harmful for OLAF's future assessments and investigations. In support of that view, OLAF also referred to the case law of the General Court[9], according to which Article 4(3), second subparagraph of Regulation 1049/2001 continues to apply even after the decision has been taken, since the risk of self-censorship remains for the future.

23. OLAF apologised for the delays in dealing with the complainant's requests.

24. The complainant did not submit any observations on the opinion.

The Ombudsman's assessment

25. The Ombudsman recalls that, in support of its position, OLAF invoked three of the exceptions provided for in Regulation 1049/2001, namely, the protection of privacy and integrity of an individual (Article 4(1)(b)), the protection of commercial interests (Article 4(2), first indent), and the protection of the decision-making process (second subparagraph of Article 4(3)). However, OLAF mainly focused on the exception set out in the second paragraph of Article 4(3).

26. In this respect, it is useful to recall that, in its decision on the complainant's confirmatory application, OLAF stated that it needs a certain "space to think with a view to protecting the decision-making process". It also argued that "the possible disclosure of [the] documents concerned would seriously undermine OLAF's decision-making process and would result in a serious undermining of the independence of future investigations". In its opinion on the complaint, OLAF reiterated its view that it needs a certain "space to think and could not reveal its internal reflections even in a case when information was eventually classified as a non case". It added that the way information is collected could be "harmful for future assessments and investigations" and also invoked the case law of the General Court (see footnote 9 above).

27. According to the second subparagraph of Article 4(3) of Regulation 1049/2001, "[a]ccess to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure".

28. The Ombudsman recalls that the case-law of the EU courts has clarified the conditions that need to be fulfilled in order for an institution to be able to invoke this or any other of the exceptions set out in Article 4 of Regulation 1049/2001:

"In that regard, it should be borne in mind that the examination required for the purposes of processing a request for access to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception is not sufficient to justify application of that exception. Such application may, as a rule, be justified only if the institution has previously assessed whether access to the document would specifically and effectively undermine the protected interest. On the other hand, the risk of a protected interest being undermined must, if it is to be relied upon, be reasonably foreseeable and not purely hypothetical (see judgment of 11 March 2009 in Case T-166/05 Borax Europe v Commission, not published in the ECR, paragraph 88 and the case-law cited)."[10]

29. The judgment to which OLAF itself referred in its opinion makes it clear that the institution needs to carry out its relevant analysis (i) "on a document-by-document basis" and (ii) "in an individual and specific way"[11].

30. However, both in its decision on the complainant's confirmatory application and in its opinion OLAF merely invoked, in general terms, what it perceived to be the need to protect its 'space to think', without assessing whether granting access to the documents or parts of documents concerned would specifically and effectively undermine the interest protected by the second paragraph of Article 4(3) of Regulation 1049/2001.

31. It follows that OLAF's assessment of the complainant's requests for access clearly does not meet the standard set by the case-law it referred to.

32. In cases such as the present one, the Ombudsman would normally consider making a friendly solution proposal or a draft recommendation to the institution concerned. In the present case, however, the Ombudsman notes that the complainant did not submit any observations either in the present case or in the parallel case 2038/2010/(IP)EIS which he himself had brought, even though he was given several opportunities to do so. Moreover, a considerable amount of time has lapsed since the complainant's confirmatory application, and it is not clear whether he is still interested in being given access to the documents he had requested. In light of this, the Ombudsman concludes that there are no grounds for further inquiries into the present case.

33. At the same time, the Ombudsman notes that the complainant has the possibility of submitting to OLAF a new request for access if he is still interested in the documents concerned.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further inquiries into the complaint.

OLAF and the complainant will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 4 September 2013

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[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 Commissions documents, OJ 2001 L 145, p. 43.

[2] The investigation related to alleged irregularities with regard to durum wheat in Italy.

[3] In this respect, OLAF referred to Article 339 of the Treaty on the Functioning of the European Union, Articles 8(1) and 8(2) of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1) and Article 17 of the EU Staff Regulations.

[4] Case T-48/05 Franchet and Byk v Commission [2008] ECR II-1585, paragraphs 255 to 258 and the case law cited therein.

[5] Joined cases T-110/03, T-150/03 and T-405/03 Sison [2005] ECR-II-1429, paragraphs 50 to 55.

[6] Article 4(1)(b) of Regulation 1049/2001 reads: "The institutions shall refuse access to a document where the disclosure would undermine the protection of [...] privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data".

[7] Article 4(2), first indent of Regulation 1049/2001 reads: "The institutions shall refuse access to a document where the disclosure would undermine the protection of [...] commercial interests of a natural or legal person, including intellectual property".

[8] Article 4(3), second subparagraph of Regulation 1049/2001 reads: "Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure".

[9] Case T-403/05 My TravelGroup plc v Commission [2008] ECR II-2027, paragraph 98.

[10] Case T-250/08 Batchelor v Commission [2011] ECR II-2551, paragraph 78.

[11] See footnote 9 above.