Background to the complaint

1. The complainant is a Greek citizen. In September and October 2016, he requested that the European Anti-Fraud Office (OLAF) give him public access[1] to the final report of its investigation into allegations of corruption and undue influence in awarding a contract under an EU programme in Albania.

2. OLAF refused to grant public access to the report. It invoked an exception provided for under the EU’s rules on public access to documents (Regulation 1049/2001), arguing that disclosing the report would undermine the ‘purpose’ of its investigation[2]. To this end, it referred to EU case-law, which has established a ‘general presumption’ of non-disclosure regarding OLAF investigations[3].

3. The complainant then asked OLAF to review its decision[4], but OLAF maintained its refusal to disclose the report[5].

4. The complainant then turned to the Ombudsman in January 2017.

The inquiry

5. The Ombudsman opened an inquiry into OLAF’s refusal to disclose the final report of its investigation.

6. In the course of the inquiry, the Ombudsman carried out a thorough analysis of OLAF’s decision and the arguments made by the complainant. The Ombudsman’s inquiry team also met with OLAF’s representatives and inspected the final report.

Arguments presented by the parties

Application of a general presumption

7. In his request for review, the complainant argued that the final report in question should not be covered by the general presumption relied upon by OLAF because:

· OLAF has already granted public access to the final reports of investigations in other cases[6]. In some of these cases, the applicants were able to secure public access to at least some of the documents in question through another forum (e.g. before a national court, proceedings before a national competition authority or in the context of compensation proceedings^[7]);

· OLAF did not take into account the Ombudsman’s findings in other (similar) cases that OLAF should grant access to documents from an investigation file[8];

· the general presumption should not apply “in perpetuity”;

· the scope of the exception should be limited only to internal documents (such as draft legal opinions or correspondence between EU institutions in the context of an investigation[9]); in this case, the final report is not an internal document.

8. In reply, OLAF explained that the final report contains information gathered during the investigation, as well as the analysis and assessment of that information by OLAF. It argued that disclosing the final report would undermine the purpose of its investigation, and cited the relevant exception provided for in Regulation 1049/2001[10]. It pointed to related EU case-law, which has established that there is a ‘general presumption’ that documents related to OLAF investigations should not be disclosed, as doing so could fundamentally undermine the objectives of the investigation, as well as both the related and future decision-making processes[11]. Disclosing documents from investigations would seriously affect OLAF’s decision-making process by revealing its strategy and working methods, and by limiting OLAF's power to make independent assessments and to consult the EU institutions about very sensitive issues.

9. OLAF added that confidentiality of documents related to its investigations was necessary, as these documents contain highly sensitive information on individuals and business practices. Disclosing this information could significantly harm the reputation of those involved. In addition, disclosing documents after an investigation is closed could act as a disincentive for individuals to cooperate with it in future investigations, thereby seriously compromising the effectiveness of OLAF's investigative activities.

10. OLAF concluded that the general presumption that documents related to its investigations should not be disclosed applies regardless of whether the documents concern an ongoing or a closed investigation[12]. OLAF further noted that, at the time of its decision in this case, the investigation had been closed recently and the final report had been forwarded[13] to the relevant EU bodies, which should be granted sufficient time to decide on how to follow-up.

Overriding public interest

11. The complainant argued that there was an overriding public interest in disclosing the final report. The fact that OLAF had opened the investigation concerning the award of the contract was widely reported in the Albanian press. The absence of any information about the outcome of the investigation had led to widespread speculation[14]. Failing to provide information could lead the public to conclude that OLAF had not recommended any remedial measures. This could give the impression that the EU is applying double standards, by not addressing corruption related to EU funds, while at the same time criticising corruption in the Albanian administration and judiciary.

12. The complainant further argued that the lack of information created concerns that the allegations of corruption were not adequately investigated[15].

13. He also referred to EU case-law, which has established that the principle of transparency can constitute an overriding public interest^[16]. In his view, case-law has also established that combatting fraud within EU bodies can require the proactive dissemination of at least some information to the public[17]. He also referred to previous decisions of the Ombudsman in which the Ombudsman had taken the view that ”there is no absolute presumption that releasing general information in relation to an investigation would prejudice the investigation”,[18] and that the public is entitled to be informed of the reason why OLAF closed an investigation into allegations of misuse of public funds[19].

14. In OLAF’s view, the complainant’s arguments had not demonstrated that, in this case, the principle of transparency should prevail over the need to maintain the confidentiality of the final report, as established by EU case-law[20].

15. OLAF also noted that the case-law invoked by the complainant in support of his argument based on the principle of transparency did not concern documents relating to OLAF’s investigations. In addition, the principle of transparency in itself is not an appropriate justification for establishing an overriding public interest.

16. Regarding the risk of further speculation, OLAF noted that, whatever the outcome of its investigation, the conclusions of an OLAF final report do not adversely affect the legal position of the person concerned[21]. OLAF has no competence to conduct or even initiate disciplinary, administrative or judicial proceedings. Finally, given that OLAF has transmitted its final report to the competent bodies, which had not yet had a reasonable period to examine how to follow-up, the interest of those bodies in examining the final report has to prevail over the interest of the public in having access to it.

17. OLAF stated that it assesses all information concerning allegations of fraud, corruption and illegal activities affecting the EU’s ‘financial interests’ in accordance with the criteria set out in the EU regulation governing OLAF investigations (Regulation 883/2013). It is also subject to a regular monitoring by an independent ‘Supervisory Committee’. As such, the complainant’s concerns about whether its investigation was adequate were not founded.

18. OLAF argued that the case-law to which he referred had found that disclosing certain information to the public infringed the Commission's duty to its staff. Thus, contrary to the complainant’s view, this had not established a duty to proactively disseminate information to the public about fraud investigations. In addition, OLAF does not have a general obligation to inform the public about the outcomes of all its investigations, or even about the opening of an investigation and its stages[22]. Therefore, there can be no legitimate expectations on the part of the public to obtain such information.

19. OLAF also stated that it is not obliged to inform the public of the reasons that led to an investigation being closed. While OLAF’s Director-General is entitled to provide the public with certain information, he must also ensure that he does so in a neutral and impartial manner, and in line with the principle of the confidentiality of OLAF’s investigations[23]. Contrary to the complainant’s view, neither the seriousness of the allegations nor the fact that he was aware of the investigation means that OLAF is obliged to make public the findings and outcome of the investigation.

Partial access

20. The complainant argued that OLAF could address his request by granting ‘partial access’[24] to the final report. In his view, this could be achieved by ‘[providing him with] information regarding the outcome of the investigation /whether the allegations were held to be well-founded or not, whether the report was forwarded to an EU body for further action, and if yes, that body’s identity’[25]. He contended that this would not undermine the effectiveness of the investigation.

21. He also argued that OLAF should carry out a section-by-section examination of the final report, with a view to ascertaining which parts of the report were being used in other pending proceedings, and are therefore subject to confidentiality. It should disclose those parts that are not being used in any such proceedings[26].

22. In reply, OLAF stated that the general presumption of non-disclosure of documents from its investigations means it does not need to assess whether partial access should be granted[27]. Finally, it noted that EU institutions or bodies that receive a final report are free to decide on the appropriate follow­up. As such, OLAF cannot identify what parts of a final report will not be used in future proceedings and could thus be made public.

The Ombudsman's assessment

23. The Ombudsman notes that, in its response to the access to documents request, OLAF relied on the exception provided for under Regulation 1049/2001 for protecting the purpose of investigations[28].

Regarding the application of a general presumption

24. EU case-law has established a general presumption of non-disclosure of documents from OLAF’s investigations, on the basis that disclosure could undermine the objectives of an investigation[29]. The presumption applies to on­going investigations and continues to apply for a “reasonable period” following the conclusion of the OLAF investigation.

25. In this case, the complainant requested public access to a final report drawn up by OLAF following an investigation. This report is, undoubtedly, part of OLAF’s investigation file, and, as such, covered by the general presumption referred to above. The general presumption also applies regardless of the circumstances raised by the complainant in his request for review. The fact that, in the past, OLAF has granted public access to final reports cannot be considered to be decisive, since this was before the Court recognised the existence of a general presumption of non­disclosure of documents from OLAF’s investigations.

26. Regarding the complainant’s argument that the presumption should not apply ”in perpetuity”, the Ombudsman agrees and notes that the General Court has interpreted the temporal scope of this presumption restrictively and has ruled that ”the protection of OLAF’s investigations extends to their follow-up, to the extent that that follow-up takes place within a reasonable period”[30].

27. The Ombudsman’s inspection showed that, in May 2016, OLAF sent the final report to the relevant EU bodies for their consideration. At the time when OLAF denied the complainant access to the final report, that is, in January 2017, it was reasonable to assume that those bodies were still considering the matter. The Ombudsman therefore finds that OLAF was justified in relying on the general presumption of non-disclosure, and that this presumption still applied at the time of OLAF’s decision.

Regarding the existence of an overriding public interest

28. Even if a general presumption applies, the document could nevertheless be disclosed if there were a public interest of sufficient importance to override the general presumption of non-disclosure. According to EU case-law, the principle of transparency, in itself, is not sufficient to substantiate an overriding public interest in disclosing documents. Only particular and specific relevant circumstances can constitute an overriding public interest[31]. Moreover, the public interest in accessing a document pursuant to the principle of transparency does not carry the same weight in the case of a document drawn up in an administrative procedure (such as an investigation) as in the case of a document relating to a procedure in which the EU institution acts in its capacity as legislator[32].

29. The Ombudsman finds that the complainant’s arguments on the principle of transparency and the risk of further public speculation are not substantiated and are general in nature. As such, they cannot be taken to support the existence of an overriding public interest in disclosing the final report in question.

30. The Ombudsman agrees that in many cases there may indeed be a general interest in proactively informing the public about the results of an OLAF investigation. However, this interest has to be balanced against the specific interest to be protected, judged at the time when the challenged decision was taken. In the previous Ombudsman’s case referred to by the complainant, in which the Ombudsman found that releasing general information concerning an investigation would not prejudice that investigation, the documents in question were not from an OLAF investigation[33]. As such, they were not covered by the general presumption.

31. The complainant did not present any argument or evidence to suggest that the corruption allegations were not properly investigated by OLAF. However, having inspected the final report in question, the Ombudsman can confirm that OLAF took various investigative steps, carried out a proper assessment of the information gathered and drew the appropriate conclusions. The fact that the Ombudsman has previously found maladministration by EU bodies in Albania does not, in any way, constitute proof that OLAF may not have properly investigated the allegations concerning the award of the contract in question.

Regarding the partial access

32. EU case-law has established that, if a general presumption of non-disclosure applies, there is no need to examine the possibility of granting partial access. Indeed, that would defeat one of the objects of the general presumption. As such, the Ombudsman finds that OLAF was entitled to refuse to grant partial access to the final report.

Overall assessment

33. The Ombudsman concludes that OLAF was justified in refusing access to the requested document and, thus, that there was no maladministration.

34. That being said, the Ombudsman believes that OLAF could consider now the possibility of providing the complainant with information about the issues concerned. OLAF has already provided the complainant with the information that the final report had been sent to the relevant EU bodies for their consideration. In the Ombudsman’s view, OLAF could further consider the possibility of providing the complainant with more information regarding, at least, the outcome of the investigation and the EU body or bodies to which it sent the final report.

35. In doing so, OLAF should take into account the fact that its investigation has been concluded and that the ‘reasonable period’ provided for by EU case-law for the competent authorities to consider follow-up proceedings may no longer be applicable. As the complainant pointed out, there is a public interest in knowing why OLAF closed an investigation into allegations of misuse of public funds [34].  

36. Finally, the Ombudsman notes that, while OLAF was justified in refusing to disclose the final report at the time when the challenged decision was taken, the justification given by OLAF for applying the exception may no longer be valid. Were the complainant to make a new request for access, OLAF should consider this request in light of the prevailing circumstances. Alternatively, as a matter of good administration, OLAF might itself review the situation.

 

Conclusions

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

There was no maladministration by the European Anti-Fraud Office.

The complainant and OLAF will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 18/07/2018

 

[1] The EU’s public access to documents rules are set out in 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 Commission documents, OJ 2001 L 145, p. 43. 

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

[3] Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08, EU :T:2016:242, paragraph 162.

[4] By making a so-called ‘confirmatory application’ under Regulation 1049/2001.

[5] In its decision taken in January 2017, OLAF relied on the exceptions laid down in Article 4(2) third indent (protection of the purpose of investigations) and Article 4(1) (b) (protection of privacy and the integrity of the individual) of Regulation 1049/2001.

[6] The complainant cited the case Strack v Commission, cited above, paragraphs 15, 17, 20-21, 217-219, and the judgment of the Court of First Instance of 6 July 2006, Franchet and Byk v Commission, joined cases T-393/03 and T-70/04, ECLI:EU:T:2006:190, paragraph 47.

[7] The complainant cited the judgment of the Court of Justice of 27 February 2014, Commission v EnBW Energie Baden-Württemberg AG, C- 365/12 P, ECLI:EU:C:2014:112, paragraphs 103 – 104.

[8] In that regard, the complainant cited the Ombudsman’s Decision in case 2351/2012/JAS on the European Anti-Fraud Office's handling of an access to documents request relating to one of its investigations and the Decision in case 45/2015/PMC concerning the European Anti-Fraud Office's (OLAF) actions following the receipt of a whistleblowing report.

[9] The complainant relied on the judgement in Strack v Commission, cited above, paragraph 152.

[10] Article 4(2) third indent of Regulation 1049/2001. OLAF also stated that disclosing the document would undermine the protection of privacy and integrity of the individual (Article 4(1)(b) of Regulation 1049/2001).

[11] OLAF explained in detail the reasoning leading to the recognition of the said presumption, based on the judgment in Strack v Commission, cited above, paragraphs 150-162.

[12] OLAF referred to the judgment in Strack v Commission, cited above, paragraph 162, and to the judgement of the General Court of 26 May 2016, IMG v Commission, T-110/15, ECU:EU:T:2016:322, paragraph 39.

[13] On 26 May 2016.

[14] That either the allegations were founded, but no action was taken, or that the allegations were not founded, but no action was taken against the person who unduly made them.

[15] In the complainant’s view, there was an added need to demonstrate that OLAF had properly investigated the allegations, as the Ombudsman had, in the past, found serious instances of maladministration in the activities of EU bodies and officials in Albania. The complainant referred to two Ombudsman cases  2450/2008(VL)BEH and case 1005/2011/MMN.

[16] The complainant cited the judgment of the Court of Justice of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, ECLI:EU:C:2008:374, paragraph 59, and the judgment Sweden and others v API and Commission, cited above, paragraphs 152-153.

[17] The complainant cited the judgment of the Civil Service Tribunal of 2 May 2007, Jean-Louis Giraudy v Commission, F-23/05, ECLI:EU:F:2007:75, paragraphs 164-165.

[18] Decision in case 257/2013/OV (concerning access to documents related to the departure of Commissioner Dalli from the Commission). The complainant said that, in that case, the Commission had disclosed the majority of the file of the OLAF investigation to the requester.

[19] Draft Recommendation of the European Ombudsman in complaint 2351/2012/FOR against the European Anti-Fraud Office.

^[20] OLAF referred to the judgment of the Court of Justice of 2 October 2014, Strack v Commission, C‑127/13 P, ECLI:EU:C:2014:2250, paragraphs 129-131 and the judgment in Sweden and others v API and Commission, cited above, paragraph 156. It also quoted the judgment of the General Court of 12 May 2015, Technion v Commission, T-480/11, ECLI:EU:T:2015:272, paragraph 83, where the Court ruled out that the interest in the transparency of audits does not amount to an 'overriding public interest' within the meaning of the final part of Article 4(2) of Regulation No 1049/2001.

[21] According to well established case-law (order of the Court of First Instance of 18 December 2003, Gómez-Reino v Commission, T-215/02, ECLI:EU:T:2003:352, paragraph 65; judgment of the Court of First Instance of 12 September 2007, Nikolaou v Commission, T-259/03, ECLI:EU:T:2007:254, paragraphs 242 and 246; judgment of the Court of First Instance of 8 July 2008, Franchet and Byk v Commission, T-48/05, ECLI:EU:T:2008:257, paragraphs 255 to 258; judgment of the General Court of 21 May 2014, Catinis v Commission, T-447/11, ECLI:EU:T:2014:267, paragraphs 63-64.

[22] This is in line with the principle of professional secrecy laid down in Article 10 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999, OJ L 248, 18.9.2013, p. 1–22.

[23] As set out in Articles 9(1) and 10(5) of Regulation 883/2013 cited above.

[24] Article 4(6) of Regulation 1049/2001 provides for the granting of partial access to requested documents.

[25] To support his view, he referred to Decision of the European Ombudsman closing the inquiry into complaint 248/2016/PB against the European Anti-Fraud Office in relation to non-disclosure of an investigation file.

[26] In support of his argument, the complainant cited the Ombudsman’s Decision in case 363/2011/JAS on the European Anti-Fraud Office's handling of a request for public access to documents. He also relied, by analogy, to the judgment of the Court of Justice of 21 September 2010, Sweden and others v API and Commission, C-514/07 P, C-528/07 P, C-532/07 P, ECLI:EU:C:2010:541, paragraphs 130-134.

[27] In support of its argument, OLAF relied on the judgment in Strack v Commission, cited above, paragraph 168.

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

[29] Judgment in IMG v Commission, cited above, paragraph 37.

[30] Judgment in IMG v Commission, cited above, paragraph 35 (emphasis added).The Court also said, in the same judgement, that ”if the reasonable period for deciding what action to take in the light of information sent by OLAF to the competent authorities, has not yet expired, to grant access to OLAF’s investigation file, even partially, could compromise the effective use of those elements by the national authorities (...). Likewise, it must be noted that OLAF’s investigations, and any further procedures, depend on the ability of informers and witnesses to provide information. The prospect of seeing their information, explanations or assumptions disclosed could lead them to censor the information they provide or to hold back sensitive information, which could undermine the effectiveness of EU anti-fraud policy”.

[31] Judgment in Sweden and others v API and Commission, cited above, paragraph 156.

[32] Judgment in Commission v EnBW Energie Baden-Württemberg AG, cited above, paragraph 91.

[33] The complainant referred to the Ombudsman’s Decision in case 257/2013/OV. That case concerned the Commission’s refusal to disclose letters and notes related to the departure of a former Commissioner from the Commission, that were not part of the OLAF’s investigation file that triggered that departure.

[34] See paragraph 30 of the Draft Recommendation of the European Ombudsman in complaint 2351/2012/FOR against the European Anti-Fraud Office (OLAF) referred to by the complainant.