Background to the complaint

1. In March 2022, the complainant, a journalist who writes about the environment, sought public access[1] to three emails from members of the personal office (cabinet) of the Commissioner for International Partnerships concerning the draft EU soil, forest and climate adaptation strategies.[2] The complainant identified the emails specifically by date, title and sender. The complainant sought public access to the emails to prepare a story on lobbying EU commissioners on environmental matters. In the complainant’s view, the emails could shed light on whether the views expressed therein were in line with those of interest representatives.

2. In May 2022, the Commission replied that it considered the three specific e-mails not to fall within the scope of the EU legislation on public access to documents (Regulation 1049/2001). This is because, in the Commission’s view, the e-mails did not meet the criteria for recording in its internal document management system.

3. The complainant asked the Commission to review its position that the emails did not constitute ‘documents’ within the meaning of Regulation 1049/2001 (by making a ‘confirmatory application’).

4. Having received no reply, the complainant turned to the Ombudsman in July 2022.

The inquiry

5. The Ombudsman opened an inquiry into the Commission’s failure to reply to the confirmatory application submitted by the complainant. The Commission replied to the confirmatory application in August 2022. However, since the complainant remained dissatisfied with the outcome, the Ombudsman continued the inquiry.

6. In the course of the inquiry, the Ombudsman inquiry team held a meeting with Commission representatives to discuss how the Commission handled the complainant’s request.[3] Subsequently, the Ombudsman inspected the emails and asked the Commission to provide a reply on the case.[4] The complainant provided comments on the meeting report and, subsequently, on the Commission’s reply.

The Commission’s initial failure to identify and assess the emails under Regulation 1049/2001

Arguments presented to the Ombudsman

7. The complainant argued, in essence, that emails are ‘documents’ within the meaning of Regulation 1049/2001. The complainant considered that Regulation 1049/2001 does not provide for an exemption to public access when documents are not registered.

8. The Commission argued that only documents fulfilling its criteria for recording documents in its internal document management system are ‘documents’ within the meaning of Regulation 1049/2001.[5] In this case, the Commission considered that the emails contained informal exchanges within the Commission prior to the adoption of policy documents by the College of Commissioners. Only the document, adopted according to the relevant procedure in its final version, is registered. Thus, the Commission did not identify the emails requested by the complainant as falling within the scope of the access request.

The Ombudsman's assessment

9. Regulation 1049/2001 applies to all documents held by an EU institution, that is, “documents drawn up or received by it and in its possession, in all areas of activity of the European Union.”[6] According to that Regulation, a document is “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.”[7]

10. The wording of Regulation 1049/2001 makes it clear that, for a document to fall under its scope, it is irrelevant whether it has been registered in the institution’s document management system. What matters is the document’s content and whether or not it relates to the “policies, activities and decisions” for which the institution is responsible.

11. As the Ombudsman has stated on various occasions,[8] whether the document is subsequently registered in the document management system of the institution concerned is, as a matter of law, not relevant for the purpose of the definition of a ‘document’ under the Regulation.

12. The Ombudsman inquiry team reviewed the emails, which pertain to “policies, activities and decisions” for which the Commission is responsible and which are clearly held by the Commission. Thus, they are ‘documents’ within the meaning of Regulation 1049/2001.

13. Therefore, the Commission should have, in line with Regulation 1049/2001, identified and assessed whether public access to the emails could be granted. The Commission’s initial failure to do so constituted maladministration. As the Ombudsman pointed out in the course of this inquiry, the Commission risks being seen as particularly citizen unfriendly when it holds documents but refuses to examine them with a view to disclosure, simply on the ground that it has decided not to register the documents

14. Following the Ombudsman’s intervention, the Commission agreed to assess the emails under Regulation 1049/2001. Thus, further inquiries into the matter are not justified.

15. Given the considerable time the Commission took to handle the complainant’s request for public access appropriately, the Ombudsman urges the Commission to finalise its assessment in light of the requirement to handle applications ‘promptly’ provided by Regulation 1049/2001.

Conclusion

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

As the emails requested by the complainant were ‘documents’ within the meaning of Regulation 1049/2001, the Commission should have identified and assessed whether public access could be granted. The Commission’s initial failure to do so constituted maladministration.

As the Commission agreed to assess the documents under Regulation 1049/2001, no further inquiries are justified into the issue.

Given the considerable time the Commission took to handle the complainant’s request for public access appropriately, the Ombudsman urges the Commission to finalise its assessment in light of the requirement to handle applications ‘promptly’ provided under Regulation 1049/2001. 

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 18/09/2023

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission

documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

[2]

[3] The report on the meeting is available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/168089

[4] The Ombudsman’s letter to the Commission is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/167813. 

The Commission’s reply is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/174016.

[5] The Commission referred to Decision (EU) 2021/2121 of 6 July 2020 on records management and archives, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D2121 and its Guidelines on documents registration.

[6] Article 2(3) of Regulation 1049/2001.

[7] Article 3(a) of Regulation 1049/2001.

[8] See for example, case 211/2022/TM: https://www.ombudsman.europa.eu/en/case/en/60980;

case 1316/2021/MIG: https://www.ombudsman.europa.eu/en/decision/en/158295 and case 1050/2018/DL: https://www.ombudsman.europa.eu/en/case/en/52666.