Background to the complaint

1. For several years, there have been concerns about the conditions in one of the migrant reception centres in Cyprus.[1]

2. In August 2023, the complainant, a researcher, requested[2] public access to any document “pertaining to the conditions in the Pournara and Kofinou migrant reception centres” in Cyprus drawn up or received since 1 January 2022.

3. FRA identified 17 documents, including two reports originating from other EU agencies, namely the European Union Agency for Asylum (EUAA) and the European Border and Coast Guard Agency (Frontex). FRA provided the complainant with full access to eight documents and access to one document in part, redacting personal data only. As regards the remaining eight documents, FRA refused access, relying on the need to protect its own and the other two agencies’ decision-making[3]. Regarding the report originating from Frontex, FRA relied on the need to protect the public interest as regards public security and international relations.[4]

4. The complainant challenged the non-disclosure of these documents (by making a ‘confirmatory application’) in October 2023. However, FRA maintained its refusal to give public access to these documents.

5. Dissatisfied with this outcome, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into FRA’s refusal under Regulation 1049/2001 to give public access to the eight documents at issue in the complainant’s confirmatory request, consisting of:

• Frontex’s Fundamental Rights Officer Report to the Management Board for the period January to May 2022,
• a draft version of the EUAA’s Work Programme 2024[5],
• two FRA ‘mission’ reports on visits by FRA staff and its director to Cyprus in January 2023 and May 2023 respectively, and two drafts of one of these reports, and
• two draft chapters of FRA’s Fundamental Rights Report 2023[6].

7. In the course of the inquiry, the Ombudsman received FRA’s reply on the complaint. In addition, the Ombudsman inquiry team inspected the documents at issue as well as the comments from the EUAA and Frontex, which FRA had consulted on the access request.  

Arguments presented to the Ombudsman

8. The complainant contended that FRA had failed to apply the exceptions provided for under Regulation 1049/2001 restrictively, as required, and argued that the exception for the protection of international relations could not be invoked with respect to an EU Member State. The complainant also considered that there was an overriding public interest in disclosure, namely to enable the public to scrutinize the conduct of EU bodes involved in migration and border management in Cyprus, which was necessary due to “serious, credible, and well-documented concerns” about inadequate, inhumane and degrading conditions in reception facilities in Cyprus.

9. In its reply to the complaint, FRA acknowledged that the two reports authored by the EUAA and Frontex fall largely outside the scope of the complainant’s access request. As regards the Frontex report, FRA also signalled that it had consulted Frontex again and that it would be ready to disclose a significant part of the relevant information. Concerning the remaining part, FRA maintained that disclosure would undermine public security. It no longer relied on the need to protect international relations.

10. Concerning the draft of the EUAA’s Work Programme 2024, FRA considered that, because the final report had been made public in the meantime, there was no longer a need to disclose what amounted to very limited information that was relevant to the complainant’s access request.

11. As regards the documents originating from FRA, namely the (draft) mission reports and the two draft chapters of its Fundamental Rights Report 2023, FRA reiterated its previous position that these documents could not be disclosed as they were meant for internal use only and disclosure would “inappropriately divulge [its] deliberative process”, which would undermine its decision-making. In addition, in light of the information on the fundamental rights situation of migrants in Cyprus that it had published[7], FRA considered that there was no overriding public interest in disclosure.

The Ombudsman's proposal for a solution

12. Based on the inspection of the documents at issue, the Ombudsman considered that FRA should give wide public access to those parts of the documents that fall within the scope of the complainant’s access request.

13. Specifically, as regards the Frontex report, the Ombudsman noted that it is not limited to Frontex’s activities in Cyprus. She thus agreed that it falls largely outside the scope of the complainant’s access request. The Ombudsman also welcomed FRA’s readiness to disclose the majority of the remaining part of this document, which she considered appropriate, given that the application of the need to protect public security to the information at issue did not appear manifestly unfounded and that the relevant exception cannot be set aside by an overriding public interest.

14. Concerning the draft document authored by the EUAA, the Ombudsman agreed that it falls largely outside the scope of the complainant’s access request. However, the Ombudsman found that it was not reasonable to consider that disclosure would seriously undermine the EUAA’s decision-making. Nor that the complainant’s access request had been satisfied by the publication of the final version of that document by the EUAA.

15. As regards the documents originating from FRA itself, the Ombudsman noted that two documents were draft chapters of FRA’s Fundamental Rights Report 2023 that had been disclosed to the complainant in full and that is also publicly available on the FRA website. In addition, both draft chapters appeared to contain only very limited information on the reception facilities at issue. Moreover, only some minor editorial changes had been made to this text in the final version of the report (including in relation to the footnotes indicating the sources of the information used). In light of all this, it was not clear how disclosure of this information could seriously undermine FRA’s decision-making.

16. Furthermore, while FRA had already disclosed its final report, the Ombudsman did not agree that this sufficiently addressed the complainant’s access request. Rather, she considered that, if the limited information at issue were to be withheld, there would be a risk that FRA might be perceived as concealing information, which was not the case.

17. Finally, the Ombudsman considered that also the (draft) mission reports did not fall within the scope of the complainant’s access request in their entirety. Concerning those parts that could be considered to be covered by the access request, the Ombudsman noted that these mainly consist of factual information (rather than opinions), some of which was rather general in nature, and that the information in the draft versions of one of the reports largely overlapped with the information in the final version. In addition, some of the relevant information was made public elsewhere, including by FRA itself.

18. In any case, the Ombudsman found that the fact that the reports were intended for internal use was not in itself a reason for non-disclosure under Regulation 1049/2001. She considered that the exception protecting decision-making could be reasonably invoked only to the extent that the withheld information was obtained from third parties and that disclosure would likely prevent these third parties from sharing similar information going forward.

19. Based on all this, the Ombudsman proposed[8], as a solution, that FRA should re-consider its position on the complainant’s request for public access, with a view to granting significantly increased access to the documents at issue.

FRA’s reply and the Ombudsman's assessment after the proposal for a solution

20. In reply, FRA agreed to give the complainant significantly wider access to the documents at issue, redacting only personal data, and limited information in the Frontex report, so as to protect public security.

21. The complainant was satisfied with this outcome and did not provide any further comments.

22. The Ombudsman welcomed FRA’s positive response to her proposal for a solution and the wide access granted, which she considers has resolved the complaint. The case is therefore closed.

Conclusion

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

The European Union Agency for Fundamental Rights has accepted the Ombudsman’s proposal for a solution by granting the complainant wide public access to the documents at issue.

The complainant and FRA will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 08/05/2024

 

[1] See, for example, June 2023 report by the UN Refugee Agency (UNHCR): https://www.unhcr.org/cy/wp-content/uploads/sites/41/2023/06/UNHCR-Cyprus_Reception-Fact-Sheet_2023_June_ENG.pdf.

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[3] In accordance with Article 4(3), second subparagraph of Regulation 1049/2001.

[4] In accordance with Article 4(1)(a), first and third indent, of Regulation 1049/2001.

[5] The final version of this document is available at: https://euaa.europa.eu/publications/multi-annual-programming-2024-2026-work-programme-2024.

[6] The final version of this report is available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2023-fundamental-rights-report-2023_en_1.pdf.

[7] For example, in its Final Bulleting in Asylum and Migration 2023: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2023-asylum-migration-progress-challenges_en.pdf, or in its Fundamental Rights Report 2023 (see footnote 6 above).

[8] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/185676.