Background to the complaint

1. The complainant, a former Member of the European Parliament, made several requests for public access to documents[1] concerning a former Commissioner and a financial services provider.

2. The Commission identified six documents as falling within the scope of the complainant’s requests. It granted partial access to five documents, arguing that full disclosure was prevented by the need to protect personal data and commercial interests. The Commission refused access to one document, a meeting agenda, in its entirety. It stated that the meeting agenda originates from a third party who had been consulted and who objected to its disclosure. The Commission argued that (partial) disclosure of the meeting agenda could undermine the protection of personal data and legal advice.

3. The complainant asked the Commission to review its decision to refuse access to the meeting agenda in its entirety (by making a ‘confirmatory application’). When the Commission failed to reply, the complainant turned to the Ombudsman.

The Ombudsman’s proposal for a solution

4. The Ombudsman opened an inquiry and her inquiry team inspected the meeting agenda and the third-party consultations that the Commission had conducted.

5. The inspection revealed that while the meeting agenda contained personal data, it did not contain legal advice.

6. The Ombudsman therefore proposed as a solution[2] that the Commission review its initial position on the complainant’s public access request with a view to granting the widest possible access to the agenda.

7. Following the Ombudsman’s proposal for a solution, the Commission consulted the third party, a law firm, again. The third party objected to the disclosure of the document. In doing so, it argued that disclosure would undermine the protection of legal advice and the client-lawyer relationship protected under national law.

8. The Commission assessed the third party’s arguments and concluded that there are no valid objections to the partial disclosure of the meeting agenda under the EU legislation on public access to documents. It informed the third party of its intention to partially disclose the document. However, to avoid any irreversible action that could result from the disclosure of the document and to preserve the third party’s right to resort to legal remedies, the Commission asked the third party to signal, within ten working days, whether it intended to take legal action against the Commission’s decision.

9. When the third party did not signal an intention to take legal action, the Commission partially disclosed the meeting agenda to the complainant.

10. The complainant did not provide any further comments on the access granted by the Commission.

The Ombudsman's assessment after the proposal for a solution

11. The Ombudsman welcomes the Commission’s positive response to her proposal for a solution and its decision to grant wide partial access to the meeting agenda. As the complainant did not take issue with the limited redactions made by the Commission, the Ombudsman considers that the complaint has been resolved.

12. That said, she is concerned about the time it has taken the Commission to adopt its confirmatory decision. In particular, the Ombudsman notes that the Commission launched the third-party consultation in this case only after the Ombudsman had issued her proposal for a solution. This resulted in a delay of five months, as the complainant had made their confirmatory application at the beginning of May 2023 and the Commission consulted the third party in September and October 2023 only.

13. This case is thus another example of the significant and systemic delays the Commission encounters in dealing with confirmatory applications, which the Ombudsman considered to amount to maladministration[3]. Following a Special Report of the Ombudsman to the European Parliament on the matter, the European Parliament urged the Commission to correct its systematic and significant delays in processing requests for public access to documents.[4]

Conclusion

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

The Commission has accepted the Ombudsman’s proposal for a solution and provided the complainant with wide partial access to the requested document.

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

Emily O'Reilly
European Ombudsman

Strasbourg, 10/06/2024

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents; https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[2] https://www.ombudsman.europa.eu/solution/185319

[3] Recommendation on the time the European Commission takes to deal with requests for public access to documents

(strategic inquiry OI/2/2022/OAM), 4 April 2023, available here:

https://www.ombudsman.europa.eu/en/recommendation/en/167661

[4] See https://www.europarl.europa.eu/doceo/document/TA-9-2024-0172_EN.html