Background to the complaint

1. The Mobi-Kids project, which was partially funded by the EU, ran between 2009 and 2016. The aim of the project was to assess the risk of brain cancer from exposure to radiofrequency fields in childhood and adolescence.[1] The project resulted in a study which is publicly available.[2]

2. On 20 November 2020, the complainant requested public access, under the EU legislation on public access to documents (Regulation 1049/2001),[3] to all documents related to the Mobi-Kids project.

3. On 26 February 2021, the Commission identified 29 documents as falling within the scope of the request and granted (wide) partial access to 26 documents. It refused to give access to three documents, relying on the need to protect commercial interests.[4]

4. On 19 March 2021, the complainant asked the Commission to review its decision as regards the three documents the Commission refused to disclose in their entirety (by making a ‘confirmatory application’).

5. On 10 August 2022, the Commission adopted its confirmatory decision:

• It granted partial access to one document, document 7 (‘Fifth periodic report’), redacting some limited parts to protect personal data[5] and commercial interests;
• It refused to disclose the remaining two documents in their entirety - document 21 (‘Deliverable 4.2 Report on radio frequency measurements’) and document 22 (‘Deliverable 4.3 Report on extremely low frequency measurements’) - in order to protect commercial interests, including intellectual property.

6. Dissatisfied with the time taken to deal with the request and the access received, the complainant turned to the Ombudsman on 23 November 2022.

The inquiry

7. The Ombudsman opened an inquiry into the following aspects of the complaint:

1) the Commission’s delay in handling the public access request; and

2) the Commission’s decision to refuse full access to the documents in question (see paragraph 5).

8. When opening the inquiry, the Ombudsman shared her preliminary views with the Commission that the significant delay in processing the confirmatory application amounted to maladministration. The Commission replied to the Ombudsman’s preliminary views, and the complainant commented on the Commission’s reply.

9. The Ombudsman inquiry team inspected the documents at issue and the consultations of the third party from which the documents originated.[6] They also met with the representatives of the Commission. Based on the inspection and the meeting, the Ombudsman shared with the Commission her preliminary findings on the refusal to disclose (in full) the documents at issue. The Commission’s reply was transmitted to the complainant who made further comments.

The Commission’s delay in handling the public access request

Arguments presented

10. The complainant was deeply dissatisfied that it took the Commission almost 17 months to process his confirmatory application. In the complainant’s view, the delay was intended “to delay and effectively hinder access to information which would serve to protect the interest of the public health against the interests of corporate, personal, and state profit”.

11. In its reply to the Ombudsman,[7] the Commission underlined the technical content of the documents which made the handling of the public access request particularly complex. It said that it had to consult the third-party from which the documents originated on multiple occasions. In addition, during the handling of the confirmatory application there was a change of circumstances, namely that the final results of the project were published. The Commission had to accommodate this change, which led to further delays.

12. When providing comments on the Commission’s reply, the complainant said that it was the responsibility of the Commission to comply with the statutory deadlines. In the absence of timely replies from the consulted third-party, the Commission should have taken a decision on its own. He further contended that the change of circumstances referred to by the Commission could not reasonably have led to such a significant delay.

The Ombudsman's assessment

13. It took the Commission almost 17 months to reply to the complainant’s confirmatory application in this case, going far beyond the time limit of 30 working days set out in Regulation 1049/2001.

14. 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 in the context of her own-initiative inquiry into the matter.[8]

15. The inspection showed that the Commission had multiple exchanges with the third-party originator of the documents, spreading over a year. The inspection also showed that the Commission launched the consultations only two months after having received the complainant’s confirmatory application.

16. The Ombudsman appreciates that the Commission strives to obtain the position of the third-party before it takes a decision on disclosure. However, third-party consultations are meant to be finalised within the applicable time limits. In any case, they should not to be initiated only once the time limits have expired or so late that the time limits cannot be respected. The Ombudsman has already asked the Commission, in the context of the above mentioned own-initiative inquiry, to launch external consultations in a timely way.

17. The Ombudsman acknowledges and welcomes that the Commission apologised for the delay in this case.

18. That said, the significant delay in processing the confirmatory application amounts to maladministration. As the Ombudsman has already, in the context of her own-initiative inquiry, made the corresponding recommendation, it is not necessary to do so in this case.

The Commission’s decision to refuse full access to the documents in question

Arguments presented

19. The Commission said in its confirmatory decision that it took into account the position of the coordinator of the Mobi-Kids project, as the third-party from which the documents in question originated. The third-party opposed disclosure of some parts of document 7 (mainly personal data) and of documents 21 and 22 in their entirety.

20. The Commission refused access to the personal data contained in document 7 (the periodic report), arguing that the complainant did not put forward sufficient reasons to establish a necessity for the transfer of that data for a specific purpose in the public interest. It considered that the complainant put forward general considerations only, which were insufficient to establish a necessity to have the personal data transmitted.[9] At the same time, the Commission considered that there are reasons to assume that the data subjects’ legitimate interests would be prejudiced by disclosure, as it would expose them to unsolicited external contacts.

21. Furthermore, as regards limited parts of document 7, the Commission considered that “details on the tasks, the planned and reported efforts for the project of the parties involved” is commercially sensitive information that, if disclosed, could reveal the internal organisation and strategies of the entities concerned. Even if the study was performed in the past, the information remains relevant for the internal organisation and business strategy of the entities.

22. As for documents 21 and 22 (the two deliverables), the Commission said that these contain preliminary findings of the project, which, as indicated by the coordinator of the project, have not been scientifically validated and are outdated. Making public such data could be used for “a wrong purpose” and could lead to misleading conclusions. It could further allow “the potential exploitation” of the final results, which have been thoroughly re-analysed and peer-reviewed. The Commission also argued that disclosure of the preliminary findings might pose reputational risks and cause commercial harm to the entities involved in the project, as non-validated results might be used by scientific competitors. All this could affect the credibility of the entire project, hence undermining the commercial interests of the parties involved.

23. The Commission added that the two documents contain specific know-how (technical details, information on the conduct of the study in all countries, data, and methodologies), the release of which would undermine the intellectual property rights and reveal the expertise of the entities involved in the project, thereby harming their commercial interests.

24. Finally, the Commission could not identify an overriding public interest in disclosure and considered the complainant’s arguments in that regard too general in nature.[10] It added that there have been several publications of different aspects of the project and of the final results.

25. In the meeting with the Ombudsman inquiry team,[11] the Commission representatives repeated the arguments presented in the confirmatory decision. They clarified that the Commission was not aware whether the content of the two deliverables, namely documents 21 and 22, had been published in the meantime or not. However, the final results of the project were published.

26. In the complaint to the Ombudsman, the complainant emphasised that the requested documents concern a research project into children’s health issues. The results of the research can affect both the financial interests of telecommunication industries and public health.

27. As regards the refusal to provide access to the personal data, the complainant took the view that there is a public interest in knowing which individuals worked on the project, “particularly in the gathering, analyses and description of objective data”. The complainant sought to verify the independence of the participants, given the competing interests at stake in the research (“public health contra financial gains”) and pointed out that the Commission should be aware of such potential conflicts of interest. In addition, the complainant considered that the Commission did not provide adequate reasons to demonstrate that the legitimate interests of the data subjects would be affected by disclosure.

28. As regards the protection of commercial interests, the complainant argued that:

• the disclosure of preliminary results should not pose risks to the commercial interests of any third parties;
• it should not be for the Commission to decide what is a “wrong purpose” for using the data;
• the Commission failed to properly balance the relevant interests at stake, that is, the economic interests of telecommunication companies in portraying their products as safe and the public interest in public health, particularly children’s health;
• not only the final results are of interest to the scientific community and to the public, but the full data obtained from the project, including its preliminary findings;
• the Commission’s argument that final results can be published, while preliminary ones cannot because these might be used by scientific competitors, is flawed;
• the know-how of the researchers’ methods should not be commercially sensitive since the methods employed are normally scrutinised as part of the scientific process and review.

29. The complainant considered that the interest in public health outweighed any commercial interests as put forward in this case.

The Ombudsman’s preliminary findings

30. The Ombudsman took the view[12] that the Commission did not adequately explain how, in the case at hand, disclosure of the documents would undermine the interests it sought to protect.

31. As regards the protection of personal data (that is, the names and functions of researchers involved in the project), the Ombudsman pointed out that certain personal data concerning the ‘beneficiaries’[13] of the project was already in the public domain.

32. As regards the protection of commercial interests, the Ombudsman noted that the documents date from 2011 (documents 21 and 22) and 2016 (document 7). The Mobi-Kids project ended in 2016. According to EU case-law, information which is more than five years old is presumed to be no longer commercially sensitive.[14] Furthermore, the Commission failed to show how releasing preliminary results (documents 21 and 22) would specifically and actually harm the commercial interests of the parties involved in the project.[15]

33. In view of this, the Ombudsman asked the Commission to reconsider its position on the public access request, with a view to disclosing the documents in question to the widest extent possible.

34. In reply,[16] the Commission re-assessed the application of the exceptions, taking into account the Ombudsman’s preliminary findings, the passage of time and the risk to the commercial interests of third parties in the current context. The Commission also consulted the third-party again, which agreed to further disclosure, with the exception of certain personal data and the brand names and models of the mobile phones used for the study.

35. The Commission thus agreed to grant wider access to the three documents. The only parts still withheld are:

• personal data of individuals who were not the principal investigators of the Mobi-Kids project and staff members of the Commission, who did not hold managerial positions;
• the brand names and models of the mobile phones used for the study, as “it cannot be excluded that the reputation of the manufacturers would be undermined by the disclosure of this information, considering the subject matter of the study in question”.

36. The complainant expressed his dissatisfaction with the remaining redactions. In his view, the identity of all contributors to the project should have been disclosed, as this is relevant in relation “to issues of the independence, reliability, and veracity of a study.” As regards the redaction of mobile phone brands and models, he contended that the Commission did not adequately show how the commercial interests of the manufacturers could be undermined by disclosure. The argument that the reputation of manufacturers of mobile phones, which were in use more than thirteen years ago, needs to be protected does not seem convincing in his view.

The Ombudsman's assessment

37. The Ombudsman welcomes the Commission’s decision to grant wide partial access to the documents at issue following her intervention.

38. The Commission maintained limited redactions of information, whose disclosure would, in its view, undermine the protection of personal data and of commercial interests.

Redactions related to the protection of personal data

39. The Ombudsman notes that there are two categories of participants to the project: the participants to the Mobi-Kids grant agreement (‘beneficiaries’) and ‘other researchers’, which also contributed to the project but are not beneficiaries.

40. Following the Ombudsman’s intervention, the Commission disclosed all data regarding the beneficiaries, including the names of the principal investigators. As regards the other participating researchers, their names are still redacted. However, their respective functions and employers have now been disclosed.

41. The Ombudsman welcomes the Commission’s decision to disclose all the data concerning the beneficiaries, as this is publicly available elsewhere,^[17] as well as the function and employer of the other researchers.

42. The redacted names of the other researchers clearly constitute personal data.

43. Regulation 1049/2001 and the EU legislation on data protection[18] set a very high legal threshold for granting access to personal data. Personal data can only be disclosed if the person seeking access to it can demonstrate a necessity for a specific purpose in the public interest that is served by the release of the personal data in question.[19] Even then, the personal data must be withheld if its disclosure is disproportionate, taking into account the legitimate interests of the person concerned.

44. The necessity put forward by the complainant is the need to verify whether the contributors were independent, without, however, putting forward any specific argument raising doubts as to their independence. It is therefore not clear on what basis the complainant suspects that there could have been a lack of independence or a potential conflict of interest.

45. As regards the names of EU staff members that have been redacted from the documents, the Ombudsman notes that these are the project officers in charge of monitoring the project. The complainant does not provide any arguments demonstrating a specific need in the public interest to have the names disclosed.

46. The Ombudsman therefore considers the Commission’s decision not to disclose the names of other researchers and of EU staff members to be reasonable.

Redactions related to the protection of commercial interests

47. The Commission disclosed the two deliverables almost in their entirety, redacting only the brand names and models of the phones used in the study. In doing so, it referred to the objection of the third party, that it consulted again, and to the possibility that disclosing this information could harm the commercial interests of the manufacturers, in view of the subject of the Mobi-Kids project.

48. The Commission did not provide any further explanations as to how the commercial interests of the manufacturers could still be undermined by disclosure, notably since the models in question are more than ten years old.[20]

49. While the Ombudsman understands that commercial interests of the manufacturers are at stake, she considers that the Commission has not adequately substantiated the risk of harm to these interests if the withheld information were to be disclosed.

50. That said, the Commission has now provided wide partial access to the two deliverables, which had not been disclosed previously. While the Commission could have better reasoned the redaction of brand names and models of the phones used in the study, the Ombudsman considers that further inquiries are not justified on this outstanding element.

Conclusions

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

The significant delay in processing the complainant’s confirmatory application constituted maladministration.

The Ombudsman welcomes the Commission’s decision to grant wide partial access to the documents at issue following her intervention. While the Commission could have better explained the limited remaining redactions made to protect commercial interests, the Ombudsman considers that further inquiries are not justified on this outstanding element.

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

 

Emily O'Reilly
European Ombudsman

Strasbourg, 27/06/2024

 

[1] More information about the Mobi-Kids project is available at: https://cordis.europa.eu/project/id/226873/reporting.

[2] Wireless phone use in childhood and adolescence and neuroepithelial brain tumours: Results from the international Mobi-Kids study, available at: https://www.sciencedirect.com/science/article/pii/S0160412021006942?via%3Dihub.

[3] 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.

[4] In accordance with Article 4(2), first indent of Regulation 1049/2001.

[5] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[6] Conducted in accordance with Article 4(4) of Regulation 1049/2001.

[7] The Ombudsman’s letter is available at: https://www.ombudsman.europa.eu/en/opening-summary/en/163574; the Commission’s reply is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/188323.

[8] Case OI/2/2022/OAM on the time taken by the European Commission to deal with requests for public access to documents, available at: https://www.ombudsman.europa.eu/en/case/en/60766.

[9] The Commission referred to Judgment of the General Court of 25 September 2018, Psara et al. v European Parliament, T-639/15 to T-666/15 and T-94/16, , paragraphs 73-76: https://curia.europa.eu/juris/liste.jsf?num=T-639/15&language=en.

[10] The Commission referred to various judgments, including the Judgment of the Court of Justice of 16 July 2015, ClientEarth v Commission, C-612/13 P, paragraph 93: https://curia.europa.eu/juris/liste.jsf?num=C-612/13&language=EN.

[11] The meeting report is available at: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/176841.

[12] The Ombudsman’s preliminary findings are available at: https://www.ombudsman.europa.eu/en/doc/preliminary-finding/en/176840.

[13] The beneficiaries are the participants to the EU funded Mobi-Kids project.

[14] Judgment of the General Court of 23 September 2020, Basaglia v European Commission, Case T-727/19: https://curia.europa.eu/juris/liste.jsf?num=T-727/19&language=EN.  

[15] Judgment of the General Court of 9 September 2014, MasterCard and Others v Commission, T-516/11, paragraphs 85-90: https://curia.europa.eu/juris/liste.jsf?num=T-516/11&language=EN.

[16] The Commission’s reply is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/188322.

[17] Available at: https://cordis.europa.eu/docs/results/226/226873/final1-list-of-the-participants.pdf.

[18] Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[19] See the Judgement of the General Court of 25 September 2018 in cases T-639/15 to T-666/15 and T-94/16, Psara et al v Parliament,: https://curia.europa.eu/juris/liste.jsf?num=T-639/15&language=en and the Judgment of the General Court of 8 May 2024 in case T-375/22, Izuzquiza and Others v Parliament https://curia.europa.eu/juris/liste.jsf?num=T-375/22.

[20] See in that regard the Judgment of the General Court of 22 May 2012, EnBW Energie Baden-Württemberg v Commission, T-344/08, paras 139-142: https://curia.europa.eu/juris/liste.jsf?num=T-344/08&language=EN.