Background to the complaint

1. In February 2022, the United Nations High Commissioner for Refugees (UNHCR) raised serious concerns regarding the increasing number of incidents of violence and serious human rights violations against refugees and migrants at various European borders[1]. Regarding the Greek borders, he stated that “[w]e are alarmed by recurrent and consistent reports coming from Greece’s land and sea borders with Turkey, where UNHCR has recorded almost 540 reported incidents of informal returns by Greece since the beginning of 2020”. This statement echoed the 2020 report from the Council of Europe’s anti-torture Committee that noted consistent and credible allegations of migrants being pushed back across the Evros River border to Turkey[2].

2. In June 2022, the Fundamental Rights Officer (FRO)[3] of the European Border and Coast Guard Agency (Frontex) published its 2021 annual report in which it described concerns observed during monitoring and advisory activities in the South border-region, and in particular at the Greek borders[4]. More specifically, the report identified “[t]he risk of Frontex staff and assets being involved in alleged illegal individual or collective expulsions (and so-called pushbacks) of migrants which are violating their fundamental rights. Such allegations also refer to excessive use of force and other acts of degrading treatment of the migrants by the perpetrators”[5]. As a follow-up to these concerns, the annual report stated that, in April 2022, the FRO issued “an Opinion on the overall fundamental rights situation at the Greek land and sea borders”.

3. The FRO monitors, among other tasks[6], Frontex’s compliance with fundamental rights and reports to its Executive Director on possible violations of fundamental rights reported to him or her by the fundamental rights monitors.

4. The Executive Director of Frontex answers the FRO on how reports about possible violations of fundamental rights have been addressed[7]. One of the possible outcomes of the FRO’s reporting obligation is that the Executive Director can decide, in accordance with Article 46 of Regulation 2019/1896, to withdraw the financing of any activity by Frontex, or suspend or terminate any activity by Frontex, in whole or in part. This is only triggered if the Executive Director considers that there are violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist.

5. In August 2022, the complainant, a journalist, requested public access to the following documents from Frontex:

(i) The opinion of the FRO on the overall fundamental rights situation at the Greek land and sea borders issued in April 2022 (the Opinion); and,

(ii) Other documents related to the border surveillance system at the Greece-Turkey Evros border.

6. In September 2022, Frontex refused public access to the Opinion, invoking an exception under the EU legislation on public access to documents. It argued that disclosure could undermine its decision-making process,[8] and that there was no overriding public interest in the release of the document. It also stated that partial disclosure of the document would create a disproportionate administrative burden, and that what could be disclosed would not have any informative value. Frontex also said that it could not identify any other documents falling within the scope of the complainant’s request.

7. The complainant asked Frontex to review its decision (by making a ‘confirmatory application’), focusing on the refusal to provide access to the Opinion.

8. In November 2022, Frontex confirmed its refusal to grant public access to the Opinion, relying on the need to protect the public interest as regards public security and international relations[9] as well as the protection of personal data[10] and its decision-making process[11].

9. Dissatisfied with this outcome, the complainant turned to the Ombudsman in September 2023.

The inquiry

10. The Ombudsman opened an inquiry into Frontex’s refusal to grant public access to the Opinion.

11. In the course of the inquiry, the Ombudsman received additional views from Frontex[12]. The Ombudsman inquiry team inspected the Opinion and held a meeting with Frontex representatives to discuss the complaint. A report[13] on this meeting was shared with the complainant, who provided comments.

12. Following the meeting, Frontex disclosed parts of the Opinion to the complainant. The complainant also received written justifications[14] from Frontex for withholding the remaining parts of the document. The complainant commented on the partial access granted.

Arguments presented to the Ombudsman

13. The complainant argued that there is an overriding public interest in disclosure, given that the FRO himself had publically expressed concerns regarding the fundamental rights situation in Greece[15].

14. The complainant added that the justifications provided by Frontex regarding the alleged risk of harm to the ongoing decision-making were too generic. They argued that the FRO is independent and does not have decision-making powers, so it was unclear which decision-making process would be seriously undermined by the disclosure of the Opinion. They considered that the non-disclosure appeared to weaken the independence of the FRO. They also stated that Article 4(3) of Regulation 1049/2001 does not refer to the protection of future decision-making and that the application of this exception in those circumstances risks extending the protection indefinitely.

15. Regarding the refusal to grant partial access, the complainant considered that Frontex’s assertion that the administrative burden would be “disproportional in relation to the parts eligible to disclosure” was not specific enough.

16. In its confirmatory decision, Frontex reiterated that disclosing the Opinion would put at risk a decision-making process within the meaning of Article 4(3) of Regulation 1049/2001. It stated that the Opinion was subject to and formed the basis of an ongoing internal decision-making process regarding future activities of the Agency. Frontex also said that the FRO forms part of the administrative and management structure of the Agency[16].

17. To demonstrate the specific and non-hypothetical risk of harm to its decision-making process, Frontex stated that the ongoing discussions taking place within Frontex and under its auspices, which involved numerous stakeholders, required special protection. According to Frontex, disclosing the document would reveal positions of the stakeholders in the decision-making process, which would erode the mutual trust among all participants. Such information would enable third parties to draw preliminary conclusions and, thus, hamper ongoing and future decision-making[17].

18. In addition, Frontex stated that the disclosure of the Opinion would undermine the protection of the public interest as regards public security[18], as the document contains information regarding: (i) the modus operandi of law enforcement officials, (ii) technical equipment deployed, (iii) details of the operational area, (iv) the number and profiles of officers deployed in the area, and (v) detailed information related to reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities.

19. Frontex also stated that the Opinion includes analyses and subjective assessments of the internal situation in a third country and that disclosing this information would undermine the protection of the public interest as regards international relations with this country[19].

20. Frontex added that the Opinion contained personal data that should not be disclosed according to Article 4(1)(b) of Regulation 1049/2001.

21. In response to the arguments raised by the complainant as to the existence of an overriding public interest, Frontex noted that the exceptions to disclosure invoked to protect the public interests as regards public security and international relations cover “the majority of the elements of the document”. It noted that these exceptions cannot be set aside by an overriding public interest. The existence of an overriding public interest would thus have to be examined only for those elements falling under the exception in Article 4(3) of Regulation 1049/2001. Frontex concluded that “the applicability of one exception is sufficient to justify barring access, as in the document at hand, and the further examination of an overriding public interest may therefore be dispensed with”. In any event, Frontex considered that the considerations put forward by the complainant in support of an overriding public interest were too general.

22. Finally, Frontex considered that partial access was not possible due to the number of elements in the document that would have to be redacted. It maintained that the administrative burden of redacting those parts would be particularly heavy, thereby exceeding the limits of what may reasonably be required. It also stated that partial access would be meaningless because those parts of the document that could be disclosed would be of no use to the complainant[20].

23. Following the opening of the inquiry, Frontex submitted additional views to the Ombudsman in November 2023[21], in which it provided more explanations on the decision-making process that it intended to protect at the time of its reply to the confirmatory application. In particular, it explained that the Opinion, together with two other FRO opinions, formed part of the documentation sent to the “Working Group on Article 46” in September 2022[22]. Frontex’s Executive Director had tasked this working group with preparing a detailed assessment of all relevant information aimed at facilitating the Executive Director’s decision on whether or not to trigger Article 46 of Regulation 2019/1896[23].

24. Frontex added that the FRO had an advisory role in this working group and attended its meetings. The working group held its first meeting in October 2022 and the Executive Director took the decision not to withdraw Frontex’s activities or support in Greece in February 2023[24].

25. During the meeting with the Ombudsman inquiry team in February 2024, the Frontex representatives mentioned that, in light of current circumstances and due to the passage of time, Frontex could now grant partial access to the Opinion[25]. Frontex however maintained its position that disclosing any parts of the Opinion at the time of its confirmatory decision in November 2022 would have put at risk the decision-making process described above.

26. In particular, the Frontex representatives explained that disclosing the Opinion while the decision-making process was ongoing would have brought premature public attention to and possible interference with that Opinion. This would have constrained the FRO’s ability to issue a third opinion as they could have been pressured by the media. They considered that this would have endangered their advisory role.

27. Frontex’s representatives also argued during the meeting that Frontex was concerned that unilaterally disclosing the Opinion at that time would have put at risk its cooperation with national authorities, where mutual trust among all participants is essential. They added that at the time, Frontex was in contact with the relevant national authorities to mitigate risks identified by the FRO and implement certain measures to address those risks.

28. Following the meeting, a redacted version of the Opinion was provided to the Ombudsman and was also shared with the complainant. To justify the remaining redactions, Frontex invoked[26]  the exceptions relating to the protection of the public interest as regards public security[27], international relations (with a non-EU country and with international organisations)[28], personal data[29] and an ongoing investigation[30].

29. In their comments on the meeting report and the partial disclosure of the Opinion, the complainant expressed their disappointment with Frontex’s negative perception of the media and the public, presenting them as hostile actors that may interfere or obstruct the Agency’s internal decision-making. They also raised several concerns and objections regarding the justifications provided by Frontex for the refusal to disclose the Opinion in November 2022 and for the partial disclosure now provided in the course of the inquiry.

30. They also questioned Frontex’s position that the Greek authorities and Frontex’s own Management Board were not aware of the content and recommendations of the Opinion. They concluded that Frontex appears to have justified non-disclosure in November 2022 based on a series of hypothetical risks of undue interference from bodies that may not in any event have a clear decision-making role under Article 46 of Regulation 2019/1896.

31. The complainant considered that, in any event, contrary to what Frontex argued, disclosing the Opinion, even partially, would have brought more and useful information into the public domain in 2022 than what was available at the time. At the time, they said, the Greek government was denying it committed any violations against people attempting to cross its borders, but also engaged in smear campaigns against human rights defenders, journalists, and investigators.

32. Regarding the partial access granted in the course of the inquiry, the complainant questioned some of the redactions because they assumed the content includes information that is already in the public domain. The complainant also raised doubts as to why some information had to be redacted to protect border management operations.

The Ombudsman's assessment

33.  In the context of a separate inquiry[31], the Ombudsman suggested to Frontex that it should publicly clarify its reasons for concluding that the threshold has or has not been reached to allow it to terminate, withdraw or suspend its activities under Article 46 of Regulation 2019/1896. Given the relevance of the FRO’s opinion in such instances, it is of particular importance that Frontex aims to be as transparent as possible in this context.

34. The Ombudsman welcomes Frontex’s decision to provide wide public access to the Opinion in the course of her inquiry.

35. In withholding some limited parts of the Opinion, Frontex mostly relied on the need to protect the public interest as regards international relations and public security.

36. The EU institutions enjoy a wide margin of discretion when determining whether the protection of the public interest as regards international relations and public security could be undermined by disclosure of the documents in question[32]. As such, the Ombudsman sought to determine if there was a manifest error in Frontex’s assessment on which it based its decision to apply these exceptions.

37. As regards the information that Frontex redacted in order to protect its international relations with international organisations, Frontex explained to the Ombudsman that the mere reference to these organisations in the context of reporting of human rights violations could endanger their cooperation in the future[33]. Frontex further explained that it proactively communicates about its cooperation with international organisations through publicly available reports but that the redacted information relates to specific locations as well as a precise operational context. Frontex also invoked the protection of international relations with third countries when redacting some further information. Based on the inspection of the document and the additional explanations provided by Frontex during the meeting and in writing, the Ombudsman finds that there was no manifest error in Frontex’s application of the exception.

38. As regards the parts of the Opinion that contain, for example, the number and profiles of officers deployed in the operational area, the technical equipment deployed, the modus operandi of law enforcement officials, and other sensitive operational information, Frontex argued that releasing such information could benefit criminal networks and thus put public security at risk.[34] Based on the inspection of the document and the explanations provided, the Ombudsman finds that there was no manifest error in Frontex’s application of the exception.

39. That said, the Ombudsman notes that Frontex considered some further information in the Opinion to constitute “sensitive operational information” and redacted it. Based on the inspection, however, it is not readily clear to the Ombudsman why Frontex considers this to be operational information. The Ombudsman also notes that the justifications provided by Frontex to redact information related to an ongoing investigation at national level are difficult to reconcile with the (non-redacted) reference, in the same paragraph, to a press article, which reported on the same case. Considering, however, the limited content of the redacted information, the Ombudsman does not consider it useful to pursue this matter further.

40. Finally, Frontex was correct to consider that information that may lead to the identification of individuals constitutes personal data. The Ombudsman notes that the complainant did not contest this, nor did they argue that disclosure of such personal data was necessary for a specific purpose in the public interest.

41. Overall, therefore, the Ombudsman welcomes the wide partial access that Frontex has now granted to the Opinion and considers that no further inquiries are justified in this case.

42. That said, the Ombudsman notes that the reasoning provided by Frontex to refuse access to the Opinion in its entirety at the time of the confirmatory decision was inadequate.

43. First, in relation to the exception concerning the protection of an ongoing decision-making process, targeted external pressure may constitute a legitimate ground for restricting access to documents relating to an ongoing decision-making process only where the reality of such external pressure can be established with certainty[35]. Evidence must also be adduced to show that there was a reasonably foreseeable risk that that process would be substantially affected owing to that external pressure[36]. It is not sufficient to rely on general statements to justify the application of this exception, as Frontex did in its confirmatory decision.

44. Second, if an EU institution or agency relies on an ‘absolute’ exception, such as the protection of the public interest as regards public security, to refuse access to the entirety of a document, Regulation 1049/2001 does not foresee the possibility to grant access in case of an overriding public interest. However, if an institution or agency relies on an absolute exception to justify the non-disclosure of only parts of a document, and applies a relative exception for the remaining elements, the institution must assess whether there is an overriding public interest in disclosure of those remaining parts. The institution must also demonstrate how it conducted this assessment and how it balanced any competing interests, and provide clear explanations to the applicant in this regard. Frontex did not conduct such an assessment in its confirmatory decision.

45. Third, EU institutions and agencies can - in exceptional cases only - refuse to grant partial access if the administrative burden of redacting the requested documents were excessive,^[37] if disclosure of the remaining parts of the documents were meaningless^[38], or if the remaining elements of certain types of documents were unintelligible[39]. The case-law also provides that it is not for the institution or agency to determine what is or is not useful for the applicant^[40] and the burden of proof is on the institution or agency to demonstrate and explain the proportionality of its refusal to grant partial access in those circumstances. Redacting a document of eight pages, as in the present case, cannot be considered an excessive administrative burden.

46. The Ombudsman invites Frontex to take into account these considerations when dealing with public access requests in the future.

Conclusion

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

The Ombudsman welcomes Frontex’s decision to provide wide public access to the Opinion during her inquiry. In view of this, no further inquiries are justified.

The complainant and Frontex will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 02/07/2024

 

[1] https://www.unhcr.org/cy/2022/02/21/news-comment-unhcr-warns-of-increasing-violence-and-human-rights-violations-at-european-borders/ ; See also UNHCR communication from 2020:https://www.unhcr.org/news/briefing-notes/unhcr-calls-greece-investigate-pushbacks-sea-and-land-borders-turkey#:~:text=UNHCR%2C%20the%20UN%20Refugee%20Agency,Greek%20territory%20or%20territorial%20waters.

[2] https://www.coe.int/en/web/cpt/-/council-of-europe-s-anti-torture-committee-calls-on-greece-to-reform-its-immigration-detention-system-and-stop-pushbacks.

[3] Article 99 of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard, OJ L 295, 14.11.2019, p. 1–131, available at: https://eur-lex.europa.eu/eli/reg/2019/1896/oj;

[4] https://www.frontex.europa.eu/media-centre/news/news-release/frontex-fundamental-rights-office-releases-annual-report-Jy2PEC; see FRO Annual Report 2021, p. 14, available at: https://www.frontex.europa.eu/assets/Key_Documents/FRO_reports/The_Fundamental_Rights_Officer_Annual_Report_2021.pdf.

[5] FRO Annual Report 2021, p. 14.

[6] See Article 109 of Regulation 2019/1896.

[7] Article 109(3) of Regulation 2019/1896.

[8] In application of Article 4(3) of 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 L 145, 31.5.2001, p. 43–48, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049.

[9] Pursuant to Article 4(1)(a) first and third indent of Regulation 1049/2001.

[10] Pursuant to Article 4(1)(b) of Regulation 1049/2001.

[11] Pursuant to Article 4(3) of Regulation 1049/2001

[12] Additional views received in November 2023, available at: https://prd.frontex.europa.eu/document/european-ombudsman-case-1885-2023-acb/.

[13] Meeting report, available at: https://www.ombudsman.europa.eu/doc/correspondence/188924.  

[14] In its written justifications received in February 2024.

[15] Confirmatory application referring to an article from The Guardian, dated 31 August 2022, entitled “Greece should face more checks over asylum seeker treatment - EU official”, available at: https://www.theguardian.com/world/2022/aug/31/greece-should-face-more-checks-over-asylum-seeker-treatment-eu-official.

[16] Confirmatory decision dated 3 November 2022, point 3.

[17] Initial reply dated 15 September 2022, referred to in the confirmatory decision.

[18] Within the meaning of Article 4(1)(a) first indent of Regulation 1049/2001.

[19] Article 4(1)(a) third indent of Regulation 1049/2001

[20] By referring to Judgment of 12 July 2001 in case T-204/99, Olli Matilla v Council, paragraph 69.

[21] See additional views, available at https://prd.frontex.europa.eu/document/european-ombudsman-case-1885-2023-acb/.

[22] As explained in the FRO 2022 Annual report, p.13, published in July 2023, available here: https://www.frontex.europa.eu/media-centre/news/news-release/frontex-fundamental-rights-officer-publishes-report-for-2022-QtQzyB.

[23] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard, OJ L 295, 14.11.2019, p. 1–131, available at: https://eur-lex.europa.eu/eli/reg/2019/1896/oj;

[24] These details were published in Frontex public register of documents in May 2023. Available here: https://prd.frontex.europa.eu/document/article-46-working-group/.  

[25] See meeting report, available at: https://www.ombudsman.europa.eu/doc/correspondence/188924.

[26] In its written justifications provided in February 2024.

[27] Article 4(1)(a) first indent of Regulation 1049/2001.

[28] Article 4(1)(a) third indent of Regulation 1049/2001.

[29] Article 4(1)(b) of Regulation 1049/2001.

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

[31] See the Ombudsman’s decision in OI/3/2023/MHZ: https://www.ombudsman.europa.eu/en/decision/en/182665.

[32] Judgment of the Court of Justice of 3 July 2014, Council v. In ’t Veld, C-350/12 P, paragraph 63, https://curia.europa.eu/juris/document/document.jsf?text=&docid=154535&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13541857.

[33] See meeting report available at https://www.ombudsman.europa.eu/doc/correspondence/188924, and in its written justifications provided in February 2024.

[34] Judgment of the General Court of 27 November 2019, T‑31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (Frontex), available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=075BF8425040769C9E041D1AB91ADDBF?text=&docid=221083&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13541241.

[35] Judgment of the General Court of 20 September 2016, Pesticide Action Network Europe (PAN Europe) v European Commission, T-51/15, paragraph 30, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=04D54E7FC38CA6E9E80970B8A7DD2BDA?text=&docid=183542&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=509387.

[36] Judgment in case T‑51/15 cited above, paragraph 30 and case-law cited.

[37] Judgment of the Court of First Instance of 7 February 2002, Kuijer v Council, T-211/00, paragraph 57: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-211/00

[38] Judgment of the General Court of 20 March 2014, Reagens v Commission, T-181/10, paragraphs 161, 162 and 172: https://curia.europa.eu/juris/liste.jsf?num=T-181/10&language=EN.

[39] Judgment of the General Court of 24 April 2024, Sea-Watch eV v Frontex, T‑205/22, paragraph 97: https://curia.europa.eu/juris/liste.jsf?num=T-205/22.

[40] Judgment of the General Court of 6 December 2012, Evropaïki Dynamiki v Commission, T-167/10, paragraph 78: https://curia.europa.eu/juris/liste.jsf?num=T-167/10&language=EN; Judgment of the General Court of 5 December 2018, Falcon Technologies v Commission, T-875/16, paragraph 102: https://curia.europa.eu/juris/liste.jsf?num=T-875/16&language=EN.