Background to the complaint

1. When people who seek asylum arrive in the EU, Member States are required to provide them with ‘reception conditions’. These include food, clothing, accommodation, as well as access to healthcare and to education for minors. In line with the 1951 Geneva Convention,[1] reception conditions play a crucial role in ensuring that refugees have access to dignified living conditions.

2. In recent years, the deteriorating reception conditions in migration facilities located in the Greek Eastern Aegean islands have been criticised.[2] The European Union Agency for Asylum (EUAA) is present in these facilities, where it helps Greek authorities in providing reception conditions in line with EU asylum legislation.

3. In October 2023, the complainant, a researcher, requested public access[3] to “all documents (including but not limited to reports, mission reports, notes from field visits, assessments, meeting minutes, email exchanges with Greek authorities and/or other EU institutions, including attachments) pertaining to and/or mentioning reception conditions in camps and/or detention centres on the Greek islands of Lesvos, Samos, Chios, Kos and Leros”, for the period between 1 May 2023 to 9 October 2023.

4. The EUAA identified 133 documents as falling within the scope of the public access request. Of these 133 documents, one was already public,[4] two were exchanges with the European Commission, and the remaining 130 documents were EUAA documents that comprised reports from field personnel and email exchanges.

5. The EUAA refused access to all documents except the document that was already public. In refusing access to the other 132 documents, the EUAA relied on the need to protect the public interest as regards public security,[5] personal data,[6] and its ongoing and future decision-making.[7]

6. The complainant challenged the refused access to these documents (by making a ‘confirmatory application’) in January 2024, asking the EUAA to provide (partial) access to the documents with the exception of personal data. He also asked the EUAA to provide him with a list of the documents at issue.

7. Although the EUAA provided the complainant with a list of documents (detailing also some of the shortcomings in reception conditions identified), the Agency maintained its decision to refuse access.

8. Dissatisfied with this outcome, the complainant turned to the Ombudsman in April 2024.

The inquiry

9. The Ombudsman opened an inquiry into how the EUAA had dealt with the complainant’s request for public access, including the EUAA’s refusal to disclose the documents at issue based on the need to protect public security and its decision-making.

10. In the course of the inquiry, the Ombudsman inquiry team inspected the 132 documents at issue, which consisted of:

i. 37 documents offering a general overview of reception conditions (quarterly country reports and reports from Field Support Officers);

ii. 91 activity reports from individual staff members operating in headquarters and in the Eastern Aegean facilities;

iii. Two internal EUAA email exchanges;

iv. Two email exchanges between the EUAA and the Commission.

11. The Ombudsman inquiry team also inspected the comments from the third parties, which the EUAA had consulted on the access request and which had objected to disclosure. Additionally, in the course of the inquiry, the Ombudsman received the EUAA’s reply on the complaint.

Arguments presented to the Ombudsman

12. The complainant argued that the EUAA had failed to demonstrate the risks that disclosure would pose to the protected interests invoked. In his view, considering that the subject of his access request - reception conditions - did not necessarily relate to sensitive operational data, the EUAA may have committed a manifest error in applying the exception on public security to all documents in their entirety. The complainant further argued that, as regards the protection of decision-making, there was an overriding public interest in disclosure, namely the need to ensure transparency about reception conditions in EU-funded migration facilities in light of the concerns raised over potential rights violations. Finally, the complainant contended that the information about reception conditions detailed in the list of documents provided by the EUAA at the confirmatory stage showed that partial access should be possible. 

13. The EUAA argued that it was not possible to give public access to the documents at issue because they contained sensitive operational information inextricably linked with the information on reception conditions. Based on this, the EUAA took the view that the exception on public security should be applied to the documents in their entirety. Moreover, as regards the protection of its decision-making, the EUAA considered that because these were internal documents containing preliminary information and views, disclosing them could result in civil servants’ self-censorship in the future. This would impair the Agency’s ability to make informed decisions and open it to undue external influence. The EUAA did not identify an overriding public interest in disclosure.

14. As regards partial access, the EUAA argued that even in the theoretical scenario where limited access could be granted, the documents would be rendered meaningless due to the amount of redactions needed. In its reply to the complaint, the EUAA added that the (dis)proportionality of the administrative burden created by partial disclosure in such cases should be assessed in light of the comparatively limited resources that EU agencies have. It emphasised that it had nonetheless provided the complainant with meaningful information through the detailed list of documents at confirmatory stage.

The Ombudsman's proposal for a solution

15. Based on the inspection of the documents, the Ombudsman was not convinced that the two exceptions invoked covered the entirety of the documents at issue. Thus, she considered that the EUAA should give wide public access to those documents.

16. More precisely, as regards the protection of public security, the Ombudsman underlined that the fact that a document relates to migration and contains information from staff working with national authorities as such does not suffice to demonstrate a specific and actual risk to public security, as otherwise this would imply that most documents about field operations could not be disclosed.

17. In the case at hand, the Ombudsman considered that the majority of documents contained information that did not appear to be sensitive. Part of this information was general and/or succinct in nature, while other elements were already publicly known. Only some limited sections of a minority of documents (nine documents) contained details about strategic planning activities, and even in those cases, it seemed possible to disentangle sensitive operational insights from information about reception conditions.

18. As regards the protection of decision-making, the Ombudsman noted that although the EUAA country operation in Greece is ongoing, the fact that a decision-making process is ongoing or that documents are of a preliminary nature is not sufficient to refuse disclosure. It remained unclear how disclosure would substantially undermine the Agency’s decision-making process. In the Ombudsman’s view, only a small fraction of the contents of a limited number of documents could, if fully disclosed, undermine the EUAA’s relationship with the Greek authorities and affect the deployed staff’s frank feedback. This information was mostly related to management issues. At the same time, an important part of the information contained in the remaining sections seemed general in nature, publicly known to some extent, and/or outdated.

19. Finally, the Ombudsman recalled that in a previous inquiry on the facilities at issue in this complaint, she had emphasised the importance of respect for fundamental rights and called for greater transparency around these facilities. In light of this, she urged the EUAA to thoroughly balance the protection of its decision-making process against this public interest when deciding on potential disclosure.

20. Based on all this, the Ombudsman proposed, as a solution,[8]  that the EUAA should reconsider its position on this public access request, with a view to giving significantly increased public access to the documents at issue.

21. In its reply, the EUAA agreed to give the complainant very wide access to 130 out of the 132 documents, redacting only personal data and limited information to protect the public interest as regards public security as well as its decision-making process.

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

The Ombudsman’s assessment after the proposal for a solution

23. The Ombudsman welcomes the EUAA’s positive response to her proposal for a solution and the wide access granted, which she considers has resolved the complaint. The Ombudsman appreciates the EUAA’s constructive engagement throughout this inquiry.

24. In view of this, the Ombudsman closes the case, with two observations. First, the Ombudsman acknowledges the level of detail in the list of documents provided by the EUAA to the complainant at confirmatory stage. Her longstanding view is that providing lists of identified documents is an essential part of replying to access to documents requests[9] and she encourages the EUAA to do so at the initial stage in the future.

25. Second, the Ombudsman commends the EUAA’s identification of documents, in particular when it comes to email exchanges. As the Ombudsman has repeatedly noted,[10] it is clear from Regulation 1049/2001 that the decisive element of a document is not its medium, nor its registration in the institution’s document management system.[11] Rather, 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.[12] Therefore, the EUAA’s practice in this case was in line with Regulation 1049/2001 and should be continued in future.

Conclusion

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

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

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

Emily O'Reilly
European Ombudsman

Strasbourg, 05/11/2024

 

[1] Convention relating to the Status of Refugees, available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees

[2] See for instance the 2021 report of the Greek National Commission for Human Rights, available at: https://ennhri.org/wp-content/uploads/2021/07/Greek-National-Report.pdf

[3] 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

[4] Ombudsman decision in case OI/3/2022/MHZ, available at: https://www.ombudsman.europa.eu/en/decision/en/170792

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

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

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

[8] Solution proposal available at: https://www.ombudsman.europa.eu/solution/195012

[9] See case 1129/2023/OAM, decision available at: https://www.ombudsman.europa.eu/en/decision/en/194082

[10] Case 1316/2021/MIG, available at: https://www.ombudsman.europa.eu/en/recommendation/en/151678

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

[12] Case 211/2022/TM, available at: https://www.ombudsman.europa.eu/en/decision/en/157768