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, both civil society and international organisations have expressed their concerns about reception conditions in migration management facilities in Cyprus. In 2024, the anti-torture Committee of the Council of Europe described the living conditions in one of these facilities as “an affront to human dignity [that] may amount to inhuman and degrading treatment”.[2]

3. The European Union Agency for Asylum (EUAA) is present in Cyprus, where it provides support to national authorities to improve reception conditions in line with EU asylum legislation.

4. In September 2023, the complainant, a journalist, requested public access[3] to documents held by the EUAA in relation to migration management and reception centres in Cyprus. The request covered “all meeting minutes and/or any other documents held by the EUAA and all correspondence (including, but not limited to, reports, letters, e-mails, minutes of meetings, and any attachments) exchanged between EUAA representatives and [the European Commission’s] DG Migration and Home Affairs (HOME) representatives (including Cabinet officials) regarding, related to, or mentioning First Reception and Reception Conditions at existing and forthcoming migration reception centres on Cyprus - including Limnes, Pournara First Reception Centre, and Kofinou Reception Centre”. The request covered the period between 1 February 2023 and 12 September 2023.

5. In January 2024, as the EUAA had not replied within the timeframe set by Regulation 1049/2001, the complainant asked the EUAA to review the implicit refused access (by making a ‘confirmatory application’).

6. In its reply, the EUAA identified 76 documents as falling within the scope of the public access request, the vast majority of which were email exchanges involving the European Commission, as well as their attachments. The EUAA refused access to all but two documents, to which it provided wide partial access, redacting only personal data. In refusing access to the other 74 documents, the EUAA relied on the need to protect the public interest as regards public security,[4] personal data,[5] and its decision-making (both ongoing and finalised).[6]

7. Dissatisfied with how the EUAA had handled her access request and with its outcome, the complainant turned to the Ombudsman in April 2024.

The inquiry

8. The Ombudsman opened an inquiry into the EUAA’s refusal to disclose the documents at issue based on the need to protect public security and its decision-making. The redaction of personal data was not challenged by the complainant and was therefore not part of the inquiry.

9. In the course of the inquiry, the Ombudsman inquiry team inspected the 74 documents at issue,[7] which consisted of:

i. nine EUAA/Commission email exchanges on reception;

ii. two EUAA/Commission exchanges on a Commission visit;

iii. three other email communications;

iv. 27 emails received from the Commission;

v. 33 emails sent to the Commission

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

Arguments presented to the Ombudsman

11. The complainant argued that the EUAA had applied the exceptions to public access too broadly, and had failed to demonstrate the risks that (partial) disclosure would pose to the protected interests invoked. As regards the protection of decision-making, the complainant further took the view that there was an overriding public interest in disclosing the documents, namely the need to ensure transparency about EU-funded migration management activities in Cyprus. She stated that this was especially the case due to the allegations of rights violations in these facilities, and in light of the cooperation of Cyprus with Greece on the matter, which, in her view, raised additional concerns as regards potential fundamental rights issues and called for even greater transparency vis-à-vis EU citizens. Finally, the complainant argued that the EUAA had failed to provide partial access to the documents on largely administrative grounds, with such an exercise allegedly posing an excessive administrative burden.

12. The EUAA argued that it was not possible to give public access to the documents at issue without jeopardising the protection of public security and its decision-making process. Specifically, as regards public security, the EUAA explained that 12 of the documents concerned contained non-public information about the characteristics of a reception centre, including information coming from third parties. Their disclosure would both pose a physical security risk and put at risk the cooperation between the EUAA and these third parties, which would in turn seriously hamper the EUAA’s activities in Cyprus. As regards its decision-making, the EUAA explained that all 74 documents contained information and exchanges of a preliminary nature and that, following the consultations it had carried out with third parties, it had become apparent that if the Agency was to disclose such informal exchanges, there would be a serious risk that the personnel of the third parties concerned would cease to put forward their views vis-à-vis the EUAA. This would diminish the information flow to the EUAA and would have a serious negative effect on the functioning of the EUAA overall.

13.  The EUAA acknowledged the existence of a general public interest in issues related to fundamental rights, migration management and reception. However, it emphasised that this does not mean that there is an automatic overriding public interest in disclosure of all documents related to these matters. In this case, the EUAA noted that not all the documents identified directly dealt with these issues. The Agency further considered that the complainant had not sufficiently substantiated her arguments as regards the overriding nature of the public interest concerned. It concluded that, given that the documents at issue were not of a final nature, their disclosure did not seem to serve any particularly evident public interest.

14. As regards partial access, the EUAA argued that even in the theoretical scenario where very limited access could be provided, 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.

15. Finally, the EUAA apologised to the complainant as regards the delay in handling her access request. 

The Ombudsman's proposal for a solution

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

17. More precisely, as regards the protection of public security, the Ombudsman considered that, with the exception of one document,[8] most of the information contained in the documents appeared both generic in nature and, to a large extent, already available to the public, very often on the website of the EUAA itself. It was thus unclear how disclosing these documents could pose a risk to public security.

18. As regards the protection of decision-making, the Ombudsman recalled that the preliminary nature of a document as such is not sufficient to justify its non-disclosure. Rather, any refusal of public access must be based on the specific content of that document. Similarly, the non-final nature of a document also does not exclude the existence of an overriding public interest in disclosure.

19. The Ombudsman reiterated her observation that some of the documents at issue in this case contained elements to which the EUAA had already granted public access in various ways. More broadly, most of the information in the documents appeared to be generic in nature, known to the public, and/or likely to be outdated. The Ombudsman thus considered implausible the argument that staff members would cease to have these exchanges would they know that they could be disclosed. Therefore, it was unclear how the disclosure of the vast majority of these documents could seriously undermine the EUAA’s decision-making.

20. Finally, the Ombudsman did not agree that the complainant’s arguments in favour of an overriding public interest in disclosure were too general. Emphasising the concerning findings of the anti-torture Committee of the Council of Europe, the absolute character of the prohibition of inhuman and degrading treatment, the difficulty of civil society to monitor the situation in Cypriot facilities and - last but not least - the fact that these facilities receive EU funding, the Ombudsman took the view that all of this suggested the existence of an overriding public interest in disclosure of all documents or parts thereof not covered by the exception in relation to public security.

21. Based on all this, the Ombudsman proposed, as a solution,[9] that the EUAA should reconsider its decision on this public access request, with a view to giving significantly increased public access to the documents at issue.

The EUAA’s reply and the Ombudsman’s assessment after the proposal for a solution

22. In its reply,[10] the EUAA agreed to give the complainant very wide access to 64 out of the 74 documents, redacting only personal data and, in one document, limited information to protect the public interest as regards public security.

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

24. 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.

25. In view of this, the Ombudsman closes the case.

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, 21/02/2025

 

[1] Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees

[2] Report to the Government of Cyprus on the visit to Cyprus carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 9 to 17 May 2023, para 209, available at: https://rm.coe.int/1680afb22c

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

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

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

[7] During the inspection and following a request for clarification from the Ombudsman’s inquiry team, the EUAA identified 14 additional documents. The EUAA proposed to contact the complainant regarding those documents and then assess them within the scope of a new access request. The 14 additional documents thus do not fall within the scope of this inquiry.

[8] Document 56, which contained a detailed map of the camp layout.

[9] Solution proposal available at: https://www.ombudsman.europa.eu/solution/199728

[10] Solution reply available at: https://www.ombudsman.europa.eu/doc/correspondence/199729 ; corrigendum available at: https://www.ombudsman.europa.eu/doc/correspondence/199730