Background to the complaint

1. The European Border and Coast Guard Agency (Frontex) is an EU agency tasked with assisting Member States in monitoring the EU’s external borders.[1] As an inherent element of border management, Frontex provides operational and technical support to a requesting EU/Schengen country within the different phases of the return process, that is, the process by which foreign nationals are ordered to leave the EU because they have entered or they are staying irregularly.

2. In June 2022, Frontex started developing a series of “toolboxes” to help persons in a vulnerable situation, such as minors, disabled persons or elderly people, who are confronted with a return process. In particular, Frontex created a “Toolbox for Children in Return” comprising informative books for children, their parents or guardians as well as migration officers, meant to provide information about the return process.

3. The books, published in 2023, were developed in close collaboration with experts on fundamental rights, a child psychologist and an expert on child protection. They include:

• My guidebook on return – children’s version (6–11 years);
• My guidebook on return - youth version (12-17 years);
• My guidebook on return - unaccompanied children’s version (14-17 years);
• Activity Book (4-11 years); and
• Manual for parents and guardians.[2]

4. In April 2024, the complainant made a request for public access to documents[3] held by Frontex and related to “any correspondence on the creation of the Activity Book on returns for 4-11 year olds and My guidebook on return (Child Version)”.

5. In May 2024, Frontex issued its initial reply on the request. It informed the complainant that 76 documents had been identified, to which no access could be granted. Frontex argued that disclosure would reveal the methods of border guards and therefore undermine the EU’s public security. In addition, it relied on the protection of personal data.

6. The complainant challenged the refused access to these documents (by making a ‘confirmatory application’) in May 2024. She argued that Frontex had relied on generic arguments, and had failed to demonstrate a specific and actual risk that disclosure would undermine public security. She said that Frontex should provide, at a minimum, partial access to the documents (the complainant said she did not object to redactions of personal data). The complainant also asked Frontex to provide a list of identified documents.[4]

7. Frontex replied to the complainant’s confirmatory application in June 2024, confirming its initial position that no access could be granted to the documents in question. Frontex said that disclosure would undermine the need to protect the public interest as regards public security, as well as the protection of commercial interests, privacy and Frontex’s internal decision-making process.[5] Frontex also refused to provide the complainant with a list of documents, explaining that doing so would constitute the creation of a new document. Frontex explained that neither Regulation 1049/2001 nor EU case law establish a legal obligation to provide lists of documents.

8. Dissatisfied with how Frontex had handled her access request and with its outcome, the complainant turned to the Ombudsman in July 2024.

The inquiry

9. The Ombudsman opened an inquiry into Frontex’s handling of the complainant’s request for public access to documents.

10. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue. The Ombudsman also received additional views from Frontex on the complaint.

11. Following a review of the documents, the Ombudsman made a proposal for a solution that Frontex grant the widest possible access to the documents and provide the complainant with a list of documents.[6]

12. The Ombudsman gave the complainant the opportunity to comment on her proposal for a solution as well as on Frontex’s reply to it. The complainant did not provide any comments.

The Ombudsman's proposal for a solution and Frontex’s reply

13. In her proposal for a solution, the Ombudsman took the view that the content of the 76 documents at issue does not appear to be sensitive throughout. The documents are e-mails exchanged between June 2022 and September 2023 concerning the project undertaken by Frontex to create a toolbox for children involved in return operations. The documents contain feedback of Frontex staff members and external experts on draft versions of the publications. The comments and suggestions made are, in their vast majority, of an editorial or technical nature. The Ombudsman recalled that the publications are publicly available.[7]

14. The Ombudsman considered that Frontex had failed to demonstrate how disclosure of the documents, in their entirety, would undermine the public interest as regards public security. It was also not clear how disclosure of the documents might actually and specifically undermine Frontex’s decision-making process and the commercial interests of the external experts, as well as Frontex’s ability to participate in the market. The Ombudsman noted that the feedback received from external experts on draft versions of the publications is mostly of an editorial nature. If any parts of the documents were to fall under the commercial interest exception, Frontex could easily redact them. The same applies to any personal data contained in the documents.

15. More generally, the Ombudsman took the view that disclosing the emails to the public could reassure citizens about the quality work and careful efforts that Frontex put into drafting the toolbox for children involved in return operations.

16. In addition, the Ombudsman recalled that Frontex had informed her Office in reply to another inquiry that it would consider providing lists of documents to applicants “where deemed necessary” and “on a case by case basis”, so as “to further enhance applicants’ ability to make an effective and informed appeal”.[8] In this case, Frontex drafted its initial and confirmatory replies in a way which did not allow the complainant to understand the nature of the documents Frontex had identified. A list of identified documents would have been essential for the complainant to make an informed request for review.

17. On that basis, the Ombudsman proposed, as a solution, that Frontex should reconsider its position on the complainant’s request, with a view to granting the widest possible access to the documents at issue. Frontex should also provide the complainant with a list of identified documents.

18. In its reply to the solution proposal,[9] Frontex accepted to grant wide partial access to 75 of the 76 documents, with only limited redactions of personal data. Frontex also redacted limited parts in order to protect the public interest as regards international relations and public security, as well as its decision-making process and commercial interests.

19. Frontex explained that one document was considered, after further review, to fall outside the scope of the request because it concerned a consultation on a future project not related to the Toolbox for Children in Returns at issue in this case.

20. In addition, Frontex agreed to provide the complainant with a list of identified documents. It maintained its position that it has no legal obligation to list identified documents in reply to all access requests.

The Ombudsman's assessment after the proposal for a solution

21. The Ombudsman inquiry team verified the partially disclosed documents[10] against the unredacted documents that had been provided for inspection.

22. Based on this, the Ombudsman confirms that the redactions applied by Frontex cover personal data such as the names of Frontex staff members and external experts. Since the complainant stated in her confirmatory application that she was not interested in receiving personal data, and had thus not demonstrated a necessity for the transmission of personal data, the Ombudsman finds that the personal data redactions applied by Frontex are reasonable. The same applies to the name of a design studio that Frontex redacted based on the need to protect commercial interests.

23. Frontex also redacted limited parts of seven documents in order to protect the public interest as regards international relations and public security, as well as its decision-making process. The redacted parts include, among others, comments from Frontex staff members about a particular third country, a particular approach to migration and a different project that Frontex could work on in future. The Ombudsman finds that it was not manifestly wrong for Frontex to consider these comments to be sensitive.

24. The Ombudsman also confirms that Frontex’s decision to remove one document because it did not fall within the scope of the access request is correct.

25. The Ombudsman welcomes Frontex’s positive response to her proposal for a solution and the wide access granted, which she considers has resolved the complaint. She also welcomes Frontex’s decision to share a list of documents with the complainant. 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 Border and Coast Guard Agency (Frontex) has accepted the Ombudsman’s proposal for a solution by granting the complainant wide public access to the documents at issue.

The complainant and Frontex will be informed of this decision.

Teresa Anjinho
European Ombudsman

Strasbourg, 30/04/2025

 

[1] See Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard: https://eur-lex.europa.eu/eli/reg/2019/1896/oj.

[2] The full toolbox is available on the website of the Publications Office of the EU: https://op.europa.eu/en/publication-detail/-/publication/6eea0e99-e464-11ef-be2a-01aa75ed71a1

[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, applicable to Frontex pursuant to Article 114(1) of Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/eli/reg/2019/1896/oj.

[4] The complainant referred in that regard to the view taken by the European Ombudsman in case 1129/2023/OAM that, as a matter of good administration, EU institutions should provide a list of documents identified as falling within the scope of access requests, unless the very disclosure of the list undermines the interest(s) to be protected. See https://www.ombudsman.europa.eu/en/recommendation/en/182124.

[5] Set out, respectively, in Articles 4(1)(a), 4(2), 4(1)(b) and 4(3) of Regulation 1049/2001.

[6] The full text of the Ombudsman’s proposal for a solution is available at: https://www.ombudsman.europa.eu/solution/201607

[7] See footnote 2.

[8] See Frontex’s opinion on the European Ombudsman's recommendation concerning the provision of lists of documents identified as falling within the scope of requests for public access to documents, dated 21 May 2024, available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/193072

[9] Frontex’s reply to the solution proposal is available at: https://www.ombudsman.europa.eu/doc/correspondence/201608  

[10] Frontex published the redacted documents on its public register of documents: https://prd.frontex.europa.eu/document/correspondence-on-publications-for-childr/