Background to the complaint

1. The European Border and Coast Guard Agency (Frontex) is the EU agency responsible for supporting EU Member States and Schengen-associated countries in the management of the EU’s external borders and in the fight against cross-border crime. In particular, Frontex carries out tasks related to border management, migration management, rapid border interventions and return operations. For all its activities, Frontex must monitor compliance with and ensure full respect for fundamental rights.[1]

2. Fundamental rights monitors are statutory staff of Frontex deployed to the operational areas on behalf of the Fundamental Rights Officer. They monitor and assess the fundamental rights’ compliance of Frontex’s activities, including return operations, provide advice and assistance in this regard, while contributing to the promotion of fundamental rights. In this context, the monitors cooperate with Frontex coordinating officers, advise and assist on matters related to fundamental rights, and draft reports for the attention of the Fundamental Rights Officer on potential concerns.

3. The complainant, a researcher, made a request for public access to documents[2] held by Frontex in November 2024. He asked Frontex to disclose “all Mission Reports produced by Fundamental Rights Monitors regarding Frontex operational activities in Bulgaria, covering the period 1 May 2024 until the date of registration of this request.”

4. Frontex replied to his request in December 2024. It identified four mission reports as falling within the scope of the request, but refused access to them in their entirety. In doing so, Frontex invoked two exceptions under the EU legislation on public access to documents (Regulation 1049/2001), arguing that disclosure would undermine the public interest as regards public security and its internal decision-making procedure.[3]

5. The complainant asked Frontex to review its decision to refuse access to the four documents by making a ‘confirmatory application’.

6. Frontex adopted its confirmatory decision in this case in January 2025. Frontex confirmed its decision to refuse public access to the documents in full, adding that disclosing the documents would also undermine the protection of privacy.[4]

7. Dissatisfied with Frontex’s refusal to disclose the documents, the complainant turned to the Ombudsman in January 2025.

The inquiry

8. The Ombudsman opened an inquiry into Frontex’s refusal to give public access to the requested documents.

9. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue. The Ombudsman also received additional comments from Frontex.

Arguments presented to the Ombudsman

10. The complainant argued that Frontex had made excessive use of the 'public security' and 'internal decision-making' exceptions, relying largely on generic assertions, and that it had failed to address many of the arguments made in the confirmatory application.

11. In particular, the complainant contended that Frontex should have granted partial access to the documents. He found Frontex’s argument that redacting the documents would constitute a disproportionate administrative burden to be unfounded. Frontex also presumed that the releasable elements would be “of no use” to him, when he had made clear that he was interested in obtaining partial access.

12. The complainant considered that Frontex failed to explain how access to the information contained in the documents could specifically and actually undermine public security. It would be easy for Frontex to redact such information, if any.

13. He believed that the documents are likely to contain information regarding illegal practices by the Bulgarian authorities, in which Frontex could be implicated. Should that be the case, Frontex cannot invoke the ‘public security’ exception in relation to practices that contravene EU fundamental rights.

14. According to the complainant, it is highly likely that at least some of the information contained in these documents has already been made public, for instance in the Fundamental Rights Officer’s Annual Report, in multiple disclosed ‘serious incident reports’ and in other media or civil society reports. Given that Frontex has disclosed fundamental rights monitors’ reports in a partial manner on previous occasions, the complainant failed to understand how disclosure of the four reports at issue could pose such a risk.

15. The complainant contended that Frontex had failed to consider that there is an overriding public interest in disclosure. EU citizens have the right to receive access to crucial information enabling citizens, including Members of the European Parliament and civil society, to scrutinise Frontex’s response to potential fundamental rights violations at the border.

16. Frontex argued that partial access to the documents was not possible because the documents include numerous actionable details of an ongoing operation. In particular, these documents contain condensed, comprehensive information on various specific aspects of law enforcement activities and reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities. Granting public access to the documents would undermine the public interest as regards public security. Frontex argued that granting partial access would be meaningless because the parts that could be disclosed would be of no use and unintelligible.

17. Frontex argued that disclosure of the documents would also seriously undermine the agency’s decision-making process because it would hamper the ongoing evaluation of the respective operations. In addition, granting public access would lead the authors of the reports to take that risk of disclosure into account in the future, to the point that they might practise self-censorship. This could deter persons from reporting concerns related to alleged violations of fundamental rights within the agency’s operational activities out of fear of being publicly identifiable.

18. Frontex insisted that the deliberations of the Fundamental Rights Office and their working methods require special protection, in particular those pertaining to ongoing Frontex operational activities. Previous disclosures of fundamental rights monitors’ mission reports by Frontex were possible only after the conclusion of the operational phase of the joint operational activities to which these reports pertained.

19. Frontex invoked another exception that was not invoked in its initial reply, namely the protection of privacy. Frontex said the complainant had not established a necessity to have the personal data transmitted for a specific purpose in the public interest.

20. In reply to the complainant’s argument about the existence of an overriding public interest in disclosure, Frontex argued that the majority of the elements in the documents requested fall under the absolute exceptions related to the protection of the public interest as regards public security and to the protection of privacy, that cannot be set aside by an overriding public interest. In any case, the complainant’s general statements relating to Frontex operational activities in Bulgaria could not provide an appropriate basis for establishing that the principle of transparency is especially pressing and capable, therefore, of prevailing over the other reasons justifying the refusal of access to the documents, namely the protection of the decision-making process.

21. In its additional views provided to the Ombudsman after the opening of the inquiry, Frontex explained that, while certain elements in the documents may be individually accessible elsewhere, the documents constitute a unique compilation and analysis of information within a specific evaluative context. The documents play a role in an ongoing structured evaluation process of the concerned Joint Operation. Disclosing the documents prematurely would risk undermining Frontex’s decision-making process. Frontex clarified that the evaluation report would be submitted to its Management Board following the conclusion of the operational activities, together with the observations of the Fundamental Rights Office. Frontex estimated that the evaluation would be completed in the second half of 2025.

The Ombudsman's assessment

Protection of the public interest as regards public security (Article 4(1)(a) of Regulation 1049/2001)

22. The EU institutions, bodies, offices and agencies enjoy a wide margin of discretion when determining whether disclosing a document would undermine the protection of the public interests listed in Article 4(1)(a) of Regulation 1049/2001, which include public security.[5] As such, the Ombudsman’s inquiry sought to assess if there was a manifest error in Frontex’s assessment in that regard.

23. The inspection of the documents carried out by the Ombudsman inquiry team showed that several parts of the documents contain elements or information that are operational in nature, and relate to the work of law enforcement on the ground. For example, some parts describe strategic decisions by Frontex on the deployment of officers or even specific patrol rotation of Frontex officers. Other parts provide detailed information on the activities of smuggling groups at specific locations.

24. The Ombudsman finds that there was no manifest error in Frontex’s assessment that disclosure of such operational information would undermine public security. Frontex’s argument is strengthened by the fact that, at least at the time of the request and of Frontex’s reply, the information concerned operations during the year in question (2024).

25. The remaining parts of the documents at issue do not appear to contain any sensitive elements. They rather compile information that is publicly available. The Ombudsman considers that these parts are clearly not covered by the public security exception, but will assess below whether another exception invoked by Frontex, namely the protection of its decision-making process, applies to them.

Protection of the institution's ongoing decision-making process (Article 4(3) of Regulation 1049/2001)

26. Frontex argued that disclosure of the information contained in the documents, in particular the evaluations by its fundamental rights monitors, could undermine the currently ongoing and planned operational activities and therefore undermine its decision-making process.

27. The inspection of the four documents at issue carried out by the Ombudsman inquiry team confirmed that they were produced between June and November 2024, that is, during the same year that the complainant made his access request (in November 2024). It was therefore reasonable for Frontex to argue that the reports contained recent recommendations from the monitors to Frontex’s Fundamental Rights Officer, who, at the time Frontex’s confirmatory decision was being drafted (January 2025), was still considering how to address them. Frontex confirmed in its additional views that the evaluation cycle could last until the second half of 2025.

28. As such, it was not unreasonable for Frontex to consider that partial access would be meaningless, given that the documents - if disclosed partially - would likely be redacted almost in their entirety, leaving only some publicly available information. Frontex confirmed that it had given partial access to previous fundamental rights monitors’ mission reports once the operational phase had been concluded.

29. Frontex further explained that it was not possible to invoke the existence of an overriding public interest in disclosure for those parts of the documents covered by an absolute exception. Frontex also argued in a convincing manner that, when it comes to the parts covered by the ‘decision-making process’ exception, the need to protect those parts was stronger than the public interest in disclosure. The Ombudsman believes that the arguments raised by the complainant certainly have merit: there is a public interest in obtaining information about the fundamental rights situation in Frontex’s border operations so as to enable citizens to hold Frontex accountable. There is, nonetheless, also a public interest in protecting Frontex’s ability to carry out its own evaluation of the situation by keeping the working methods of the fundamental rights monitors safe from possible public pressure while the operational assessment period is still ongoing. In this case, the Ombudsman considers that it was not unreasonable for Frontex to argue that the balance is in favour of the latter.

Privacy and the integrity of the individual (Article 4(1)(b) of Regulation 1049/2001)

30. Frontex said in its confirmatory decision that the documents at issue contain personal data, such as names of individuals and/or characteristic features that could lead to the identification of individuals. Frontex did not invoke this exception at initial stage.

31. The inspection carried out by the Ombudsman inquiry team showed that there is very limited information that could lead to the identification of an individual, in documents 1 and 2. The rest of the documents do not contain any information that could be qualified as personal data since the documents are drafted in an anonymised way.

32. The Ombudsman notes that Frontex argued in the confirmatory decision that the applicant had failed to establish that the transfer of personal data was necessary for a specific purpose in the public interest.[6] The Ombudsman finds this statement problematic, because Frontex did not mention in its initial reply that the documents contain personal data. It was thus not possible for the complainant to know that he should have also provided arguments for personal data to be disclosed. However, since the exception appears to cover a very limited number of individuals, and Frontex invoked the other exceptions reasonably, there is no reason to pursue this matter.

Conclusion

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

There was no maladministration by Frontex in this case.

The complainant and Frontex will be informed of this decision.

Teresa Anjinho
European Ombudsman

Strasbourg, 25/06/2025

 

[1] See Article 10 and Article 80(1) of Regulation 2019/1896 of 13 November 2019 on the European Border and Coast Guard, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1573722151667&uri=CELEX:32019R1896

[2] 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.

[3] Article 4(1)(a) first indent and Article 4(3) of Regulation 1049/2001.

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

[5] See, for example, the judgment of the General Court of 11 July 2018, ClientEarth v European Commission, case T-644/16, para 25, available at: https://curia.europa.eu/juris/liste.jsf?num=T-644/16&language=en

[6] This is in line with the EU legislation on public access to documents and on data protection, according to which personal data can only be disclosed if the person seeking access to it can demonstrate a specific need in the public interest that is served by the release of the personal data in question.