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. For all its activities, Frontex must monitor compliance with and ensure full respect for fundamental rights.[1] The Fundamental Rights Officer (FRO) is responsible for monitoring Frontex’s implementation of its fundamental rights obligations and for advising the Executive Director on fundamental rights-related issues[2].

2. In May 2024, the complainant, a journalist, asked Frontex for public access[3] to two documents: (i) the FRO’s opinion on the Agency’s serious incidents reporting mechanism issued in January 2024 (‘FRO’s opinion on reporting’); and (ii) the FRO’s opinion regarding Bulgaria issued between January 2024 and May 2024 (‘FRO opinion on Bulgaria’).

3. In June 2024, Frontex refused access to both documents in their entirety, invoking the protection of the public interest as regards public security[4] and the protection of ongoing internal decision-making processes[5].

4. In July 2024, the complainant asked Frontex to review its decision (by making a ‘confirmatory application’). 

5. In August 2024, Frontex adopted its confirmatory decision, reiterating its position that the two FRO opinions could not be disclosed in their entirety without seriously undermining the protection of the public interest as regards public security and ongoing internal decision-making processes. Frontex also said that it could not identify an overriding public interest in disclosure and that no partial access could be given.

6. Dissatisfied with Frontex’s decision, the complainant turned to the Ombudsman on 12 August 2024.

7. In the context of the Ombudsman’s inquiry, Frontex also sent additional views[6], where it invoked the protection of the public interest as regards international relations[7] to justify the refused access.

The Ombudsman's recommendation

8. In her recommendation,[8] the Ombudsman considered that Frontex’s application of the exceptions to protect the public interest as regards public security and international relations was excessive.

9. Whilst, in principle, the Ombudsman accepted that, in light of Frontex’s wide discretion, the use of the exceptions for the protection of the public interest as regards public security and international relations was not manifestly wrong, she did not agree that the information at issue was covered by these exceptions in its entirety. 

10. The Ombudsman was also not convinced by the argument that disclosure could impact Bulgaria’s operational cooperation with Frontex (and therefore risk undermining public security). National authorities have a duty to cooperate in good faith with Frontex.

11. Regarding Frontex’s reliance on Article 4(3) of Regulation 1049/2001, the Ombudsman concluded that Frontex failed to show, in its confirmatory decision and its additional views sent to the Ombudsman,[9] how, specifically and concretely, disclosing the two opinions at issue would undermine its ongoing decision-making processes.

12. More specifically, regarding the FRO’s opinion on Bulgaria, it was not clear to the Ombudsman what decision-making processes were still ongoing at the time of the confirmatory decision, and how these ongoing decision-making processes, if any, could be put at risk by the opinion’s disclosure. The Ombudsman also noted that both FRO‘s opinions include, to a significant degree, information that was already made public by Frontex at the time of the confirmatory decision, in particular, in the ‘Serious Incidents Reports’ on Bulgaria covering incidents from 2023[10].

13. In addition, the Ombudsman expressed concerns about Frontex’s position that it enjoys a “wide discretion” when applying the exception concerning the protection of a decision-making process in non-legislative matters. The Ombudsman noted that such a position is not supported by the case-law and is at odds with a culture of openness.

14. The Ombudsman was also concerned that Frontex did not engage with the relevant and specific arguments put forward by the complainant to show the existence of an overriding public interest in disclosure[11]. She reminded Frontex that it is required to respond to such arguments[12], and to assess itself the existence of an overriding public interest[13].

15. Finally, the Ombudsman considered that redacting two documents - of 13 and six pages respectively - cannot be considered as “particularly heavy” or “exceeding the limits of what may reasonably be required”[14].

16. In view of the above, the Ombudsman found that Frontex’s refusal to grant (partial) access to the two documents at issue constituted maladministration. She made the following recommendation:

Frontex should reconsider its position on the access request with a view to providing significantly increased access, taking into account the Ombudsman’s considerations in her recommendation.

17. In reply[15] to the Ombudsman’s recommendation, Frontex granted wide partial access to the two opinions, considering the passage of time since the confirmatory decision. Frontex noted that the remaining redactions include information whose disclosure would foreseeably undermine the protection of the public interest as regards public security[16]. It explained that this information relates to the modus operandi of law enforcement officials, the number and profile of the human resources involved, reporting tools and methods used by law enforcement officials, sensitive operational information used for risk analyses, and ongoing operational activities.

18. Frontex added that further parts of the two opinions needed to remain confidential, as their disclosure would seriously undermine internal decision-making processes regarding current and future activities of Frontex[17]. Frontex reiterated, with reference to the confirmatory decision and its additional views, that the decision-making processes at issue are ongoing and comprise discussions and negotiations within Frontex and between Frontex and Bulgaria.

19. Frontex stated that it will continue to review its internal policies and procedures as part of an ongoing effort to operate in line with the principles of good administration and transparency. 

20. In his comments on the Ombudsman’s recommendation and Frontex’s reply to it, the complainant thanked Frontex for providing wide partial access to the two opinions, but expressed disappointment as regards several issues:

• He noted that a year had passed since his confirmatory application, before the public could obtain some access. In addition, Frontex said that it only provided partial access due to the passage of time, without acknowledging that it should have done so at the time of the confirmatory decision. The complainant considered that Frontex effectively undermined the ability of various actors – journalists, civil society, Members of the European Parliament, as well as ordinary EU citizens – to hold it to account and to scrutinise its decision-making processes regarding serious breaches of fundamental rights.
• The complainant considered that Frontex did not acknowledge the wider implications of the Ombudsman’s findings, and that Frontex should provide wide public access to similar reports issued by its FRO in the future, without applicants having to resort to the European Ombudsman.
• The complainant contested the remaining redactions of the opinions (in particular with regard to the ‘recommendations’ sections of both FRO’s opinions) and the application of the exception concerning the protection of a decision-making process, noting that Frontex still did not give sufficient, if any, weight to the arguments in favour of an overriding public interest put forward in his confirmatory application.

The Ombudsman's assessment after the recommendation

21. The Ombudsman welcomes the wide public access to both opinions that Frontex has now granted following the recommendation.

22. Frontex withheld only limited information on the ground that its disclosure would put at risk public security[18]. In light of Frontex’s wide margin of discretion in applying this exception,[19] the Ombudsman considers that Frontex’s assessment in this regard is not manifestly wrong.

23. However, Frontex also redacted the FRO’s recommendations to Frontex in both opinions. These parts are withheld on the ground that their disclosure would seriously undermine Frontex’s ongoing decision-making process[20].

24. The Ombudsman regrets that Frontex did not provide any additional explanations as to its application of Article 4(3) first subparagraph of Regulation 1049/2001 to these parts. Frontex merely stated that a decision-making process is still ongoing, which would be affected by disclosure. This generic statement, without any details about the nature of the decision-making process at issue and the risk disclosure of the relevant sections would entail, falls short of the requirements set out in the case-law[21].

25. While the Ombudsman notes that Frontex did not reiterate its position that it enjoys a “wide discretion” when applying this exception in the context of non-legislative matters, which is inconsistent with the case-law[22], it remains unclear from Frontex’s reply whether it now agrees with the recommendation in this regard.

26. Finally, the Ombudsman regrets that Frontex did still not engage with the arguments put forward by the complainant in relation to the existence of an overriding public interest in disclosure. Frontex is required to respond to such arguments[23], and to assess itself the existence of an overriding public interest[24].

27. In light of the above, the Ombudsman considers that Frontex only partly agreed with the recommendation.

28. The Ombudsman expects that, in the future, in its ongoing effort to operate in line with the principles of good administration and transparency, Frontex will take due account of the considerations underpinning the recommendation.

Conclusion

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

Frontex only partly agreed with the Ombudsman’s recommendation by granting wider public access to the documents at issue.

The complainant and Frontex will be informed of this decision.

Teresa Anjinho
European Ombudsman

Strasbourg, 19/11/2025

 

[1] See Article 10 and Article 80(1) of Regulation 2019/1896 of 13 November 2019 on the European Border and Coast

Guard (Frontex Regulation), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1573722151667&uri=CELEX:32019R1896.

[2] See Article 109 of the Frontex Regulation.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://data.europa.eu/eli/reg/2001/1049/oj.

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

[5] Under Article 4(3) of Regulation 1049/2001.

[6] Available at: https://www.ombudsman.europa.eu/doc/correspondence/215476.

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

[8] The full text of the recommendation and the assessment that led to it are available at: https://www.ombudsman.europa.eu/en/recommendation/en/199964.

[9] Available at: https://www.ombudsman.europa.eu/doc/correspondence/215476.

[10] https://prd.frontex.europa.eu/document/serious-incident-reports-concerning-bulgaria-covering-the-period-from-february-to-july-2024/.

[11] Judgment of the Court of 16 July 2015, ClientEarth v. Commission, C-612/13 P, paragraph 90, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=165903&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13078468. 

[12] Judgment of the Court of First Instance of 6 April 2000, Kuijer v Council, T-188/98, 46, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=45228&pageIndex=0&doclang=fr&mode=lst&dir=&occ=first&part=1&cid=13079113.

[13] Judgment of the General Court of 25 March 2015, Sea Handling v. Commission, T-456/13, paragraph 100, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd2678276f90cc453ba017bf0696938a4f.e34KaxiLc3qMb40Rch0SaxuPc3j0?text=&docid=163182&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=140063.

[14] Confirmatory decision p. 13-14.

[15] Reply to the Ombudsman’s recommendation available at: https://www.ombudsman.europa.eu/doc/correspondence/215475.

[16] Under Article 4(1)(a) of Regulation 1049/2001.

[17] Under Article 4(3) of Regulation 1049/2001.

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

[19] Judgment of the General Court on 27 November 2019, Izuzquiza v. Frontex, T-31/18, paragraphs 64-66, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=221083&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13077645.

[20] Under Article 4(3) first subparagraph of Regulation 1049/2001.

[21] Judgment of the Court of Justice of 16 January 2025, Pollinis France v Commission, C‑726/22 P, paragraphs 58-79,  available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=294251&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13847227.

[22] Judgment of the Court in Pollinis France v Commission, C‑726/22 P, referred above, paragraph 66: “although the legislative activity of the EU institutions requires particularly wide access to documents, that does not in any way mean that the other activities of those institutions fall outside the scope of Regulation No 1049/2001 which, as provided in Article 2(3) thereof, applies to all documents held by those institutions, that is to say, drawn up or received by them and in their possession, in all areas of EU activity”.

[23] Judgment of the Court of 16 July 2015, ClientEarth v. Commission, C-612/13 P, paragraph 90, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=165903&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13078468.

[24] Judgment of the General Court of 25 March 2015, Sea Handling v. Commission, T-456/13 paragraph 100, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd2678276f90cc453ba017bf0696938a4f.e34KaxiLc3qMb40Rch0SaxuPc3j0?text=&docid=163182&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=140063.