Background to the complaint

1. In 2016 the complainant made a request for public access to documents to the European Anti-Fraud Office (OLAF). He requested access to the final report of the investigation into allegations of corruption and undue influence in awarding the EURALIUS IV tender in Albania.[1] Following the refusal to provide access, the complainant turned to the Ombudsman, who opened case 52/2017/DR.

2. In her decision in case 52/2017/DR of 18 July 2018,[2] the Ombudsman concluded that there was no maladministration by OLAF.

3. Following the Ombudsman decision on case 52/2017/DR, the complainant made a new request for access to the same document to OLAF.

4. In August 2018, OLAF replied to the request and refused both full and partial disclosure of the final report, on the basis of the need to protect the purpose of inspections, investigations and audits,[3] relying on the general presumption of confidentiality established by EU courts.[4] OLAF also referred to the need to protect the decision making process and the privacy and the integrity of the individual.[5]

5. Although it refused public access to the report, OLAF provided the complainant with more information about the outcome of the relevant investigation, as suggested by the Ombudsman in her closing decision in case 52/2017/DR. It informed the complainant that the investigation had not established evidence of irregularities, that it had been closed without any recommendation for action to be taken and that the final report had been transmitted to the secretary generals of the European Commission and the European External Action Service.

6. The complainant submitted a so-called ‘confirmatory application’, asking OLAF to review its refusal to grant access to the requested document, in response to which OLAF confirmed its original decision.

7. On 23 October 2018, dissatisfied with OLAF’s refusal, the complainant turned to the Ombudsman, who opened an inquiry.

The Ombudsman's proposal for a solution

8. Based on her inquiry, the Ombudsman presented OLAF with a proposal for a solution to the complaint.[6]

9. The Ombudsman took the view that OLAF was not justified in applying the general presumption of confidentiality as established in Strack v Commission. That case concerned access to documents “containing opinions intended for internal use in the course of deliberations and preliminary consultations”[7], not final reports of OLAF investigations, as in this complaint. The final report requested by the complainant in this case is not an internal document for use in the course of an investigation, but a concluding document, with a summary of the results of an OLAF investigation.

10. The Ombudsman noted that OLAF’s final reports fall under the general presumption of confidentiality only for the limited period, specifically while a follow-up to an investigation is ongoing.[8] As the investigation in question had long been closed without the need for a follow-up, OLAF had no justification for applying the general presumption in this case. 

11. However, the Ombudsman also noted that the fact that the general presumption is not applicable does not necessarily mean that the requested document must be released. It only means that it was necessary for OLAF to follow the standard rule in access to documents cases and make an individual assessment of the report to determine whether access should be given in this case or whether, under EU law, an exception justified non-disclosure.  

12. The Ombudsman therefore proposed that OLAF should review its decision refusing to grant public access to the document requested by the complainant and consider granting partial access after the necessary redaction.

The Ombudsman's assessment after the proposal for a solution

13. OLAF stated that it did not accept the Ombudsman’s proposal for a solution. It argued that its use of the general presumption was supported by the relevant case law. In particular, OLAF argued that the general presumption that access can be denied, which was recognised by the EU courts in Strack v Commission,[9] applies it to all documents related to an investigation, including a final report of OLAF. OLAF also highlighted the preliminary nature of its reports, which are intended to provide the competent authorities with information to enable them to undertake the measures they consider necessary.

14. Moreover, OLAF maintained that the complainant had not been able to demonstrate an overriding public interest in the release of the requested document, and that disclosure could undermine the protection of legitimate interests of the persons concerned.

15. The Ombudsman does not share OLAF’s broad interpretation of the case law on the application of the general presumption of confidentiality.

16. Nevertheless, she notes, from a careful reading of OLAF’s reply, that OLAF has in fact now conducted an individual assessment of the requested document. OLAF’s reply states that the release of the document, even when the personal data would be removed, could undermine the protection of legitimate interests of persons concerned, like informants, witnesses and staff of the Office. It explained that the removal of personal data from the document could not prevent possible misrepresentations of the facts, specifically about the persons concerned, since their identity can be derived from the context and information that is in the public domain.

17. OLAF also added that, under Article 24 of the Staff Regulations[10] it has the obligation to assist any official and, in that respect, not to reveal information to the public that might expose OLAF’s staff to unjustifiable external pressure or put them in negative light.

18. The Ombudsman has inspected the requested document. It is clear that the document does, on an individual assessment of its content, contain extensive sensitive information, which might be linked to identifiable persons, such as staff members at the Albanian delegation. The Ombudsman is aware that the legitimate interests of those persons may be negatively affected by the release of information that can be linked to them. As regards their legitimate interests, the Ombudsman notes that OLAF has informed the complainant that the investigation had not established evidence of irregularities, that it had been closed without recommendation for actions to be taken and that the final report with these findings had been transmitted to the secretary generals of the European Commission and the European External Action Service. In this context, the Ombudsman agrees that the persons concerned have a legitimate interest in their identities being protected. Any information which might even indirectly identify them as being linked to an OLAF investigation should not be released.

19. The Ombudsman is therefore satisfied with OLAF’s assessment that the releasing the report in question could harm the legitimate interests of data subjects concerned by the report.[11]

Conclusion

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

No further inquiries into the complaint are justified.

The complainant and OLAF will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 15/07/2019

 

 

[1] EuropeAid/1353741L/ATC/AL, for the consolidation of the Justice system in Albania. 

[2] Decision of the European Ombudsman in case 52/2017/DR on the refusal by the European Anti-Fraud Office to disclose the final report of an investigation concerning the award of a contract under an EU programme in Albania.

[3] In accordance with Article 4(2) third indent of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at:

http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32001R1049&rid=1.

[4] Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08, EUCI: EU:T:2016:242, paragraph 160.

[5] In accordance with Article 4(3) and Article 4(1)(b) of Regulation 1049/2001.

[6] The full text of the proposal for a solution is available at: https://www.ombudsman.europa.eu/en/solution/en/116510 .

[7] Strack v Commission, cited above, paragraph 152.

[8] In accordance with Judgment of the General Court of 26 May 2016, IMG v Commission, T-110/15, EUCI:EU:T:2016:322, paragraph 37.

[9] Strack v Commission, cited above, paragraphs 160 and 162.

[10] Article 24 (1) of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (the Staff Regulations), available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501 (“The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties”).

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