Background to the complaint

1. In March 2022, the complainant asked the European Commission for public access to documents[1] concerning correspondence and meetings with lobby and industry groups regarding sanctions against Russia[2].

2. The Commission did not provide the complainant with a list of documents it had identified as falling within the scope of his request and it refused access to the requested documents in their entirety. In doing so, the Commission invoked an exception under the EU legislation on access to documents (Regulation 1049/2001), arguing that disclosure would undermine the protection of the public interest as regards international relations, defence and military matters[3].

3. In April 2022, the complainant asked the Commission to review its decision (by making a ‘confirmatory application’). He considered that there was an overriding public interest in knowing how lobby and industry groups may have influenced the decision making on an important matter of public interest.

4. Not having received a reply to his confirmatory application within the statutory time limits, the complainant turned to the Ombudsman in July 2022.

The Ombudsman’s proposal for a solution

5. The Ombudsman opened an inquiry and asked the Commission to reply to the complainant’s confirmatory application as soon as possible. The Commission said that it was not possible to reply within the given timeframe or to provide a timeframe within which it could provide a reply.

6. The Ombudsman then asked the Commission for a list of documents that it had identified at initial stage and that could be shared with the complainant. The Commission provided the list but considered that the list was confidential and could not be shared with the complainant. It argued that the list itself was part of the ongoing review at confirmatory stage and that third parties were still being consulted.

7. Given the ongoing delay, the Ombudsman then inspected the documents at issue. The inspection revealed that ten out of the 41 identified documents were already publicly available and that 18 documents were cover letters or cover emails of a purely administrative nature. The Ombudsman noted that these documents contain personal data. This was, however, not brought to the attention of the complainant in the Commission’s initial decision refusing access. Thus, the complainant was not in a position to bring forward arguments, in his confirmatory application, demonstrating that the transfer of the personal data is necessary for a specific purpose in the public interest. The Ombudsman considered, nevertheless, that these documents could be partially disclosed once the personal data has been redacted.

8. As concerns the remaining 13 documents, the Ombudsman took the view that they did not seem to contain, throughout, sensitive information the disclosure of which could undermine the protection of the public interest as regards international relations, defence and military matters.

9. In light of the above, the Ombudsman proposed to the Commission that it should

1. Provide the complainant, without further delay, with a list of documents falling within the scope of his request, draw his attention to the ten documents that are already publicly available and provide related links to these documents.

2. Review its initial position on the complainant’s public access request, taking into account the Ombudsman’s observations, with a view to granting the widest possible access to the remaining documents requested.

10. In her proposal for a solution, the Ombudsman furthermore noted that she had to base her assessment on an incomplete file, as, at the time of her proposal, the necessary third party consultations had not been concluded. Nor had the Commission adopted an explicit reply at the confirmatory stage. She asked the Commission to provide copies of the third party consultations with its reply to the proposal for a solution.

11. The Commission accepted the Ombudsman’s proposal for a solution, albeit ten weeks after the deadline originally set. It provided the complainant with a list of documents it had identified and the links to the publicly available documents. The Commission also granted wide public access to all documents requested subject to the redaction of personal data and, in the case of one document, commercially sensitive information.

The Ombudsman’s assessment after the proposal for a solution

12. While the Ombudsman welcomes the Commission’s positive response to her proposal for a solution and its decision to grant wide public access to the documents in question, she is concerned about the time it has taken the Commission to adopt its confirmatory decision. The complainant made his initial request on 10 March 2022 and the Commission granted access on 26 May 2023, that is more than one year later.

13. This case is thus another example of the significant and systemic delays the Commission encounters in dealing with confirmatory applications, which the Ombudsman considered to amount to maladministration in the context of her own-initiative inquiry into the matter earlier this year. ^[4]

14. In this particular case, the Ombudsman notes that the Commission launched the necessary third party consultations only after the Ombudsman had asked to inspect the documents at issue. This was a delay of nearly six months, as the complainant had made his confirmatory application at the beginning of April 2022 and the Commission consulted the relevant third parties at the end of September 2022 only.

15. The Ombudsman refers to the suggestion for improvement she has made in the context of the above-mentioned inquiry[5], namely that, at the outset of the procedure, following the registration of a request, the Commission should verify whether external consultations will be necessary and, if so, launch that process in a timely way.

Conclusion

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

The Commission has accepted the Ombudsman’s solution proposal and provided the complainant with a list of documents and the widest possible access to the requested documents.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 11/07/2023

 

 

[1] Under Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[2] See AsktheEU https://www.asktheeu.org/en/request/lobby_meetingscorrespondence_on_8#incoming-45947

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

[4] Recommendation on the time the European Commission takes to deal with requests for public access to documents (strategic inquiry OI/2/2022/OAM), 4 April 2023, available here: https://www.ombudsman.europa.eu/en/recommendation/en/167661

[5] See https://www.ombudsman.europa.eu/en/recommendation/en/167661