Dear Mr S.,

On 25 April 2002, you made a complaint to the European Ombudsman concerning the rejection by Europol of your request for access to documents related to a conference on terrorism held in Madrid.

On 20 May 2002, I forwarded the complaint to the Director of Europol. Europol sent its opinion on 26 August 2002 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were as follows:

On 5 February 2002, the complainant wrote to Europol asking access to the documents of a conference on terrorism held in Madrid from 29 January to 2 February 2001. The complainant asked for the preparatory documents of the conference, the report of the conference and the so-called "Madrid-document", i.e. the closing document of the conference.

On 5 March 2002, Europol rejected the complainant's request, stating that the documents in question relate to the activities of Europol and its Member States in preventing and combating terrorism. Europol pointed out that these documents contain operational and strategic information the disclosure of which could be harmful for the protection of public interest.

On 15 March 2002 the complainant made a confirmatory application claiming partial access. On 12 April 2002, Europol rejected the confirmatory application stating that, in matters of public access, it applies by analogy Council Decision 93/731/EC on public access.

On 25 April 2002, the complainant made the present complaint to the Ombudsman claiming that Europol should give access to the documents concerned, as the refusal is contrary to Council decision 93/731 of 20 December 1993.

THE INQUIRY

Europol's opinion

Europol pointed out that, by a decision of its Management Board of 21 June 2000, it applies ad interim, by analogy, Council Decision of 20 December 1993 on public access to Council documents.

The application by the complainant, dated 5 February 2002, concerned the documents related to a Counter Terrorism Conference held in Madrid from 29 January to 2 February 2001. The complainant requested more specifically the meeting documents, the minutes as well as the so-called Madrid-document, the conclusions of the conference.

Both the initial application and the confirmatory application dated 15 March 2002 led to a decision by the Director to refuse access on the ground of protection of public interest in accordance with Article 4 of the Council Decision of 1993 on Public Access. The reasons for the refusal of access are the following.

The documentation related to the Conference - preparatory documents, minutes and conclusions of the high level meeting as well as of the different Working groups - contain not only information on the internal working methods of Europol and/or of relevant competent authorities of the Member States in the field of combating terrorism but also includes information on the positions expressed by the different delegations of the Member States subject to an expectation of confidentiality.

Furthermore some documents include information on specific operational activities, such as the identification of confidential operational projects or information related to the content and the functioning of analysis work files.

Public knowledge of these documents could be harmful for the international relations of Europol and jeopardise the confidence in Europol. Disclosure of the documents could also provide indications on the activities of the Member States in the area of counter terrorism.

Revealing specific information related to the functioning of the national authorities of the Member States as well as the functioning of Europol could interfere with the effectiveness of combating crimes related to terrorism.

In conclusion, the decision by Europol to refuse access was based on the protection of public interest. In weighing the legitimate interest of the complainant to have access to the documents against the legal obligation of Europol and the Member States of the EU to prevent and combat terrorism, the latter one was deemed to clearly outweigh the first one. Europol therefore believes that its refusal to grant access to the documents was justified, and that the arguments presented to the complainant to reason that decision were convincing.

The complainant's observations

The complainant made no observations on the opinion of Europol.

THE DECISION

1 The claim for access to documents of a conference on terrorism

1.1 The complainant claimed that Europol should give access to the documents concerned, as the refusal is contrary to Council decision 93/731 of 20 December 1993.

1.2 Europol stated that in weighing the legitimate interest of the complainant to have access to the documents against the legal obligation of Europol and the Member States of the EU to prevent and combat terrorism, the latter one was deemed to clearly outweigh the first one. Its refusal to grant access to the documents was justified, and that the arguments presented to the complainant to reason that decision were convincing.

1.3 The Ombudsman notes that the complainant's request for access to the documents of a conference on terrorism held in Madrid from 29 January to 2 February 2001 has to be considered under the Council Decision 93/731/EC which is applicable at Europol as an interim measure on basis of the decision of its Management Board of 21 June 2000 and which is published on Europol's Website(1). The exceptions on the access to documents are mentioned in Article 4 of the Council Decision. Article 4.1 provides that "access to a Council document shall not be granted where its disclosure could undermine the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations").

1.4 In its judgement in case T-174/95, the Court of First Instance held that "the objective of Decision 93/731 is to give effect to the principle of the largest possible access for citizens to information with a view to strengthening the democratic character of the institutions and the trust of the public in the administration"(2). The Ombudsman however notes that the very nature of police work necessarily involves handling information and documents which, in the interests of citizens, must be treated confidentially(3).

1.5 In the present case, the reasons invoked by Europol to refuse access to the documents requested by the complainant, namely that they contain information on the internal working methods of Europol and of relevant competent authorities of the Member States in the field of combating terrorism, appear to be justified.

1.6 On basis of the above, the Ombudsman considers that Europol was entitled to refuse access to the documents on basis of the protection of public interest (public security) as specified in Article 4 of the Decision 93/731. No instance of maladministration was therefore found by the Ombudsman.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by Europol. The Ombudsman therefore closes the case.

The Director of Europol will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) New rules on public access to Europol documents are still under consideration. In the meantime, Europol continues to apply by analogy the rules contained in Council Decision 93/731/EC.

(2) Case T-174/95, Svenska Journalistförbundet v. Council, [1998] ECR II-2289, par. 66.

(3) Annual Report of the Ombudsman 1999, page 257.