Background to the complaint

1. In June 2023, the complainant, a journalist, wrote to the European Anti-Fraud Office (OLAF) requesting access to the case files of three investigations into staff members of EU institutions. These investigations were described in OLAF’s 2022 Annual Report as completed or concluded cases. The Annual Report referred to these cases as “Fake jobs”, “Multitasking accredited parliamentary assistants” and “Family ties and conflict of interest“.[1]  

2. OLAF replied that, according to the information it had, the proceedings conducted by the competent authorities following OLAF’s final report and recommendations were still ongoing. On that basis, OLAF considered that disclosure of the documents requested would undermine the protection of the purpose of its investigations[2]. OLAF also argued that disclosing these documents would seriously undermine OLAF’s decision-making process,[3] and concluded that there was no overriding public interest in disclosure.

3. The complainant then asked OLAF to review its decisions refusing access to these documents, by way of a ‘confirmatory application’.

4. In August 2023, OLAF maintained its view that it could not release the documents as disclosure would undermine the purpose of its investigations. OLAF also said that disclosure of the documents concerned would seriously undermine its decision-making,[4] and that the documents contained personal data. OLAF said that the complainant had not put forward arguments to establish the necessity to have the personal data transmitted for a specific purpose in the public interest.

5. The complainant was not satisfied with OLAF’s response and therefore turned to the Ombudsman in August 2023. 

The inquiry

6. The Ombudsman opened an inquiry into OLAF’s refusal to grant public access to documents concerning the three investigations in question.

7. In her letter opening the inquiry, the Ombudsman asked OLAF to provide the Ombudsman inquiry team with copies of the documents identified as falling within the scope of the complainant’s request. In agreement with OLAF, the Ombudsman inquiry team inspected only the final report of each of the three cases. The Ombudsman also asked OLAF for the information recently received from the authorities or institutions concerned regarding the follow-up to the three investigations.

Arguments presented to the Ombudsman

8. The complainant argued that, given the seriousness of the matter and the fact that significant public funds were involved, it was not justified that OLAF considered that the privacy rights of the individuals mentioned in the report were more important than the public interest in knowing about acts of corruption. He said that the main information he was interested in getting were the identities and nationalities of the persons involved, which he considered a reasonable request given the public money and the issues involved. He also argued that OLAF’s wide discretion may apply for as long as the follow up actions are carried out in a “reasonable timeframe”. In this case, however, the three investigations had been concluded in 2022, with no apparent follow up.

9. OLAF justified the refusal to disclose the documents primarily by saying that their disclosure would undermine the protection of the purpose of investigations. In that regard, OLAF stated that, according to the EU courts, the protection of OLAF’s investigations extends to their follow up, as long as that follow up takes place within a reasonable period.[5] OLAF thus argued that granting access to such files while the follow up activities are ongoing, even partially, could compromise the effective use of the investigation files by the authorities responsible for such follow-up.

10. OLAF informed the complainant that, as a matter of fact, the follow-up activities were still ongoing. More specifically, OLAF informed the complainant of the following:

• Regarding the investigation referred to by OLAF as “Fake Jobs” (OLAF’s case OC/2017/1324), OLAF closed the investigation in October 2022. It communicated its findings to the European Parliament with recommendations to initiate disciplinary and recovery action against the persons concerned, in accordance with the rules governing OLAF investigations.[6] It also forwarded its findings together with judicial recommendations to two Member States. OLAF also specified that it received recent information that the judicial procedure had been initiated in one of the Member States and is still ongoing.
• Regarding the investigation referred to by OLAF as “Family ties and conflict of interest” (OLAF’s case OC/2019/0202/A1), OLAF closed the investigation in May 2022. It communicated its findings to the institution concerned with a recommendation to initiate disciplinary proceedings. OLAF considered that the action taken to implement OLAF’s recommendation was initiated within a reasonable period of time, that is, one month after OLAF sent the final report to the institution concerned. OLAF specified that it had recent information from this institution, that the disciplinary procedure is still ongoing and its effectiveness must, thus, be protected.
• Regarding the investigation referred to by OLAF as “Multitasking accredited parliamentary assistants” (OLAF’s case OC/2018/0924), OLAF closed the investigation in July 2022. It communicated its findings to the European Parliament with recommendations to initiate disciplinary and recovery proceedings. OLAF also specified that it received recent information from the European Parliament that it had not yet decided on the disciplinary and financial follow up, due to justified reasons, which could not be disclosed without jeopardising the very purpose of the OLAF investigation, including the possible outcome of the follow-up proceedings.

The Ombudsman’s assessment

11. As OLAF stated in its final reply to the complainant, EU case-law has established a general presumption of non-disclosure of documents from OLAF’s investigations, on the basis that disclosure would undermine the purpose of investigations. This presumption applies to ongoing investigations and continues to apply for a reasonable period after their conclusion until competent authorities decide how to follow-up.

12. This is because, as the EU courts explained, granting access to the case file before the (reasonable) period for the responsible authorities to decide on any follow-up action has elapsed could compromise the effective use of the investigation file by the competent authorities. The main concern is that the persons suspected of irregularities, based on the information disclosed, could act in such a way as to prevent the proper conduct of the various procedures or investigations that those authorities might launch.[7]

13. Furthermore, “OLAF’s investigations, and any further procedures, depend on the ability of informers and witnesses to provide information. The prospect of seeing their information, explanations or assumptions disclosed could lead them to censor the information they provide or to hold back sensitive information, which could undermine the effectiveness of EU anti-fraud policy”.[8]

14. In this case, as explained by OLAF, the complainant requested access to case files of investigations that were closed by OLAF but still subject to ongoing follow-up by competent authorities.

15. Following an examination of the confidential information that OLAF provided, the Ombudsman confirms that the follow-up activities are still ongoing. OLAF concluded its investigation on these cases in May, July and October 2022 respectively.

16. When OLAF replied to the complainant’s requests, the follow up to the three cases had been ongoing for respectively eight, eleven and thirteen months. OLAF considered this to be a reasonable period. OLAF’s assessment is confirmed by EU case law: in a 2006 judgment, the Court considered that a period between seven and fifteen months for national authorities to decide what action to take in the light of the information sent by OLAF is reasonable.^[9] On that basis, the Ombudsman finds that OLAF was correct when it considered that the follow-up activities in the three cases at hand are still ongoing.

17. In these circumstances, the Ombudsman is of the opinion that OLAF was entitled to rely on the general presumption of confidentiality for the protection of investigations in these three cases.  

18. Finally, the Ombudsman has not identified an overriding public interest in disclosure that would outweigh the public interest in protecting the purpose of investigations. According to EU case-law, the principle of transparency, in itself, is not sufficient to substantiate an overriding public interest in disclosing documents. Only particular and specific relevant circumstances can constitute an overriding public interest.[10]

19. The general interest in proactively informing the public about the results of an OLAF investigation has to be balanced against the specific interest to be protected, judged at the time when the challenged decision was taken. In this case, the Ombudsman notes that some information on the OLAF investigations has been made public in OLAF’s 2022 Annual Report.

20. Since OLAF was justified to refuse access to these case files on the basis of the general presumption of confidentiality concerning the documents relating to its investigation activities, it is unnecessary, in the context of the this inquiry, to assess the two other exceptions invoked by OLAF (namely the protection of OLAF’s decision-making process and the protection of the privacy and integrity of the individual).  

Conclusion

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

There was no maladministration by OLAF in this case.

The complainant and OLAF will be informed of this decision.

Emily O'Reilly
European Ombudsman

Strasbourg, 17/10/2023

 

[1] The relevant section in the OLAF Annual Report 2022 is available at: https://ec.europa.eu/olaf-report/2022/investigative-activities/investigative-mandate/investigating-within-the-eu-institutions_en.html.

[2] Within the meaning of Article 4(2) third indent of Regulation 1049/2001 on public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[3] Within the meaning of Article 4(3) second indent of Regulation 1049/2001.

[4] Referring to Article 4(3) second indent of Regulation 1049/2001.

[5] Judgment of the General Court of 26 May 2016, IMG v Commission, T-110/15, para. 35, available at: https://curia.europa.eu/juris/liste.jsf?num=T-110/15&language=EN and of 1 September 2021, Homoki v Commission, T-517/19, para. 63, available at: https://curia.europa.eu/juris/liste.jsf?num=T-517/19

[6] Article 11 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R0883

[7] See judgment in IMG v Commission, referred to in footnote 5, para. 35.

[8] Idem.

[9] See Judgment of the Court of First Instance of 6 July 2006, Franchet and Byk v Commission, joined cases T-391/03 and T-70/04, para. 123, available at: https://curia.europa.eu/juris/liste.jsf?num=T-391/03&language=en

[10] Judgment of the Court of 21 September 2021, Sweden and others v API and Commission, joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P, paragraph 156, available at: https://curia.europa.eu/juris/liste.jsf?num=C-514/07&language=en