Background to the complaint

1. In December 2023, the complainant made a request to the European Anti-Fraud Office (OLAF) for public access[1] to the entire file concerning the investigation into the complainant’s company. At that time, the OLAF investigation and the related follow-up proceedings had already been completed.

2. In March 2024, OLAF granted partial access to the final report from the investigation. In refusing full access to the report, OLAF relied on several statutory exceptions to public access, namely the protection of privacy and the integrity of individuals,[2] commercial interests,[3] investigations,[4] and OLAF’s decision-making process.[5] OLAF refused to grant access to the remaining documents in the investigation file, relying on case law establishing a general presumption of non-disclosure that, in OLAF’s view, applies to its investigation files in their entirety and even after the related follow-up proceedings have been completed.[6]

3. The complainant asked OLAF to reconsider its position, by making a ‘confirmatory application’, arguing that there was an overriding public interest in disclosure of the requested documents to scrutinise OLAF’s activities. The complainant claimed to have been declared innocent by national courts despite the findings of OLAF’s investigation and, consequently, wished to hold OLAF to account.

4. In reply, OLAF confirmed its initial position.

5. Dissatisfied with this outcome, the complainant turned to the Ombudsman in June 2024.

The inquiry

6. The Ombudsman opened an inquiry into OLAF’s decision to grant only partial access to the final report and to refuse any public access to the remaining documents in the investigation file.

7. In the course of the inquiry, the Ombudsman inquiry team held a meeting with OLAF representatives. Subsequently, the Ombudsman shared with OLAF her preliminary views on the scope of application of the general presumption of non-disclosure to OLAF’s investigation files, as recognised by case law, and received OLAF’s reply to these views. The Ombudsman also received the complainant’s comments on her preliminary views and OLAF’s reply.

8. Moreover, the Ombudsman inspected the non-redacted version of the final report and a sample of documents from the investigation file.

Arguments presented

9. In refusing (full) public access to the investigation file, OLAF argued that it is bound to treat all information it obtains during its investigations as confidential and that it is subject to professional secrecy in line with Article 339 of the Treaty on the Functioning of the European Union, Article 10(1) of Regulation 883/2013 concerning investigations conducted by OLAF[7] (‘OLAF Regulation’), as well as Article 17 of the EU Staff Regulations[8].

10. OLAF relied on several exceptions to public access set out in the EU legislation on public access to documents (Regulation 1049/2001), namely:

· the protection of privacy and the integrity of individuals,[9]

· the protection of commercial interests,[10]

· the protection of “documents containing opinions for internal use as part of deliberations and preliminary consultations” within OLAF, the disclosure of which, even after the relevant investigation and follow-up activities have been closed, could seriously undermine OLAF’s future decision-making processes, that is, the effectiveness of future investigations,[11]

· the protection of the purpose of investigations.[12]

11. As regards the protection of privacy and the integrity of individuals, OLAF argued that the final report and the remaining documents in the investigation file contain the personal data of EU officials and third parties, whereas the applicant did not express any specific interest in receiving this personal data, nor did he put forward a necessity for having the data transferred to him for a specific purpose in the public interest, as required by the EU data protection legislation (Regulation 2018/1725).[13]

12. As regards the protection of commercial interests, OLAF argued that the final report and the remaining documents in the investigation file contain the names and other information relating to private companies, the disclosure of which would have adverse effects on their reputation.

13. As regards the protection of the effectiveness and purpose of OLAF’s future investigations, OLAF argued that the redacted parts of the final report contain information on OLAF investigative activities undertaken in this specific case and information provided by OLAF’s sources. Moreover, OLAF invoked a general presumption of non-disclosure in relation to its closed investigation files, by referring to the Strack ruling[14]. OLAF argued that the General Court had in this judgment recognised a general presumption of non-disclosure of the entire investigation file because the disclosure of any documents contained therein would seriously undermine OLAF's decision-making process. It explained that disclosure would compromise the independence of OLAF’s future investigations and their objectives by revealing OLAF's strategies and working methods, as well as discouraging the cooperation of informants, witnesses and national authorities in future cases.[15] OLAF emphasised that the general presumption continues to apply even after the closure of the investigation and related follow-up activities.

14. OLAF firmly rejected the complainant’s allegations of serious irregularities or even illegal acts committed by OLAF in the context of the investigation, which - according to the complainant - would constitute an overriding public interest in disclosure of the requested documents to ensure OLAF’s accountability. OLAF considered that these allegations were unsubstantiated. Moreover, OLAF emphasised that its final investigation reports and recommendations have no binding legal effect on the authorities responsible for legal proceedings against the persons concerned. Only decisions of these latter authorities could affect the legal situation of the persons concerned.

15. In any case, OLAF noted that a specific harm allegedly suffered by the person concerned by the investigation does not result in an overriding public interest in disclosure under Regulation 1049/2001. This is because Regulation 1049/2001 concerns public access to documents and not the protection of individual interests of specific persons.

16. In addition, OLAF explained that, in this specific case, it had carried out an individual assessment of the final report and applied redactions to some of it based on the statutory exceptions mentioned above.

17. In the complaint to the Ombudsman, the complainant argued that OLAF sought to shield itself from accountability and that its reliance on statutory exceptions to public access were excuses advanced to this end.

18. The complainant contended that citizens must know how public institutions work and what specific methods they employ, especially when their actions lead to false accusations and defamations.

19. The complainant disagreed with the contention that OLAF might refuse access to the investigation file to the person concerned, especially when it has breached this person’s fundamental rights, like in the present case.

The Ombudsman’s preliminary view

20. In her preliminary views, the Ombudsman examined OLAF’s arguments regarding the protection of its future investigations and the purpose of its investigations. The Ombudsman took the view that OLAF had applied the general presumption of non-disclosure too broadly in this respect.

21. The Ombudsman pointed out that, while the General Court in Strack recognised a general presumption of non-disclosure for certain categories of documents in the investigation file so as to protect the effectiveness of OLAF’s future investigations, this general presumption does not extend to the entire investigation file.

22. More specifically, the General Court recognised in Strack a general presumption of non-disclosure based on the statutory exception to public access concerning the need to protect decision-making processes after they have ended. According to this case law, the exception is “limited by strict conditions”. Documents or their parts can be protected based on this exception only where they contain “opinions for internal use as part of deliberations and preliminary consultations within the institution concerned” and where their disclosure would “seriously undermine the institution’s decision-making process”.[16]

23. Accordingly, the general presumption recognised by the General Court in Strack covers certain categories of documents in the investigation file only, namely (1) case notes and internal correspondence containing strategic analyses of investigators, as well as (2) drafts of the final report.[17] The General Court acknowledged that these specific categories of documents in the file, if disclosed, could reveal OLAF’s strategies and methods, thereby seriously undermining the effectiveness of its future investigations.[18]

24. In the public access request at issue in the Strack case, in fact, OLAF had granted (partial) public access to several documents in its investigation file.[19]

25. The Ombudsman further pointed out that OLAF’s reliance, in its confirmatory decision, on the need to protect the purpose of its investigations was problematic in this case. According to case law, this exception to public access is limited in time. It can only be applied during investigations and as long as a reasonable time for follow-up activities by authorities implementing OLAF’s recommendations has not elapsed.[20] In this case, OLAF confirmed that the investigation, as well as all follow-up activities, had been completed.

26. More generally, the Ombudsman noted that the OLAF Regulation does not prevail over Regulation 1049/2001, and that both regulations must be interpreted in a coherent way.[21] In view of this, there seems to be no need for any special provisions on access to OLAF investigation files for persons concerned after the investigation and follow-up activities have been completed, assuming that these persons - like any other member of the public - could obtain access under Regulation 1049/2001.[22]

27. Finally, the Ombudsman took the view that recognising a general presumption of non-disclosure applicable to the entire OLAF investigation file, and unlimited in time, would severely limit the transparency and accountability of OLAF’s activities.

28. As the General Court noted, the absence of a time limit for the presumption of non-disclosure of the investigation file would run counter to the objective of ensuring public access to documents, which is to allow citizens to monitor more effectively lawfulness in the exercise of public power.[23]

29. As regards the partially disclosed final report, the Ombudsman observed that some redactions in the version disclosed to the complainant were excessive. They concerned specific actions undertaken by OLAF in the context of the investigation. However, the public might reasonably expect OLAF to undertake that kind of actions in its investigations. The Ombudsman was not convinced that disclosure of this information would reveal OLAF’s “strategies and methods”, thus putting at risk the effectiveness of its future investigations. In this context, the Ombudsman encouraged OLAF to review the redactions in the version of the final report disclosed to the complainant with a view to granting broader access.

OLAF’s reply to the Ombudsman’s preliminary views

30. In its reply to the Ombudsman’s preliminary views, OLAF acknowledged that “the question of whether a general presumption may apply to an entire OLAF investigation file, after the investigation has been closed and the follow-up completed, has not been examined by the Court of Justice, which is the authoritative interpreter of EU law”. At the same time, OLAF argued that the general presumption of non-disclosure, as recognised by the General Court in the Strack ruling, could be applicable to OLAF’s investigation files in their entirety. OLAF relied on a specific paragraph in the ruling, which it interpreted as meaning that the general presumption was applicable to any “documents linked to the investigation”.[24]

31. OLAF further argued that its investigations must be protected beyond their closure, as Regulation 1049/2001 allows the institutions to refuse access to documents to protect the “purpose” of investigations and not only specific investigations.[25]

32. OLAF relied, moreover, on case law concerning other types of investigations by the European Commission, in which the EU Courts held that public access to documents linked to administrative investigations cannot be broader than access to these documents foreseen by relevant legislation for the persons concerned. Otherwise that legislation would be undermined.[26] In OLAF’s view, by analogy, public access to OLAF investigation files under Regulation 1049/2001 cannot be broader than access to these files for persons concerned under the OLAF Regulation. The persons concerned should, in principle, seek access to the relevant OLAF investigation files from those authorities that are responsible for the follow-up proceedings, including national authorities.

33. OLAF considered that all documents in its investigation files share a common feature, that is, they all contain information obtained in the course of investigations, the confidentiality of which is protected by Article 10 of the OLAF Regulation. As all this information serves to prepare OLAF’s final report and related recommendations, it should be covered, in its entirety, by the same general presumption of non-disclosure. In addition, OLAF reiterated that it must refuse public access to its investigation files in order to protect its strategies and methods, as well as its informants and witnesses, who might otherwise be discouraged from cooperation. OLAF considered that public access to its investigation files might also undermine the cooperation of national authorities.

34. Moreover, OLAF emphasised that, in the recent judgment OC v Commission[27], the Court of Justice highlighted the significant challenges associated with redacting personal data from OLAF documents. According to OLAF, the judgment demonstrates that even seemingly disconnected details can enable the identification of natural persons.

35. OLAF also pointed out that the EU co-legislators have established mechanisms to ensure transparency and accountability of OLAF, including specific obligations for OLAF to report on its activities to EU institutions, the Supervisory Committee of OLAF, and the public. OLAF’s activities are thus subject to scrutiny.

36. As regards the redactions applied to the final report, OLAF said that no further access to this document was possible for the same reasons outlined above.

The Ombudsman's assessment

37. The Ombudsman acknowledges OLAF’s view that certain information concerning its investigations must be protected. That said, she considers that OLAF’s position that the general presumption of non-disclosure, as recognised by the General Court in the Strack ruling, could be applicable to OLAF’s investigation files in their entirety is not tenable for the following reasons.

38. First, the Ombudsman’s view remains that the general presumption as recognised by the General Court in its Strack ruling concerns certain categories of documents in the investigation file only, namely internal and preliminary analyses of the case, internal correspondence, and drafts of the final report.

39. In fact, in Strack the General Court examined a confirmatory decision in which OLAF had already partially disclosed certain documents in the investigation file. After having described the categories of non-disclosed documents,[28] the General Court, considered that public access to “such documents” could undermine the effectiveness of OLAF’s investigation[29] and, therefore, recognised a general presumption of non-disclosure of these specific categories of documents.

40. While a subsequent paragraph of the Strack ruling may lead one to believe, as OLAF does, that the general presumption could be applied more broadly, namely, to any documents linked to the investigation,[30] the Ombudsman points out that the general presumption in question is based on a specific statutory exception to public access, that is, the protection of closed decision-making processes. According to Regulation 1049/2001, this exception can only be applied to documents containing “opinions for internal use as part of deliberations and preliminary consultations within the institution concerned”.[31] Based on the inspection of documents, the Ombudsman considers that the documents that OLAF could thus protect in this regard are, for instance, preliminary analyses and case notes by investigators. On the contrary, it is not clear to the Ombudsman that information contained in other documents, such as exchanges between OLAF and national authorities, could always be considered as “opinions for internal use... within the institution concerned”. Consequently, the Ombudsman is not convinced that the general presumption as recognised in the Strack ruling could be applied as broadly as OLAF contends.

41. Second, as regards the protection of investigations relied on by OLAF, it follows from case law that this exception to public access is limited in time.

42. The Ombudsman agrees that this exception applies during the investigation and while a reasonable time for follow-up activities to OLAF investigations has not yet elapsed. However, as the General Court made it clear in the case law referred to by OLAF, “to accept that the various documents relating to inspections, investigations or audits are covered by the exception [in question] [...] subject to an uncertain, future and possibly distant event” - that is, without a clear time limit - “would be contrary to the objective of guaranteeing public access to documents relating to possible irregularities in the management of financial interests, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers”.[32] The limited temporal scope of the exception was reiterated in recent judgments concerning OLAF[33]. It is therefore not tenable that OLAF would apply a temporally unlimited general presumption of non-disclosure of any documents linked to its investigations based on a statutory exception to public access which is clearly time-limited.[34]

43. Third, OLAF invoked by analogy case law establishing general presumptions of non-disclosure in relation to other investigations by the EU administration.[35] However, it is not clear to the Ombudsman to what extent this case law supports OLAF’s position.

44. The Ombudsman notes that the Court’s case law limits the scope of the general presumption, either in time[36] or in scope[37].

45. As the Court has underlined, the use of general presumptions “is no insignificant matter”, as they “restrict the fundamental principle of transparency”; therefore, “the use of such presumptions must be founded on reasonable and convincing grounds”.[38]

46. In view of all the above mentioned doubts about the applicability of a general presumption of non-disclosure to the entire OLAF investigation file, the Ombudsman proceeded to conduct an individual assessment of a sample of documents contained in the investigation file in this concrete case. The aim of the inspection was to verify whether the prerequisite for applying a general presumption of non-disclosure was fulfilled, namely whether all the documents in the investigation file indeed were “documents of the same nature”[39] (containing personal data, confidential sensitive commercial information, sensitive strategies and methods and information from informants or witnesses etc.).

47. Based on this individual assessment of a sample of documents in the investigation file, the Ombudsman acknowledges that many of the inspected documents contain extensive personal data and sensitive commercial information. Consequently, meaningful partial disclosure of these documents might not be possible. This concerns in particular the evidence collected by OLAF from private parties. In the Ombudsman’s view, it was reasonable for OLAF to argue that the collected evidence should be protected from disclosure because it might undermine the legitimate interests of the data subjects and named commercial entities, thereby discouraging private parties from cooperating with OLAF in the future.

48. The Ombudsman thus accepts that in this case, OLAF could reasonably argue that meaningful partial access to the vast majority of documents contained in the investigation file would not be possible due to the need to protect personal data and commercial interests. Moreover, the Ombudsman notes that, in this case, the complainant obtained meaningful partial access to the final investigation report, although some redactions might have been too extensive. In this context, the Ombudsman finds that no further inquiries are justified.

49. That said, and as noted in paragraph 40 above, the Ombudsman found that only some documents contained in the investigation file appear to be “opinions for internal use as part of deliberations and preliminary consultations”. Moreover, it could also be argued that the disclosure of some of the inspected documents would not seem to reveal sensitive “methods and strategies” that the public could not reasonably expect to take place within an OLAF investigation.[40]

50. In this context, while acknowledging that an individual assessment of the entire investigation file is challenging, the Ombudsman takes the view that OLAF could, in the future, seek to perform such an assessment, in particular when applicants request public access to documents that clearly are not covered by the general presumption of non-disclosure as recognised in the case law (“opinions for internal use as part of deliberations and preliminary consultations within the institution concerned”). In case of broad requests to the entire investigation file, OLAF could ask the applicants to specify the documents they seek access to. The Ombudsman will make a corresponding suggestion for improvement below.

Conclusion

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

No further inquiries are justified.

The complainant and OLAF will be informed of this decision.

Suggestion for improvement

OLAF should carry out an individual assessment of documents from its investigation files when applicants request public access to documents contained therein which are clearly not covered by the general presumption of non-disclosure as recognised in the case law. If needed, OLAF could ask the applicants to specify the documents they seek access to.

 

Teresa Anjinho

European Ombudsman

Strasbourg, 15/07/2025

 

[1] Under 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, OJ L 145/43, https://eur-lex.europa.eu/eli/reg/2001/1049/oj/eng

[2] Article 4(1)(b) of Regulation 1049/2001.

[3] Article 4(2), first indent, of Regulation 1049/2001.

[4] Article 4(2), third indent, of Regulation 1049/2001.

[5] Article 4(3), second subparagraph, of Regulation 1049/2001.

[6] Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08, https://curia.europa.eu/juris/liste.jsf?language=en&num=T-221/08, paragraph 160.

[7] Regulation 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (...), OJ L 248/1, https://eur-lex.europa.eu/eli/reg/2013/883/oj/eng.

[8] Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, OJ P 045/1385, https://eur-lex.europa.eu/eli/reg/1962/31(1)/2014-05-01/eng.

[9] Article 4(1)(b) of Regulation 1049/2001.

[10] Article 4(2), first indent, of Regulation 1049/2001.

[11] Article 4(3), second subparagraph, of Regulation 1049/2001.

[12] Article 4(2), third indent, of Regulation 1049/2001.

[13] Article 9(1)(b) of Regulation 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, OJ L 295/39, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[14] Case Strack v Commission, T-221/08, in particular paragraph 160.

[15] Ibid, paragraph 157.

[16] Ibid, paragraph 148.

[17] Ibid, paragraph 152.

[18] Ibid, paragraph 152-153.

[19] Ibid, paragraphs 24 and 151.

[20] Judgment of the General Court of 1 September 2021, Homoki v Commission, T-517/19, https://curia.europa.eu/juris/document/document.jsf?text=&docid=245503&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=2802978, paragraphs 61-63, and earlier case-law cited.

[21] Ibid, paragraph 56.

[22] Judgment of 26 May 2016, International Management Group v Commission, T-110/15, https://curia.europa.eu/juris/document/document.jsf?text=&docid=178781&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2803498, paragraph 25 and earlier case-law cited.

[23] Case Homoki v Commission, T-517/19, paragraphs 61-62 and earlier case-law cited.

[24] Case Strack v Commission, T-221/08, paragraph 160.

[25] Judgment of the General Court of 19 November 2014, Ntouvas v ECDC, T-223/12, https://curia.europa.eu/juris/document/document.jsf;jsessionid=F67869B2BCD58C0A18CBB8FBB384B99B?text=&docid=159783&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1109549, paragraph 28.

[26] Judgment of the Court of Justice of 28 June 2012, Commission v Agrofert Holding, C-477/10 P,  https://curia.europa.eu/juris/document/document.jsf?text=&docid=124461&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4412194, paragraph 62.

[27] Judgment of the Court of Justice of 7 March 2024, OC v. Commission, C-479/22 P, https://curia.europa.eu/juris/document/document.jsf?text=&docid=283526&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2926581.

[28] Case Strack v Commission, T-221/08, paragraphs 151-152.

[29] Ibid, paragraph 153.

[30] Ibid, paragraph 160.

[31] Ibid, paragraph 152. See also Article 4(3), second subparagraph, of Regulation 1049/2001.

[32] Case Homoki v Commission, T-517/19, paragraphs 61-62.

[33] See for example the judgment of the General Court on 12 July 2023, Eurecna v Commission, T-377/21, paragraphs 32-36, https://curia.europa.eu/juris/document/document.jsf?text=&docid=275365&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4944594; judgment of the General Court on 12 July 2023, Vendrame v Commission, T-379/21, paragraph 35, https://curia.europa.eu/juris/document/document.jsf;jsessionid=459D200C45C82F3EC8A87BFF88C6CEED?text=&docid=275367&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=477731.

[34] As regards the argument that the “purpose” of investigations should be protected, suffice it to note that the General Court used this argument to clarify the threshold of justification required of institutions when they refuse to grant public access to documents rather than extend the scope of the relevant exception. See, Case Ntouvas v ECDC, T-223/12, paragraph 27-28.

[35] See among others, judgment of 2 March 2022, Huhtamai v Commission, T-134/20, https://curia.europa.eu/juris/document/document.jsf?text=&docid=254882&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2297772, paragraph 36.

[36] Judgment of 25 September 2014, Spirlea v Commission, T-306/12, https://curia.europa.eu/juris/document/document.jsf?text=&docid=157983&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4407353, para 84-85.

[37] In case of merger investigation files, the general presumption of non-disclosure applies only to “the documents exchanged between the Commission and the notifying parties and between the Commission and third parties”, Case Commission v Agrofert Holding, C-477/10 P, paragraphs 47-70, but not to “the Commission’s internal documents”, which must be assessed individually, ibid, paragraphs 74-79.

[38] Case Spirlea v Commission, T-306/12, paragraph 52.

[39] Case International Management Group v Commission, T-110/15, paragraph 28 and the case law cited.

[40] See for instance, ‘Guidelines on Investigation Procedures for OLAF Staff’, https://anti-fraud.ec.europa.eu/system/files/2021-10/gip_2021_en.pdf.