Strasbourg, 9 November 2005

Dear Mr X.,

On 17 May 2005, you made a complaint to the European Ombudsman against the Council of the European Union. This complaint concerned the Council's handling of a request for access to documents that you had made on 10 March 2005 and its handling of your confirmatory application of 24 March 2005.

On 26 May 2005, I forwarded the complaint to the Secretary General of the Council of the European Union. The Council sent its opinion on 26 July 2005. I forwarded it to you on 29 August 2005 with an invitation to make observations, if you so wished, by 30 September 2005 at the latest. No observations were received from you by that date.

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

THE COMPLAINT

On 10 March 2005, the complainant wrote to the Council of the European Union in order to ask for access to "any documents held by the Council which relate to the negotiation and signature of the EU SOFA, OJ [2003] C 321, p. 6, including documents relating to the organisation of the negotiations", as well as to any documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. The text referred to by the complainant is the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17 (2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA).

In its reply of 21 March 2005, the Council stated that there were no documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. As regards the request for access to documents relating to the negotiation and signature of the Agreement, the Council pointed out that two kinds of preparatory documents existed: (a) a number of documents already available on the Council's website as part of the Council's register of documents; and (b) SN documents 4438/01, 4438/1/01 REV 1, 4438/4/01 REV 4 and 4438/5/01 REV 5. As regards the second group of documents, the Council granted only partial access, withholding those parts of the documents which contained legal advice.

In his confirmatory application of 24 March 2005, the complainant did not contest the Council's decision to grant only partial access to the above-mentioned documents. He submitted, however, that in view of the Agreement's scope and of the fact that the drafting process had taken over two years to complete, it was to be presumed that the Council held more than just those four documents. The complainant added that the very numbering of these documents suggested that other relevant documents existed.

In its reply of 11 May 2005, the Council declared that, "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further documents of relevance to the application had been identified. As to the gap in the numbering sequence, the Council stated that SN documents 4438/2/01 REV 2 and 4438/3/01 REV 3 "were declared void and annulled during production".

In his complaint to the Ombudsman, the complainant maintained his view that the Council's position that there were only four relevant documents was manifestly unreasonable. The complainant pointed out that a report prepared by the House of Commons European Scrutiny Committee (28th Report, HC 63-xxviii, 2 July 2003, p. 38) made it clear that the Agreement had gone through at least nine revisions. He added that, following a separate request submitted under the freedom of information legislation of one EU Member State, he had been granted access to Council document SN 4438/7/01 REV 7 of 18 March 2003.

The complainant alleged (a) that by failing either to grant total or partial access to all the documents requested, or to give reasons for refusing access to these documents, the Council had not fully complied with its obligations under Regulation 1049/2001; and (b) that in failing to do so, despite having had its attention drawn to the fact that additional documents had to exist, the Council had acted in bad faith and in direct contravention of the right secured by the Regulation.

In his application of 10 March 2005, the complainant also asked for a full and complete list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply, the Council did not address this issue. In his confirmatory application, the complainant therefore repeated his request.

In its reply of 11 May 2005, the Council submitted that, in conformity with Article 9 of the Regulation, the institution was neither obliged to divulge any detail concerning a sensitive document nor to release it to the public, unless its originator decided otherwise. According to the Council, the only obligation for the institution in this context was to indicate at the end of each calendar year the total number of documents classified as "Confidential", "Secret" and "Top Secret" during the year, in conformity with Article 17 (1) of Regulation 1049/2001.

In his complaint to the Ombudsman, the complainant submitted that the Council's position was not only wrong but also evaded the arguments that he had submitted. In the complainant's view, Article 9 (4) of Regulation 1049/2001 unambiguously established that the Council was bound to give reasons for refusing to grant access to sensitive documents, although it had to do so in a manner which did not harm the interests protected in Article 4. The complainant submitted that neither Article 9 (3) nor Article 9 (4) made the obligation to state reasons dependent on the prior consent of the originator of the sensitive document. He added that the Council was not entitled to withhold all details relating to a sensitive document, including, for example, information on whether it existed or not.

The complainant alleged (a) that the Council had failed to consider whether it had to give total or partial access to any sensitive documents, (b) that the Council had failed to give reasons why it had decided to deny access to any sensitive documents and (c) that in not addressing the specific arguments submitted to it, the Council had acted in bad faith and had failed to give proper consideration to the initial request and the confirmatory application.

THE INQUIRY

The Council's opinion

In its opinion, the Council made the following comments:

Existing revisions of document SN 4438/01

In the light of the arguments raised by the complainant and taking particularly into account the evidence provided with respect to the revised versions of document SN 4438/01, the Council had thoroughly re-examined the issue and launched new consultations within the relevant departments of its Secretariat-General.

Under the current rules, all texts submitted to the Council or to one of its preparatory bodies which

• are to serve as a basis for deliberations (for instance, notes from the Presidency or a delegation containing drafts or proposals for a compromise on a Council act, or cover notes from the General Secretariat containing drafts on which the Council or one of its preparatory bodies is called upon to express a position); or
• influence the decision-making process (for instance, contributions from a delegation to discussions on a draft referred to the Council); or
• reflect the progress made on a given subject (for instance, outcomes of proceedings and summary records of Council preparatory bodies)

must be distributed as 'ST' documents. Consequently, they are automatically tracked in the Council's document production system and (unless they are not registered in accordance with Article 9 (3) of Regulation 1049/2001) will be listed automatically on the Council's Register. Under the current rules, 'SN' documents may thus no longer be used for such purposes. Such documents are reserved exclusively for internal use within the General Secretariat for administrative purposes, such as translation. They are not to be distributed to members of the Council or to members of its preparatory bodies.

However, this system was not in force at the time when the different versions of document SN 4438/01 had been produced. In 2001, it was still possible to produce 'SN' documents for distribution to delegations. Such 'SN' documents were distributed by the department which authored them rather than by the centralised document management department.

Following intensive research, the Council could now confirm that indeed ten revisions of the document concerned had been produced, including REV 2, REV 3 and REV 6 to REV 10. These versions were not loaded onto the automated circuit which enables all Council documents to be registered and saved in the electronic archive of the institution. Therefore, these revised versions were kept in the department in charge of the matter but, as was mentioned in the reply to the confirmatory application, in the absence of evidence that such revisions had been electronically recorded and validated, they were considered void.

The Council had now discovered that, contrary to initial evidence, versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within Council's preparatory bodies.

The Council apologised to the complainant for this clerical error.

Access was granted to the revised versions REV 6 to REV 10. Revised versions REV 2 and REV 3 could not be fully released, since certain parts of them contained legal advice covered by Article 4 (2) of Regulation 1049/2001. As there was no evidence of an overriding public interest in disclosure, the Council considered that the protection of the internal legal advice outweighed the public interest in disclosure of the entire documents and that partial access was a reasonable compromise(1).

Allegedly existing sensitive documents

To begin with, the Council confirmed that no relevant sensitive documents existed. The Council pointed out that it was clear from the case-law that, where an institution asserted that a particular document to which access had been demanded did not exist, there was a presumption that it did not(2).

Moreover, the Council would like to put on record that it did not agree with the reasoning provided by the complainant. According to the case-law of the Court of Justice, Article 9 (3) of Regulation 1049/2001 meant that sensitive documents "are covered by a derogation the purpose of which is clearly to guarantee the secrecy of their content and even of their existence"(3).

The complainant's interpretation of Article 9 (4) was similarly mistaken. This provision did not in any way require a Member State(4) to acknowledge the existence of sensitive documents, let alone list them when their authors chose not to register them. It merely applied a principle from the Court of First Instance's case-law according to which it might be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and, thereby, depriving the exception of its very purpose(5).

The complainant's observations

The Council's opinion was forwarded to the complainant together with an invitation to present observations by 30 September 2005. No observations were received from the complainant by that date.

THE DECISION

1 Alleged failure to grant access to documents

1.1 On 10 March 2005, the complainant wrote to the Council of the European Union in order to ask for access to "any documents held by the Council which relate to the negotiation and signature of the EU SOFA, OJ [2003] C 321, p. 6, including documents relating to the organisation of the negotiations", as well as to any documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement, under Regulation (EC) No 1049/2001(6). The text referred to by the complainant is the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17 (2) of the EU Treaty, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA).

In its reply of 21 March 2005, the Council stated that there were no documents relating to the implementation of Articles 18(2)(b) and 19(4) of the Agreement. As regards the request for access to documents relating to the negotiation and signature of the Agreement, the Council pointed out that two kinds of preparatory documents existed: (a) a number of documents already available on the Council's website as part of the Council's register of documents; and (b) SN documents 4438/01, 4438/1/01 REV 1, 4438/4/01 REV 4 and 4438/5/01 REV 5. As regards the second group of documents, the Council granted only partial access, withholding those parts of the documents which contained legal advice.

In his confirmatory application, the complainant did not contest the Council's decision to grant only partial access to the above-mentioned documents. He submitted, however, that in view of the Agreement's scope and of the fact that the drafting process had taken over two years to complete, it was to be presumed that the Council held more than just those four documents. The complainant added that the very numbering of these documents suggested that other relevant documents existed.

In its reply of 11 May 2005, the Council declared that, "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further documents of relevance to the application had been identified. As to the gap in the numbering sequence, the Council stated that SN documents 4438/2/01 REV 2 and 4438/3/01 REV 3 "were declared void and annulled during production".

1.2 In his complaint to the Ombudsman, the complainant maintained his view that the Council's position that there were only four relevant documents was manifestly unreasonable. The complainant pointed out that a report prepared by the House of Commons European Scrutiny Committee (28th Report, HC 63-xxviii, 2 July 2003, p. 38) made it clear that the Agreement had gone through at least nine revisions. He added that, following a separate request submitted under the freedom of information legislation of one EU Member State, he had been granted access to Council document SN 4438/7/01 REV 7 of 18 March 2003.

The complainant alleged (a) that by failing either to grant total or partial access to all the documents requested, or to give reasons for refusing access to these documents, the Council had not fully complied with its obligations under Regulation 1049/2001; and (b) that in failing to do so, despite having had its attention drawn to the fact that additional documents had to exist, the Council had acted in bad faith and in direct contravention of the right secured by the Regulation.

1.3 In its opinion, the Council pointed out that, in the light of the arguments raised by the complainant and taking particularly into account the evidence provided with respect to the revised versions of document SN 4438/01, it had thoroughly re-examined the issue and launched new consultations within the relevant departments of its Secretariat-General. Following intensive research, the Council could now confirm that indeed ten revisions of the document concerned had been produced, including REV 2, REV 3 and REV 6 to REV 10. The Council explained that these versions had not been loaded onto the automated circuit which enabled all Council documents to be registered and saved in the electronic archive of the institution. Instead, these revised versions had been kept in the department in charge of the matter but, as was mentioned in the reply to the confirmatory application, in the absence of evidence that such revisions had been electronically recorded and validated, they had been considered void. The Council noted that in 2001, when the different versions of document SN 4438/01 had been produced, it was still possible to produce 'SN' documents for distribution to delegations. It stressed, however, that the rules had since changed and that such documents would now have to be distributed as 'ST' documents that would (apart from those cases in which they are not registered in accordance with Article 9 (3) of Regulation 1049/2001) be listed automatically on the Council's Register.

The Council apologised to the complainant for this clerical error. It added that access was granted to the revised versions REV 6 to REV 10 and that partial access was granted to the revised versions REV 2 and REV 3, since certain parts of these latter documents contained legal advice covered by Article 4 (2) of Regulation 1049/2001. The Council provided copies of the documents that were disclosed to the Ombudsman.

1.4 No observations were received from the complainant.

1.5 The Ombudsman takes the view that it is appropriate to distinguish between substance and procedure as regards the way in which the Council dealt with the complainant's request for access to documents.

1.6 As regards the substance of the matter, the Ombudsman notes that, after the complainant had made his request for access to documents, the Council disclosed document SN 4438/01 and the revised versions REV 1, REV 4 and REV 5 to him. In its opinion on the present complaint, the Council acknowledged that there had been ten revisions of document SN 4438/01 and it made revised versions REV 6, REV 7, REV 8, REV 9 and REV 10 and parts of revised versions REV 2 and REV 3 available to the complainant. The Ombudsman notes that the complainant did not dispute the Council's implicit claim that these were all the documents that were available or challenge the Council's view that only partial access could be granted to the revised versions REV 2 and REV 3, since they contained legal advice covered by Article 4 (2) of Regulation 1049/2001. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries as regards the substance of this allegation.

1.7 As regards procedural aspects, principles of good administrative behaviour require that requests for access to documents made under Regulation 1049/2001 be dealt with properly and carefully. In the present case, the Ombudsman notes that, in its reply to the complainant's confirmatory application, the Council stated that "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations", no further documents of relevance to the application had been identified. However, in its opinion, the Council stated that the revised versions REV 2, REV 3 and REV 6 to REV 10 were kept "in the department in charge of the matter". It should further be noted that the complainant has explicitly argued, in his confirmatory application, that there had to be more than the few documents that the Council had disclosed in reply to his initial request for access. The Ombudsman therefore fails to understand why these documents were not identified when the complainant's request for access was dealt with or, at the very least, when the Council examined the confirmatory application. The only explanation that the Council has offered is that these revised versions had been considered void in the absence of evidence that they had been electronically recorded and validated. However, the Council has not explained why a document of the type concerned should be considered valid only if it has been electronically recorded and validated. The Ombudsman further notes that, in its reply to the complainant's confirmatory application, the Council stated that the revised versions REV 2 and REV 3 "were declared void and annulled during production" In the Ombudsman's view, this statement was misleading since it created the (incorrect) impression that the documents concerned had never been distributed. In its opinion, the Council stated that it had discovered that, "contrary to the initial evidence", the revised versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within the Council's preparatory bodies. However, the cover sheets of all the documents concerned already make it clear that these documents were meant to be distributed to the parties concerned and that they had been drawn up as a result of certain meetings. The Ombudsman therefore fails to understand how the "department in charge of the matter" could have assumed that these documents had not been distributed and had even been declared void.

In view of the above, the Ombudsman takes the view that the Council's failure to deal with the complainant's request for access to documents properly and carefully constituted maladministration.

1.8 In its opinion, the Council has apologised to the complainant "for the clerical error" that in its view had occurred. The Ombudsman considers that the maladministration that he has identified in the present case is more serious than that, even though there is no evidence to support the complainant's view that the Council has acted in bad faith. However, the Ombudsman also notes the Council's explanations that its internal rules have changed since the documents concerned by the complainant's request for access were drafted. The Ombudsman understands the Council's position as meaning that problems of the sort identified in the present case would no longer occur under the new rules. In view of these circumstances, the Ombudsman considers that making a critical remark is the most appropriate way of dealing with the maladministration that has occurred and that no further action is required on his part.

2 Alleged failure to grant access to sensitive documents

2.1 In its application of 10 March 2005, the complainant had also asked for a full and complete list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply to the complainant's confirmatory application, the Council submitted that, in conformity with Article 9 of the Regulation, the institution was neither obliged to divulge any detail concerning a sensitive document nor to release it to the public, unless its originator decided otherwise. According to the Council, the only obligation for the institution in this context was to indicate at the end of each calendar year the total number of documents classified as "Confidential", "Secret" and "Top Secret" during the year, in conformity with Article 17 (1) of Regulation 1049/2001.

2.2 In his complaint to the Ombudsman, the complainant submitted that the Council's position was not only wrong but also evaded the arguments that he had submitted. In the complainant's view, Article 9 (4) of Regulation 1049/2001 unambiguously established that the Council was bound to give reasons for refusing to grant access to sensitive documents, although it had to do so in a manner which did not harm the interests protected in Article 4. The complainant submitted that neither Article 9 (3) nor Article 9 (4) made the obligation to state reasons dependent on the prior consent of the originator of the sensitive document. He added that the Council was not entitled to withhold all details relating to a sensitive document, including for example information on whether it existed or not.

The complainant alleged (a) that the Council had failed to consider whether it had to give total or partial access to any sensitive documents; (b) that the Council had failed to give reasons why it had decided to deny access to any sensitive documents; and (c) that, in not addressing the specific arguments submitted to it, the Council had acted in bad faith and had failed to give proper consideration to the initial request and the confirmatory application.

2.3 In its opinion, the Council stressed that no relevant sensitive documents existed. The Council added that it did not agree with the reasoning provided by the complainant.

2.4 As the Council has correctly pointed out, it follows from the case-law of the Court of First Instance that "in accordance with the presumption of legality attaching to Community acts, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that it does not"(7). In the present case, the complainant has not submitted any evidence to rebut this presumption. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries into this aspect of the case.

2.5 However, a further remark will be made as regards the fact that it was only in its opinion that the Council stated that there were no sensitive documents.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

Principles of good administrative behaviour require that requests for access to documents be dealt with properly and carefully. In the present case, the complainant explicitly argued in his confirmatory application, that there had to be more than the few documents that the Council had disclosed in response to his initial request. The Council’s reply stated that "following a thorough examination of this confirmatory application in the light of the applicant's arguments and following the result of new internal consultations" no further documents of relevance to the application had been identified. However, in its opinion to the Ombudsman, the Council stated that the revised versions REV 2, REV 3 and REV 6 to REV 10 were kept "in the department in charge of the matter". The only explanation that the Council has offered as to why the documents were not identified earlier is that they had been considered void in the absence of evidence that they had been electronically recorded and validated. However, the Council has not explained why a document of the type concerned should be considered valid only if it has been electronically recorded and validated. Furthermore, the Council’s reply to the complainant's confirmatory application also stated that the revised versions REV 2 and REV 3 "were declared void and annulled during production", thus wrongly implying that the documents concerned had never been distributed. In its opinion, the Council stated that it had discovered that, "contrary to the initial evidence", the revised versions REV 2, REV 3 and REV 6 to REV 10 had been distributed within the Council's preparatory bodies. However, the cover sheets of all the documents concerned already make it clear that these documents were meant to be distributed to the parties concerned and that they had been drawn up as a result of certain meetings.

In view of the above, the Ombudsman fails to understand why the documents in question were not identified when the complainant's request for access was dealt with or, at the very least, when the Council examined the confirmatory application. Nor does the Ombudsman understand how the "department in charge of the matter" could have assumed that these documents had not been distributed and had even been declared void. The Ombudsman therefore takes the view that the Council failed to deal with the complainant's request for access to documents properly and carefully. This constituted maladministration.

In its opinion, the Council explained that its internal rules had changed since the documents concerned by the complainant's request for access had been drafted. The Ombudsman understands the Council's position as meaning that problems of the sort identified in the present case would no longer occur under the new rules. In view of these circumstances, the Ombudsman considers that making a critical remark is the most appropriate way of dealing with the maladministration that has occurred and that no further action is required on his part. The Ombudsman therefore closes the case.

The Secretary General of the Council will also be informed of this decision.

FURTHER REMARKS

In his request for access to documents of 10 March 2005, the complainant asked for a list of all those documents to which the Council might decide to refuse access, including 'sensitive documents' within the meaning of Article 9 of Regulation 1049/2001. In its reply, the Council did not address this issue. In his confirmatory application, the complainant therefore repeated his request. In its reply of 11 May 2005, the Council basically took the view that it was under no obligation to divulge any information concerning sensitive documents. It was only in its opinion on the present complaint that the Council stated that there were no such sensitive documents in the present case.

The Ombudsman considers that it would be useful if in future cases the Council could provide such information to applicants as soon as possible.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Copies of the relevant documents were enclosed with the opinion. The Council noted that in order to ensure that access was granted as soon as possible, it had sent a further copy of these documents directly to the complainant.

(2) Case T-311/00 BAT (Investments) Ltd v Commission [2002] ECR II-2781, paragraph 35. See also Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005 (not yet reported), paragraph 29.

(3) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005 (not yet reported), paragraph 95.

(4) The Ombudsman presumes that the reference to "a Member State" is erroneous and should rather be to "an institution".

(5) Case T-204/99 Mattila v Council [2001] ECR II-2265, paragraph 87 and Case T-405/03 Sison, cited above, paragraphs 60-62.

(6) Regulation (EC) No 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 2001 L 145, p. 43.

(7) Case T-311/00 BAT (Investments) Ltd v Commission [2002] ECR II-2781, paragraph 35. See also Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgement of 26 April 2005, paragraph 29.