THE BACKGROUND TO THE COMPLAINT

1. The complaint concerns OLAF's handling of a case involving suspected irregularities and fraud, which the complainant brought to its attention in November 2004. The allegations in the above case concerned a project funded by the European Commission, which was designed to raise awareness of EU environmental policies among the non-governmental organisations in the twelve applicant countries. Based on the information provided by the complainant, OLAF decided to open an investigation into the matter and carried out two on-the-spot investigations. In early 2007, OLAF sent a letter to the complainant informing him that, since his allegations could not be substantiated, its Executive Board recommended that the case be closed.

THE SUBJECT-MATTER OF THE INQUIRY

2. In his complaint to the Ombudsman of 13 March 2007, the complainant alleged that OLAF failed properly to inform him of the outcome of its investigation into the case he had brought to its attention. In addition, he claimed that OLAF should send him the final report on the case.

THE INQUIRY

3. OLAF submitted an opinion on the Ombudsman's inquiry (in English) on 24 July 2007, and supplied a German translation thereof on 8 August 2007. OLAF's opinion was sent to the complainant for his observations. He refrained from making any.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged failure to properly inform the complainant of the outcome of OLAF's investigation into the case he brought to its attention and related claim

Arguments presented to the Ombudsman

4. The complainant alleged that OLAF failed properly to inform him of the outcome of its investigation into the case he had brought to its attention. In support of this allegation, he stated that, initially, the investigators were convinced there was a real case. However, at a later stage, they suddenly changed their view and closed the investigation. The complainant also stated that OLAF's letter informing him of its Executive Board's recommendation to close the case was neither dated nor signed. He added that, although the investigators promised to send him a detailed report on the case, OLAF informed him later by telephone that he did not have a right to receive such a report, and denied having promised him that. Consequently, the complainant claimed that OLAF should send him the final report on the case.

5. In its opinion, OLAF explained that, on the basis of the information gathered in the course of its investigation, it concluded that there was no evidence of serious irregularities or fraud in this case. For this reason, it informed the complainant by letter that the investigation had been finalised and that its Executive Board had recommended that the case be closed without further action. OLAF emphasised that the letter was signed and dated 27 February 2007, and provided a copy of it.

6. OLAF further explained that there is no legal basis for providing an informant with privileged access to its case files. Like any other citizen, the informant may only request access on the basis of Regulation 1049/2001(1). In addition, a data subject may request access to his/her own personal data, in accordance with Article 13(c) of Regulation 45/2001(2). Although the complainant never made a formal written request for access under either of the above Regulations, OLAF declared that it was willing to treat his claim in the same manner as it would treat requests for access made under those Regulations. Accordingly, pursuant to Regulation 1049/2001, OLAF partially disclosed the Final Case Report, a copy of which it attached to its opinion after having removed certain information(3).

7. Since the Final Case Report also contained the complainant's personal data, OLAF further attached a second copy of the Report, pursuant to Article 13(c) of Regulation 45/2001. In this second copy, which was to be transmitted to the complainant alone, his own personal data were not removed.

The Ombudsman's assessment

8. First, it follows from the copy of the letter supplied by OLAF and informing the complainant of its Executive Board's recommendation to close the case that the letter was indeed dated 27 February 2007 and signed. The complainant's statement to the contrary, made in support of his allegation, is therefore not established.

9. Second, the Ombudsman welcomes OLAF's constructive and cooperative response to the present inquiry.

As OLAF pointed out, there is no legal basis for providing an informant with privileged access to its case files. In addition, there is no evidence in the file concerning the present complaint showing that the complainant submitted to OLAF any formal written request for the Final Case Report. There is no evidence either that OLAF promised to send him such a report. In spite of that, the Ombudsman is pleased to note the proactive manner in which OLAF addressed the complainant's claim in the course of the present inquiry. More specifically, he notes that OLAF made an assessment as if the complainant had made formal requests, both under Regulation 1049/2001 and under Regulation 45/2001.

10. By providing the first copy attached to its opinion, OLAF granted to the complainant partial public access to the Final Case Report, under Regulation 1049/2001. Additionally, by providing the second copy attached to its opinion, OLAF granted to the complainant partial private access to the Final Case Report, under Regulation 45/2001.

11. For all of the above reasons, the Ombudsman considers that OLAF's letter of 27 February 2007 constituted a proper way to inform the complainant that its Executive Board's had recommended that the case be closed. By providing the two versions of the Final Case Report to the complainant in the course of the present inquiry, OLAF dealt properly with his claim.

12. The Ombudsman forwarded to the complainant OLAF's opinion along with all the annexes and invited him to make observations. However, the complainant has not made use of this opportunity. The Ombudsman is thus unable to assess whether the above outcome has satisfied the complainant. Under these circumstances, the Ombudsman considers that no further inquiries are justified.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman concludes that no further inquiries are justified.

The complainant and OLAF will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 20 November 2008

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(1) 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.

(2) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p.1.

According to Article 13(c), "[t]he data subject shall have the right to obtain, without constraint, at any time within three months from the receipt of the request and free of charge from the controller (…) communication in an intelligible form of the data undergoing processing and of any available information as to their source (…)"

(3) OLAF clarified that parts of the report are covered by two of the exceptions provided for in Article 4 of Regulation 1049/2001 and therefore cannot be disclosed. These are listed below:

1. The protection of privacy and the integrity of the individual in accordance with Community legislation regarding the protection of personal data (Article 4(l)(b)): On the basis of this exception, OLAF excluded all information referring directly or indirectly to any identified or identifiable individual whose interests might have been at stake. As this disclosure under Regulation 1049/2001 was made to the general public and not only to the complainant, this exception also covered his own personal data.
2. The protection of commercial interests of a natural or legal person (Article 4(2), first indent): On the basis of this exception, OLAF excluded all information which could have undermined the commercial interests of legal entities mentioned in the report.