Case title: How the European Commission dealt with a request for public access to documents related to EU environmental strategy and legislation

Date: Monday, 28 November 2022

Remote inspection arrangements

Present

European Commission:

- Member of Cabinet

- Thematic Officer, Directorate-General for International Partnerships (DG INTPA)

- Head of sector, DG INTPA

- Deputy Head of Unit, Secretariat-General

- Legal and Policy Officer, Secretariat-General

- Legal and Policy Officer, Secretariat-General

- Senior Expert, Secretariat-General

European Ombudsman:

- Peter Dyrberg, Inquiries and Process Expert

- Tereza Mandjukova, Inquiries Officer

- Markus Spoerer, Member of Cabinet

- Raya Dimitrova, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain more information on how the European Commission dealt with the complainant’s request for public access to documents related to EU environmental strategy and legislation (GESTDEM 2022/1405). In particular, the Ombudsman inquiry team sought to obtain further information on the matter concerning the complainant’s request for public access to three specific emails.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the Commission’s representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the Commission’s prior consent.^[1]

The Ombudsman inquiry team explained that they would draw up a report on the meeting, which will be shared with the complainant for comments. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

The Commission representatives recalled the criteria that the Commission applies for the registration of emails in its document management system. In this case, the Commission did not consider that the three emails met the registration criteria. Rather, the Commission considered that the emails contained informal exchanges and preliminary positions of staff members, which were superseded by a final document, which in turn was adopted according to the relevant procedure and the final version of the document is registered. The Commission representatives said that only documents, which are registered in its document management system,[2] are considered as ‘documents’ within the meaning of Regulation 1049/2001 (the Regulation).[3]

The Commission representatives confirmed that, at the time of the complainant’s initial application in March 2022, the Commission had retrieved the three emails and once again verified whether they meet the Commission’s criteria for registration in its document management system. The Commission confirmed its initial assessment that the emails did not meet the registration criteria as they concerned informal exchanges within the Commission prior to the final adoption of policy documents by the College of Commissioners. Therefore, no assessment had been made whether the emails could be disclosed under the Regulation.

Conclusion of the meeting

The Ombudsman inquiry team thanked the participants for their time and for the explanations provided. The meeting then ended.

Following the meeting, the Commission provided the Ombudsman with additional documents, which the inquiry team requested during the meeting. The Commission asked the Ombudsman to keep the list of documents received confidential at this stage. The Ombudsman disagrees that the list cannot be disclosed. However, in order not to delay the inquiry because of this issue and as the Commission agrees that the Ombudsman can mention the names/titles of the documents later, when making her findings in the case, the Ombudsman exceptionally accepts the Commission's view.

The Commission considers the contents of the documents confidential. It follows that they cannot be disclosed to the complainant without the Commission's consent, in accordance with the Ombudsman’s Statute.

 

Brussels/Strasbourg, 5 December 2022

 

Peter Dyrberg                                                                                                                                                          Tereza Mandjukova  

Inquiries and Process Expert                                                                                                                            Inquiries Officer

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] The Commission outlined its different registration tools for different types of documents (e.g. ARES, comitology register).

[3] The Commission referred to Decision (EU) 2021/2121 of 6 July 2020 on records management and archives, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D2121 and its Guidelines on documents registration.