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Failure to deal properly with requests for public access to documents [Article 23 ECGAB]

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Showing 1 - 20 of 518 results

Decision in case 1782/2019/EWM on the refusal of the European Commission to make public records of payments made to farmers under the Common Agricultural Policy

Wednesday | 06 May 2020

The case concerned a request from a journalist to the European Commission to give public access to the detailed contents of a database used to audit how Member States pay Common Agricultural Policy subsidies to farmers. The Commission stated that the database was not designed to provide the detailed individualised information sought by the complainant.

The Ombudsman inquired into the matter and, while she understood the strong public service need for detailed oversight of CAP funds, she also found that the Commission is subject to a number of legal constraints regarding public access to records of payments made to individual farmers. She considered that the Commission’s statement that the database has been designed to allow the Commission to extract aggregated data for auditing purposes only and not for the scrutiny of individual payments, was factually correct. EU access to documents rules do not require the Commission to create new search tools for the sole purpose of dealing with requests for access to the contents of a database. While she considered that the Commission gives appropriate access to the aggregated data contained in the database, she accepts the complainant’s view that a gap exists vis-a-vis the appropriate transparency of these payments. She will bring this to the attention of the legislators through the forwarding of this decision.

The Ombudsman therefore closed the inquiry with a finding of no maladministration.

Decision of the European Ombudsman in case 1050/2018/DL on the European Commission’s refusal to grant public access to an official’s e-mails relating to a legislative proposal

Wednesday | 29 April 2020

The case concerned the European Commission’s refusal to grant public access to a Commission official’s inbox and outbox correspondence relating to Article 13 of the Copyright in the Digital Single Market Directive. The Commission considered that it was not in a position to retrieve, identify and grant access to the requested e-mails based on the protection of privacy.

The Ombudsman inquired into the issue and found that e-mails of a professional nature do not constitute personal data. In addition, if the official were to identify and retrieve his own e-mails, it could certainly not be considered an act of processing personal data.

The Ombudsman therefore proposed that the Commission should require the official to identify and retrieve any relevant document that was still stored in the official’s e-mail account and should search its document register for relevant documents. After having identified the documents, the Commission should assess whether or not to disclose them in accordance with the provisions set forth by the EU rules on public access to documents.

The Commission did not accept the Ombudsman’s proposal for a solution. The Ombudsman therefore found  that the Commission’s failure to ask an official to identify and retrieve e-mails in the official’s work email in-box, so as to allow the Commission to assess whether the emails could be disclosed in response to a request for public access to document, is maladministration.

Decision in case 640/2019/TE on the transparency of the Council of the EU’s decision-making process leading to the adoption of annual regulations setting fishing quotas

Wednesday | 29 April 2020

The complaint concerned the transparency of the decision-making process in the Council of the EU, leading to the adoption of the annual regulations setting total allowable catches (TACs) of certain fish stocks in the Northeast Atlantic for 2017, 2018 and 2019. The complaint was submitted by the environmental law organisation ClientEarth.

The complainant was concerned that the Council (1) failed to record the positions of Member States expressed in Council ‘preparatory bodies’ of national civil servants and Ambassadors, as well as in meetings of the Council of Ministers, (2) failed to provide timely access to legislative documents, proactively and upon request, and (3) has in place an incomplete register of documents that is difficult to use.

The Ombudsman took the view that the documents in question are ‘legislative documents’, as defined in the EU rules on public access to documents. In addition, the documents contain ‘environmental information’ within the meaning of the Aarhus Regulation. Wider and more timely access should be granted to such documents. The Ombudsman also found that the Council had not demonstrated that disclosing the documents would seriously affect, prolong or complicate the decision-making process.

The Ombudsman therefore recommended that the Council should proactively make available documents related to the adoption of the TAC Regulation at the time they are circulated to Member States or as soon as possible thereafter.

The Council has chosen not to follow the Ombudsman’s recommendation. This is disappointing. Furthermore, it suggests the Council has failed fully to grasp the critical link between democracy and the transparency of decision-making regarding matters that have a significant impact on the wider public. This is all the more important when the decision-making relates to the protection of the environment.

The Council’s position appears to be that a key democratic standard - legislative transparency - must be sacrificed for what it considers to be the greater good of achieving a consensus on a political issue.

The Ombudsman confirms her finding of maladministration and her recommendation.