Secretariat‐General Head of Unit - C2 Ethics, Good Administration & Relations with the European Ombudsman European Commission

 

 

Dear Mr X,

Following the Ombudsman’s closure of her inquiry into case 1996/2022/NH, the complainant has turned to us again contesting the Commission’s refusal to provide wider access to the documents at confirmatory stage. We have decided to open an inquiry into the Commission’s refusal to grant access under Regulation 1049/2001.

In May 2022, the complainant asked for public access to documents regarding third party monitoring of the EU’s operations in Libya. His request aimed to verify the veracity of a statement made by a representative of the Commission according to which "So far, the contractor didn't report any violations of do no harm principle”[1]. The Commission initially identified six documents and refused access on the basis that the disclosure would undermine (i) the protection of the public interest as regards international relations[2] and (ii) the protection of an ongoing decision-making process[3].

In August 2022, the complainant made a confirmatory application, arguing that the Commission must give concrete and specific reasons as to why disclosure of a given document could undermine the interest protected by the exception invoked.

In the absence of a confirmatory decision in November 2022, the complainant turned to the Ombudsman who opened an inquiry into the Commission’s failure to issue a confirmatory reply (case 1996/2022/NH). In January 2023, in the absence of notable progress in the adoption of the confirmatory decision, the Ombudsman inspected the documents at issue. This led the Ombudsman to inform the Commission in March 2023 that “the Commission’s refusal to disclose the documents without detailed and convincing reasoning is problematic”. 

On 1 October 2023, the Commission adopted the confirmatory decision and the Ombudsman closed inquiry 1996/2022/NH as a result. As signalled above, we have now opened an inquiry into the Commission’s refusal to grant access under Regulation 1049/2001.

As first step, we consider it necessary to review the documents at issue, to the extent that they differ from those already inspected in case 1996/2022/NH. Our understanding is that most of the documents listed in the confirmatory decision correspond to those we have inspected in the context of case 1996/2022/NH. However, “Document 6.2” is described in the confirmatory decision as a report dated from December 2021, while the reports corresponding to “Document 6” in the initial reply are dated January 2022. We would thus welcome any clarifications regarding whether new documents were identified at confirmatory stage and whether any document identified initially was subsequently considered out of scope.

For the documents now disclosed partially, we would be grateful to receive the marked copies, indicating which parts were not disclosed to the complainant and the exceptions invoked in relation to the redactions.

The confirmatory decision mentions the consultation of the contractor as per Article 4(4) of Regulation 1049/2001. We also consider it necessary to review the documents relating to the third party consultations carried out in this context.

We would be grateful if the Commission could provide the documents referred to above, preferably in electronic format through encrypted e-mail,[4] by 8 November 2023.

The documents subject to the public access request will be treated confidentially, along with any other material the Commission chooses to share with us that it marks confidential. Documents of this kind will be handled and stored in line with this confidential status and will be deleted from the Ombudsman’s files shortly after the inquiry has ended.

The Commission set out its position in the confirmatory decision of 1 October 2023. However, should the Commission wish to provide additional views, to be taken into account by the Ombudsman during this inquiry, we would be grateful if they could be provided to us within fifteen working days from the receipt of this letter, that is by 22 November 2023.

A meeting between the Commission and the Ombudsman inquiry team at which we can discuss this case could be envisaged at a later stage.

The inquiries officer responsible for the case is Alice Bernard.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 27/10/2023

 

[1] See Complaint 2089/2023/ACB attached.

[2] Article 4(1)(a), third indent of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN. 

[3] Article 4(3) first paragraph of Regulation 1049/2001.

[4] Encrypted emails can be sent to our dedicated mailbox.