Secretariat‐General Head of Unit - C2 European Commission

 

Dear Mr X,

The Ombudsman has received a complaint against the European Commission. The complaint concerns the Commission’s refusal to give (partial) public access to documents concerning the support it provides to Cyprus in migration management and the Commission’s delays in replying to the access request at issue.

In September 2023, the complainant asked for public access to documents[1] concerning (1) the activities of the Operational Coordination Platform (OCP) in Cyprus, (2) a visit to Cyprus by DG HOME’s Deputy Director-General in July 2023, and (3) correspondence between Commission staff deployed in Cyprus and DG HOME regarding reception and accommodation facilities in Cyprus.

The complainant received a (delayed) initial reply to the access request in December 2023. The Commission identified four documents as falling within the scope of the access request, namely (1) two meeting reports of the OCP Steering Group and (2) two documents related to the visit of DG HOME’s Deputy Director-General to Cyprus in July 2023 (a briefing and a Flash Report).

After consulting the Cypriot authorities, the Commission gave partial access to the Flash Report and refused to give access to the remaining three documents in their entirety. In doing so, it invoked exceptions under the EU legislation on access to documents[2], arguing that (full) disclosure was prevented by the need to protect public security[3], international relations[4] and its ongoing decision-making[5]. The Commission added that it did not identify any documents falling within the scope of the third aspect of the complainant’s access request.

The complainant then asked the Commission to review its decision (by making a ‘confirmatory application’), challenging the application of the exceptions, arguing that the Commission should not have consulted the Cypriot authorities and that the Commission should have granted partial access to the documents identified. In the absence of a reply within the extended time limit, which expired on 20 February 2024, the complainant turned to the Ombudsman.

We have decided to open an inquiry into the complaint against the Commission’s implicit decision to refuse access under Regulation 1049/2001.

As a first step, we consider it necessary to review the following documents at issue in this case:

• the documents falling within the scope of the complainant’s access request;
• any documentation relating to the consultation of the Cypriot authorities at initial and confirmatory stage (to the extent that it exists).

We would be grateful if the Commission could send us copies of these documents, preferably in electronic format through encrypted e-mail,[6] by 24 May 2024. For the partially disclosed document, we would be grateful to receive a marked copy indicating which parts were disclosed to the complainant and which were not, and the reasoning for the redactions.

We note that the extended time limit for the Commission to issue a response to the complainant’s confirmatory request expired in February 2024. We therefore urge the Commission, if it has not done so in the meantime, to provide the complainant with a confirmatory response, and to send us a copy of that response, by 7 June 2024.

Similarly, should the Commission wish to provide additional views, to be taken into account by the European Ombudsman during this inquiry, we would be grateful if they could be provided to us by 7 June 2024 as well.

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 inquiries officer responsible for the case is Ms Paulien Van de Velde-Van Rumst.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 16/05/2024

 

[1] From 1 February 2023 to the date of the request.

[2] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[3] Article 4(1)(a) first indent of Regulation 1049/2001.

[4] Article 4(1)(a) third indent of Regulation 1049/2001.

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

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