Head of the Inspection and Control Office European Border and Coast Guard Agency

 

 

Dear Mr X,

The Ombudsman has received a complaint against the European Border and Coast Guard Agency (Frontex).

On 5 June 2024, Frontex registered[1] three public access requests for documents related to human rights assessments relevant to the protection of migrants and asylum seekers rights in Türkiye. More specifically, the requests covered:

(1) “Any fundamental rights impact assessment or report (including all draft, preparatory notes, annexes) related to Turkey and Frontex cooperation or operational activities involving Turkey, such as JO Poseidon” in a timeframe from 1 January 2022 to 31 May 2024 (the first request);

(2)  “Any document produced by the Fundamental Rights Office of Frontex on the human rights situation in Türkiye in relation to the protection of migrants and asylum seekers rights”, 1 January 2021 to 31 May 2024 (the second request);

(3)  “All correspondance (emails including any file attached, copy of letters) between the FRO and the Executive Director, and between FRO and the members of the Executive Management Bureau of Frontex, and between FRO and the Management Board Secretariat, related to the human rights situation and to the protection of migrants and asylum seekers rights in Türkiye”, from 1 January 2021 to 31 May 2024 (the third request).

In its initial replies, Frontex stated that it did not hold such documents. The complainant asked Frontex to review its decisions by submitting three confirmatory applications, registered by Frontex on 5 July 2024.

On 9 August 2024, in its confirmatory decisions regarding the first and third requests, Frontex confirmed that it did not hold any documents. Frontex also considered that the complainant had broadened the scope of its requests and that this extension is inadmissible at confirmatory stage.

Regarding the second request, Frontex identified one document at confirmatory stage, and refused access to it in its entirety invoking the protection of the public interest as regards international relations with Türkiye[2] and public security[3] as well as the disproportionate administrative burden of granting partial access. Frontex also confirmed that it did not hold more documents.

In their complaint, the complainant brought to the attention of the Ombudsman two documents published by Frontex after they submitted their confirmatory applications:

• The first document is a report entitled “Cooperation between Frontex and third countries in 2023” published on 12 July 2024[4], in which it is mentioned, notably, that the Fundamental Rights Office of Frontex assessed, in 2023, the fundamental rights situation in several countries, including Türkiye.
• The second document is the FRO 2023 Annual Report, published on 10 July 2024[5], in which a table “shows the human rights impact assessments delivered by the Fundamental Rights Office in 2023” and lists two assessments regarding Türkiye delivered in 2023.

We have decided to open an inquiry into the complaint against Frontex’s decision under Regulation 1049/2001 refusing access to the document identified in response to the second request, and Frontex’s decisions confirming that Frontex does not hold other documents falling within the scope of the three requests.

As a first step, we consider it necessary to review the document identified. We would be grateful if Frontex could provide the document identified as falling within the scope of the second request, preferably in electronic format through encrypted e-mail,[6] by 5 September 2024. We would be grateful to receive a marked copy indicating which parts were covered by the exceptions invoked and which were not.

The document subject to the public access request will be treated confidentially, along with any other material Frontex 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.

In light of the content of the documents published by Frontex after the confirmatory applications were submitted (as referred to above), we consider it necessary that Frontex carry out a renewed search for documents taking into account these factual elements. 

If, following this renewed search, Frontex identifies more documents falling within the scope of the requests, we would ask that Frontex shares them with us to review.

If Frontex does not identify more documents, we would be grateful if Frontex could provide explanations, taking into account, notably, the facts referred to above that were brought to the attention of the Ombudsman in the complaint.

We would be grateful if Frontex could carry out this renewed search and provide us with the relevant documents or explanations referred to above within fifteen working days from the receipt of this letter, that is, 19 September 2024.

The inquiries officer responsible for the case is Alice Bernard.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 29/08/2024

 

[1] Registered with the following references: STRAT/SGT/PAD-2024-00261, STRAT/SGT/PAD-2024-00263, STRAT/SGT/PAD-2024-00264.

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

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

[4] Frontex Public Register: https://prd.frontex.europa.eu/document/cooperation-between-frontex-and-third-countries-in-2023/ , see page 10.

[5] https://www.frontex.europa.eu/assets/FRO_Reports/The_Fundamental_Rights_Officer_Annual_Report_2023.pdf ; https://www.frontex.europa.eu/media-centre/news/news-release/fundamental-rights-2023-annual-report-I9Eodz

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