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).

In May 2024, the complainant made a public access to documents request to Frontex, asking for documents related to the Joint Operation (JO) Opal Coast. Clarifications received from the complainant showed that he wanted access to:

1. The operational plan (including all annexes) - most recent version;

2. The handbook to the operational plan (including all annexes) - most recent version;

3. All variables recorded in the JORA reporting system for incidents from 1.12.2021 to 21.05.2024;

4. A list of all air assets involved from 1.12.2021 to 21.05.2024, with the period of time the equipment and assets were active.

In June 2024,[1] Frontex (i) gave partial access to a document related to point 3 above, namely an excel file with the JORA database extraction related JO Opal Coast for the period December 2021 to January 2024, and (ii) refused access to four documents (without listing them) related to points 1, 2 and 4 above, invoking the exception for the protection of the public interest as regards public security.

The complainant challenged Frontex’s decision by making a confirmatory application.

In August 2024,[2] Frontex issued a confirmatory decision maintaining its initial position. As regards the document identified under point 3, no further partial access was granted, based on the need to protect the public interest as regards public security. As regards the four documents identified under points 1, 2 and 4, no access was granted based on the need to protect the public interest as regards public security and to protect Frontex’s decision-making process.

The complainant would like Frontex to give wider partial access to the JORA database extraction, that is to disclose data for more variables - as the absolute minimum the data for five additional variables.[3] Furthermore, the complainant would like to receive at least partial access to the four documents refused in their entirety.

We have decided to open an inquiry into the complaint against Frontex’s decision to refuse (full) access under Regulation 1049/2001.

Regulation 1049/2001 states that applications for access should be handled promptly. It is in line with this principle that the Ombudsman also seeks to deal with cases such as this as quickly as possible.

We consider it necessary to review the documents at issue, namely (i) the four documents to which access was refused in their entirety and (ii) the complete version of the document partially disclosed. I would be grateful if Frontex could provide copies of these documents, preferably in electronic format through encrypted e-mail,[4] by 5 September 2024.

For the four documents for which access was refused in full, we would be grateful if you could list them, with the title, date and the relevant reference number of each. Please note that we are likely to share this list with the complainant.

The documents 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.

Frontex’s position has been set out in its confirmatory response. However, we would appreciate if Frontex could provide additional views, to be taken into account by the European Ombudsman during this inquiry.

In particular, we would like Frontex to address the complainant’s argument as regards the document partially disclosed that is, why additional variables were disclosed in the past following other public access requests, compared with what was disclosed to the complainant. In addition, we would appreciate if Frontex could explain if and how the disclosure of the five additional variables of interest to the complainant would harm the interests invoked by Frontex to refuse wider access.

We would be grateful if Frontex could provide its additional views within fifteen working days from the receipt of this letter, that is, by 19 September 2024.

The inquiries officers responsible for the case are Mr Nicholas Hernanz  and Ms Oana Marin.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 29/08/2024

 

[1] ref: PAD-2024-00250

[2] ref: PAD-2024-00301

[3] 'detection date', 'detection - member state', 'interception - asset', 'interception place', 'transport type'

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