The case concerned a request for public access to documents held by the European Union Agency for Asylum (EUAA) concerning conditions for unaccompanied minors in EU-funded refugee facilities in Greece. The EUAA identified 53 documents as falling within the scope of the request and granted partial access to all of them. In refusing full access, the EUAA invoked several exceptions to the right of public access to documents, based on the protection of privacy and the integrity of individuals, its decision-making process and the public interest as regards public security. In particular, the EUAA argued that the requested documents contain sensitive information about individuals staying in specific facilities and preliminary information about the situation in these facilities, provided by national authorities on a confidential basis. The disclosure of the latter information could undermine the trust of these authorities towards the EUAA and, consequently, the EUAA’s decision-making processes and public security.

Dissatisfied with this reply and the applied redactions, the complainant turned to the Ombudsman.

The Ombudsman inquiry team inspected the unredacted versions of the requested documents and discussed the applied redactions with EUAA representatives. Based on this, the Ombudsman accepted the EUAA’s arguments regarding the need to protect the privacy and integrity of particularly vulnerable individuals staying in specific facilities. She also acknowledged the EUAA’s wide margin of discretion in applying the exception concerning public security, which could be adversely affected if the EUAA disclosed information shared by the national authorities in confidence, thereby discouraging them from closely cooperating with the EUAA and its deployed staff. Moreover, in view of the sensitive working conditions of EUAA staff deployed to assist the national authorities, the Ombudsman considered that the EUAA could reasonably seek to protect its staff’s comments relating to specific facilities, based on the exception concerning the protection of the EUAA’s decision-making process.

That said, the Ombudsman was not entirely convinced by all the EUAA’s justifications regarding the applied redactions and their consistency. However, given the wide partial access that the EUAA had already granted to the requested documents, the Ombudsman found that no further inquiries into this complaint were justified. She therefore closed the case, making one suggestion for improvement.

 

The case concerned a request for public access to ‘model cards’ related to the European Union Agency for Law Enforcement Cooperation’s (Europol) artificial intelligence (AI) tools. Model cards contain information on the AI tools’ intended use and their evaluations. Europol identified four documents as falling within the scope of the request. It refused access to three documents in their entirety and gave partial access to the remaining document. In doing so, Europol relied on the need to protect the public interest as regards public security.

The Ombudsman inquiry team inspected the documents at issue and met with Europol representatives. Based on this and considering the wide margin of discretion that EU institutions and agencies enjoy where they consider that public security is at risk, the Ombudsman found that Europol’s decision to refuse (full) public access was not manifestly wrong. Given that the public interest at stake cannot be superseded by another public interest that is deemed more important, the Ombudsman closed the inquiry finding no maladministration.

The Ombudsman considered, however, that Europol’s explanations provided to the complainant as to why (full) access to these documents had to be refused could have been more specific, and referred to a previous suggestion for improvement she made in this regard. 

 

The complainant asked the European Commission for public access to documents concerning its exchanges with the Hungarian government on judicial independence in the context of the Commission's assessment of Hungary's eligibility for cohesion funds. After consulting with the Hungarian authorities, the Commission refused access to some of the documents, invoking two exceptions under the EU legislation on public access to documents. More specifically, the Commission argued that disclosure would undermine the purpose of its investigation as regards Hungary’s eligibility for cohesion funds and its decision-making process. The complainant asked the Commission to review its decision (by making a ‘confirmatory application’). When the Commission did not reply within the applicable time limits, the complainant turned to the Ombudsman.

The Ombudsman opened an inquiry into the Commission’s implicit refusal to grant public access to the requested documents. During the Ombudsman's inquiry, the Commission adopted its confirmatory decision. It maintained its decision to withhold access but invoked an additional exception, arguing that the European Parliament had initiated court proceedings concerning the matter in the meantime, and disclosure could undermine these ongoing proceedings.

The Ombudsman’s inspection showed that the requested documents contain Hungary’s self-assessment, formal questionnaires sent by the Commission to the Hungarian authorities, and the official replies from the relevant Hungarian authorities to those questions. The requested documents thus form the basis of the Commission’s decision against which Parliament initiated court proceedings. They were neither drawn up for the purpose of the specific court proceedings, nor do they contain internal legal positions on contentious issues throughout.

The Ombudsman took the view that the Commission had not sufficiently demonstrated how disclosing the documents could undermine the court proceedings in question. The Ombudsman was also not convinced by the Commission’s argument that disclosure could undermine its investigation. In addition, the Ombudsman stressed the importance of informing the public of the Commission and the Hungarian authorities’ actions to protect the financial interests of the EU and to ensure that the rule of law is respected. Therefore, the Ombudsman considered that the Commission’s refusal to grant wide public access to the requested documents constituted maladministration and recommended that the Commission reconsider its position on the access request.

In reply, the Commission confirmed its position that disclosure of the requested documents would undermine the serenity of the court proceedings brought by Parliament and its investigation as regards Hungary’s eligibility for cohesion funds. However, the Ombudsman found that the Commission did not provide convincing explanations as to why no wider access could be given to these documents. Therefore, the Ombudsman confirmed her finding of maladministration and closed the case.

The case concerned a request for public access to the reasoned opinion that the European Commission sent to Belgium in the context of an infringement procedure regarding its transposition of the Whistleblower Protection Directive.

The Commission refused access to the document, which forms part of the file for an ongoing infringement procedure. In doing this, the Commission relied on a general presumption of non-disclosure, based on the need to protect the purpose of an ongoing investigation. Dissatisfied with this outcome, the complainant turned to the Ombudsman.

While the Ombudsman considered that adequate protection of whistleblowers is essential, she found, based on the inspection of the document at issue, that the Commission was justified in relying on the general presumption of non-disclosure to refuse access to the document. She therefore closed the case.

The case concerned the refusal by the European Union Agency for Cybersecurity (ENISA) to give public access to documents related to an investigation by the European Anti-Fraud Office (OLAF) into misconduct by one of its staff members. In refusing access, ENISA relied on an exception under the EU legislation on public access to documents, arguing that disclosure would undermine the need to protect the privacy and integrity of the individuals mentioned in the documents, including the person concerned by the OLAF investigation.

The Ombudsman found that the complainant had not established a need for disclosure of the personal data in the public interest, as required by the EU legislation on data protection. ENISA had therefore been justified in refusing to disclose any personal data contained in the documents at issue. However, based on the arguments put forward by ENISA, the Ombudsman was not convinced that the documents at issue constituted personal data in their entirety. She therefore proposed that ENISA re-consider its position that access had to be refused to the documents in full.

In response, ENISA conducted a renewed assessment of the documents at issue. Based on this, it maintained its position that the documents contain personal data throughout and, thus, that no public access could be granted. In light of the additional information that ENISA provided at that stage, the Ombudsman accepted that the documents could reasonably be considered to constitute personal data in their entirety. She therefore closed her inquiry finding that ENISA had accepted the proposal for a solution. The Ombudsman suggested, however, that ENISA should, as a matter of good administration, provide the requester with a list of the documents it identifies when dealing with a request for public access to documents.