# Access to documents panel organised by the International Association of European journalists - Author: European Ombudsman - Date: 2024-11-20T00:00+01:00[Europe/Paris] - [URL](https://www.ombudsman.europa.eu/en/speech/en/195852) --- Good evening everyone, it is a pleasure to be here to discuss an issue that goes to the heart of EU accountability. Citizens have a treaty-based right to take part in the democratic life of the EU. This means they should have sufficient information to be able to fully scrutinise EU institutions. It also implies acceptance by those very institutions that healthy or even critical discussion strengthens democratic legitimacy. Access to EU documents is one of the paths to allowing this discussion and, on paper, the Regulation detailing how this should happen is a relatively good piece of legislation. Indeed many journalists and others use it as way to try to shed light on EU decision-making processes. Agreed in 2001, the law, known as Regulation 1049, says that citizens shall have access to documents held by an EU institution. It stipulates that what constitutes an EU document is dependent on the content and noton the medium. And, it lays down a few specific exceptions that institutions can rely on to justify not releasing a document. As European Ombudsman, I have tried to instil a culture in the EU administration whereby transparency is the starting point in any approach to decision-making and granting access to documents. The default position should be that EU documents are publically accessible and only occasionally, for a well-justified reason, they are not. This does not appear to be the approach favoured by the European Commission, which, due to its size and importance, receives the largest number of public access requests. Instead, it appears to be fearful in the extreme of allowing EU citizens to exercise their rights to criticise or try to influence decision-making. This manifests itself in a tendency to default to the exceptions for not giving out documents, particularly in relation to the protection personal data or the protection of international relations. Much less weight is given to that other gauge: whether there is an over-riding public interest in disclosure. Other problems we have seen over the course of our many inquiries in this area are weak reasoning for not releasing a document, not identifying all requested documents, or not giving access to legislative documents. And this last issue is despite EU court judgements confirming that the public has a right to access documents related to law-making. Aside from the issue of *how* the Commission responds to access requests, there is also the matter of*when* it responds. It regularly misses the deadlines contained in Regulation 1049 to the extent that my office was recently compelled to look into the delays issue in a standalone inquiry. Our findings showed that when people asked the Commission to review its initial decision - a so-called confirmatory request - there were delays in 85% of the cases. Some of these delays were such that people received the documents two years after the initial request - at which point the information contained in them is clearly no longer useful. The inquiry also showed that it was generally sensitive issues - therefore typically those issues that people want a say on - where the delays were greatest. This systemic problem led me to take the very rare step of asking the European Parliament to support my call for the Commission to tackle this delay - and it unanimously did so earlier this year. While I have highlighted the Commission as the bulk of our complaints concern it, other institutions could also improve their approach. The Council, for example, has released documents related to legislation, but only well after the particular law has been completed. Or Frontex, which works on the highly important issue of EU border management, but for which various inquiries of mine have highlighted problems in how it approaches public access requests. Another issue relates to what constitutes a document. As I mentioned earlier, the EU regulation is clear on the matter. What is important is whether the content concerns EU policy or decisions. Whether this content is written in a standard document, an email or a whatsapp message is irrelevant. This concept has yet to be accepted by the EU institutions. As I am sure you are aware, the issue is currently being tested before the European Court of Justice. The New York Times sued the Commission over its refusal to grant access to text messages sent between its president and the CEO of Pfizer concerning COVID vaccines. The newspaper filed the case after the Commission neither released the text messages nor admitted their existence following one of my inquiries. The Court had a hearing on the matter on Friday and a ruling is expected next year. I am often asked whether the EU's access to document law needs to be reformed. I believe this is perhaps not the right focus - not least because reform of the regulation may lead to a law that is weaker than the current one. In fact, the ingredients for a healthy public access regime are contained in Regulation 1049. What is missing is the political will to give it full effect. This has resulted in people failing to get timely access to documents on a range of important issues, including EU post-COVID spending, migration issues, or impact assessments for key legislation. Several things need to be happen to make Regulation 1049 a living and more useful piece of legislation for EU citizens. As a start, there should be full recognition that a document is defined by the information it contains rather than its format. Legislative documents - in other words documents that the public are entitled to see - should be defined broadly and exemptions in the regulation should only be used sparingly. And full effort should be made to respect the timeframe in the law. All of this implies a change in culture to recognise the public's right to scrutinise EU decision making. One of the criticisms often levelled at the EU is that there is insufficient accountability or that 'Brussels' - an unknown entity - takes all decisions. I have sought to debunk this myth by improving legislative transparency so that it is much more apparent that national governments shape EU law just as much as elected MEPs. However, the overall approach to access to documents certainly feeds the narrative that EU decision-making is unaccountable. Taken together, the examples of refused access represent a significant swathe of policy areas that would otherwise have received more public scrutiny. This is frustrating for the complainants who do not get the documents they are seeking and deeply problematic for the overall democratic legitimacy of the EU at a time when it is more important than ever to uphold the highest standards in transparency and accountability. I will leave it there for the moment, but I am happy to take any questions during our discussion on the matter.