THE BACKGROUND TO THE COMPLAINT

1. The complainant is a retired official of the European Commission. On 25 February 2006, he complained to the Ombudsman, essentially alleging that the Commission's decision concerning sickness insurance coverage for his wife under the Community's Joint Sickness Insurance Scheme (JSIS) was wrong (complaint 656/2006/(AE)WP). During the course of the Ombudsman's inquiry into that complaint, the complainant raised a number of new allegations.

2. Among other things, he stated that, in early 2006, he had asked for access to his medical file. Following an initial rejection of his request, access was granted. However, according to the complainant, he was only given an envelope containing 56 photocopied pages, which were allegedly put together in an arbitrary manner and handed to him at the entrance area of a Commission building.

3. In a letter dated 1 April 2006, the complainant informed the Commission that it had not provided him with a number of important documents, which should have formed part of his file. These included, in particular, documents concerning his wife's insurance situation. He described these documents and added that he had also expected to find notes or memos in the file, but these were not transmitted to him either. In addition, he asked a number of questions regarding his file. In particular, he wished to know whether the Commission kept a second medical file for him, and whether the Commission's service responsible for the matter, the Office for Administration and Payment of Individual Entitlements (PMO), had arranged to grant him access to his medical files, in line with Article 26a of the Staff Regulations. According to the complainant, he only received an acknowledgement of receipt to this letter, which made no reference to his questions.

THE SUBJECT MATTER OF THE INQUIRY

4. Against this factual background, the complainant alleged that:

1. he was not granted proper access to his medical file, given that (a) he was not given access to the file in its entirety; and (b) the practical organisation of the access was inappropriate; and
2. the Commission failed properly to reply to his letter of 1 April 2006.

5. Given that these allegations were not immediately related to the subject matter of the Ombudsman's inquiry into complaint 656/2006/(AE)WP[1], the Ombudsman decided to open a separate inquiry (complaint 699/2007/(WP)BEH).

THE INQUIRY

6. After receiving the Commission's opinion and the complainant's observations, the Ombudsman concluded that he was not yet in a position to assess fully the merits of the complainant's allegations. He therefore asked the Commission to allow his services to inspect the file to which the complainant had requested access.

7. The inspection was carried out on 21 April 2008. A copy of the inspection report was sent to the complainant, who made observations on it.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remark

8. The Ombudsman considers it appropriate to deal with the complainant's two allegations together.

A. Allegation of lack of proper access to the medical file and related issues

Arguments presented to the Ombudsman

9. As regards the complainant's allegation that (a) he was not given access to his medical file in its entirety, and (b) the practical organisation of the access was inappropriate, the Commission submitted that "the entirety of the available documents" contained in his medical file was handed to the complainant in person. These documents notably included the complainant's requests for the recognition of an illness as an occupational disease. The sickness insurance service was not able to identify the other documents to which the complainant had referred in his letter of 1 April 2006. Moreover, the service's 'help desk' and the official in charge at the settlement office conducted a number of conversations with the complainant, by telephone and in person, in order to assist him as much as possible with his request. The Commission failed to see in what respect the practical organisation of the access to the file could have been inappropriate.

10. As regards the complainant's allegation that it failed to reply properly to his letter of 1 April 2006, the Commission argued that this letter referred to the same matter as a complaint submitted under Article 90(2) of the Staff Regulations, to which it had replied by decision of 4 November 2005. Therefore, in its reply to the complainant's new letter, the Commission only referred to the said decision and informed the complainant of his rights of appeal. The Commission took the view that it replied to the complainant's letter in an appropriate manner.

11. In his observations, the complainant held that it was obvious that the 56 pages which the Commission gave him did not constitute the entirety of his medical file, since this would mean that there had been an average of 1.24 entries to his file per year. According to Article 26 of the Staff Regulations, documents on an official's file have to be registered, numbered and filed in serial order. However, this was not the case for the documents handed to him. In particular, any evidence of the development of his wife's rather unusual insurance history was missing from the file. As regards his letter of 1 April 2006, the complainant maintained that the Commission's reply to this letter did not address any of his questions.

The results of the inspection of the Commission's file

12. During the inspection of the file carried out by the Ombudsman's services, a representative of the PMO, Mr M., explained that the file to which the complainant had requested access only existed in electronic format. Therefore, printouts had been produced both in response to the complainant's application and for the purposes of the inspection. He explained that the complainant's actual medical file (hereafter: 'the actual medical file') was not held by his unit, but by the Commission's medical service. As far as medical information was concerned, the file held by his unit only contained documents submitted by the complainant himself. Furthermore, Mr M. pointed out that his unit held the documents concerning the establishment of the entitlements (droits d'affiliation) under the JSIS for the complainant and his family. Mr M. emphasised that these documents did not form part of the complainant's actual medical file.

13. The Ombudsman's representatives were shown four ring-binders. The complainant's actual medical file was not among the documents that were presented to them. Three voluminous ring-binders contained documents relating to the reimbursement of medical expenses incurred by the complainant and his family (that is, requests for reimbursement including annexes, applications for advance coverage of hospitalisation costs and related correspondence between the complainant, the Commission and the complainant's doctors). The three ring-binders contained documents relating to the years 1993 - 1999 and 2003 - 2008.

14. The fourth and less voluminous ring-binder contained documents relating to the establishment of the JSIS entitlements for the complainant and his wife. These documents covered the years 2002 and 2004 - 2006. The Ombudsman's representatives noted that this file contained, in particular:

• documents, such as revenue statements, submitted by the complainant in order to support his and his wife's claims for entitlement to JSIS insurance coverage;
• internal e-mail correspondence and notes as regards the status of the complainant's wife in terms of JSIS insurance coverage;
• the Commission's decision of 11 March 2005 in this respect; and
• correspondence between the Commission and the complainant concerning this matter.

15. When asked by the Ombudsman's representatives whether the files they were shown were complete, Mr M. confirmed that all documents concerning the complainant and his family, starting from the year 1993, which were contained in the relevant database had been printed and included in the files. He stated that the reason why there were no documents in relation to certain years might be because the complainant had been registered with another settlement office at that time. The documents generated during that period would, therefore, be held by the other office.

16. In reply to the question whether it was possible to identify the 56 pages which, according to the complainant had been given to him in response to his application for access to his file, Mr M. stated that he was not able to identify these documents because he had not handled the complainant's request at the time. However, he stressed that, given that the file only existed in electronic format, the competent service had done its best to identify the part of the file that the complainant appeared to be interested in and given him complete access to this part.

17. A copy of the inspection report was sent to the complainant. In his observations, the complainant stated that, in view of the time and effort the inspection had cost and in order to avoid further complications, he would be ready to accept a compromise solution to his complaint. In his view, the "administrative medical file", that is, the file which the Ombudsman's representatives had inspected, was as important as the actual medical file, which meant that they should be treated equally. The complainant maintained that he had not been given proper access to his file.

18. As regards the files inspected by the Ombudsman's services, the complainant noted that all documents covering the years 1963 - 1992 seemed to be missing. However, the complainant also informed the Ombudsman that he had been assured that the entirety of his actual medical file, containing all documents from 1962 onwards, was available for him at the Commission's medical service. The complainant added that he considered his access to the "administrative medical file" to be more important than his access to the actual medical file.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

19. Article 26 of the Staff Regulations provides:

"The personal file of an official shall contain: (a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct; (b) any comments by the official on such documents.

Documents shall be registered, numbered and filed in serial order ...

An official shall have the right, even after leaving the service, to acquaint himself with all the documents in his file and to take copies of them."

Article 26a of the Staff Regulations provides:

"Officials shall have the right to acquaint themselves with their medical file, in accordance with arrangements to be laid down by the institutions."

20. The Ombudsman noted that, for the purposes of the present complaint, three different types of files have to be distinguished: (a) the official's personal file, which is the object of Article 26 of the Staff Regulations; (b) the official's actual medical file, which is kept by the institution's medical service and which is the object of Article 26a of the Staff Regulations; and (c) the file kept by the PMO containing the documents relating to membership in the JSIS. The complainant referred to the latter file as the "administrative medical file". The rules applicable to these different types of files differ. Thus, for example, the institution's obligation to register and number the documents on the file in serial order would only appear to concern the official's personal file.

21. The complainant submitted the initial application for access to his file in the context of his request that his wife continue receiving primary insurance coverage under the JSIS. The Ombudsman was not provided with copies of the complainant's original request. However, given that the complainant expected to find documents relating to his wife's insurance situation on this file, the Ombudsman assumed that the complainant intended to apply for access to his "administrative medical file" and not to his actual medical file. The Commission also appeared to have understood his application in this sense.

22. In his observations, the complainant also made comments relating to the possibility to have access to his actual medical file. However, he informed the Ombudsman that the Commission had assured him that this file was available at the Commission's medical service. Therefore, the Ombudsman considers that he does not need to take up this issue in the context of the present complaint.

23. As regards an official's access to his "administrative medical file", the Ombudsman noted that there do not appear to be any rules regulating such access. In the absence of such rules, the Ombudsman considered that the Commission's approach, which consisted of providing the complainant with photocopies of documents on the file, appeared to be reasonable. Given that the complainant appeared to want access to documents relating to his wife's insurance situation and that, as the Commission pointed out, the file only existed in electronic form, the Commission's decision not to print out all documents on the file, but only those in which the complainant appeared to be interested, also appeared to be reasonable. Therefore, the Commission's approach to the complainant's request did not appear to have been against the principles of good administration as such. It remained to be examined, however, whether the Commission did indeed grant access to all the documents in which the complainant appeared to be interested. These documents were described in more detail in the complainant's letter of 1 April 2006.

24. In its reply of 11 April 2006, the Commission took the view that it had already addressed the issues covered by the complainant's aforementioned letter in its decision of 4 November 2005, a copy of which was provided to the Ombudsman in the context of his inquiry into the complainant's complaint 656/2006/(AE)WP. However, this decision exclusively concerned the question whether the insurance status of the complainant's wife had been wrongly changed from primary to complementary coverage. In his letter of 1 April 2006, the complainant made some comments concerning this question. However, the main part of his letter concerned his request for access to his file. As described above, the complainant (a) referred to a number of documents that were allegedly missing from the file and (b) asked certain questions in relation to his file. Thus, the Ombudsman considered it obvious that the complainant's letter of 1 April 2006 did not just raise the same issue that was the object of his Article 90(2) complaint. Given that the Commission's reply of 11 April 2006 did not address the question of access to the complainant's file at all, the Ombudsman failed to understand how, even after re-examining the issue in the context of the present inquiry, the Commission could take the view that it had replied to the complainant's letter in an appropriate manner.

25. As regards the further questions asked by the complainant, the Ombudsman noted that his services had received satisfactory replies to these questions during their inspection of the file. These replies were then forwarded to the complainant. Therefore, it appeared that the problems regarding this aspect of the complainant's letter had been resolved.

26. As regards the documents which, according to the complainant's letter of 1 April 2006, were missing from the file, the Ombudsman noted that some of the indications given by the complainant were rather vague. The Ombudsman also took note of the Commission's statement that its services had not been able to identify the documents the complainant was looking for.

27. The Ombudsman deemed it important to point out that his inquiry into the present case concerned the complainant's request for access to his file. This meant that he could only assess whether the Commission ought to have granted access to the documents that were actually on this file. The Ombudsman did not have to verify whether this file was complete, namely, whether certain documents ought to have been added to the file, but were not included in it. Nevertheless, the Commission assured the Ombudsman that the file that was inspected by the Ombudsman's representatives was the complete file held by the PMO regarding the complainant.

28. In light of the above, and after inspecting the PMO's file, the Ombudsman considered that a number of the documents referred to by the complainant in his letter of 1 April 2006, to the extent that they could be identified, were indeed not included in that file. This applied, in particular, to documents covering the years prior to 1993 which, as the Commission explained, were presumably held by other settlement offices dealing with the complainant at that time. The Ombudsman explained that the complainant remains free to address himself to these bodies if he wishes to be granted access to these documents.

29. The Ombudsman further noted that the first three ring-binders that were inspected by his services contained documents relating to the reimbursement of medical expenses incurred by the complainant and his family (that is, requests for reimbursement, applications for advance coverage of hospitalisation costs and related correspondence between the complainant, the Commission and the complainant's doctors). In the Ombudsman's view, it seemed that these ring-binders did not contain any further documents that could be of interest to the complainant in the present context.

30. However, it emerged from the complainant's letter of 1 April 2006 that he expected his "administrative medical file" to contain, among other things, memos and internal notes (item 8 of the list in his letter). The Ombudsman's representatives identified some documents in the fourth ring-binder presented to them which could correspond to this description.

31. Given that the Ombudsman did not know which documents were among the 56 photocopied pages which were given to the complainant, he could not determine if the complainant was given access to all relevant documents which the Ombudsman's representatives inspected. However, in its opinion, the Commission pointed out that the documents that were disclosed to the complainant notably included those containing his requests for the recognition of an illness as an occupational disease. Judging from this statement, it appeared highly doubtful that the Commission had indeed considered all the documents in which the complainant might have been interested when dealing with his request for access. Besides, it should be noted that the volume of the said fourth ring-binder clearly exceeded 56 pages.

32. In light of the above, the Ombudsman made the preliminary finding that the Commission failed properly to handle the complainant's request for access to his "administrative medical file" and his letter of 1 April 2006, which could have amounted to an instance of maladministration. The Ombudsman therefore made the following proposal for a friendly solution:

"Taking into account the Ombudsman's above findings, the Commission could consider re-examining the complainant's request for access, in particular as regards the documents to which the complainant referred in his letter of 1 April 2006, and granting the complainant access to any further documents concerning his wife's insurance situation, which have not already been made accessible to him. In the event that the Commission concludes that access to certain documents cannot be granted, it could consider explaining to the complainant the reasons for this view."

The arguments presented to the Ombudsman after his friendly solution proposal

33. In its reply, the Commission stated that there was nothing to prevent the complainant from having access to his "administrative medical file", which the Ombudsman's services inspected on 21 April 2008. As regards documents predating 1993, the Commission essentially pointed out that, in view of periods of retention applicable to documents, it was impossible to guarantee the complainant's access. Against this background, the Commission accepted the Ombudsman's friendly solution proposal and agreed to grant the complainant access to his "administrative medical file", which the Ombudsman's services inspected on 21 April 2008. The practical arrangements for granting access were to be determined by mutual agreement between the complainant and the Commission.

34. In his observations, the complainant welcomed the Commission's position. As a result of the Ombudsman's intervention, he felt that his situation had been handled in a reasonable manner for the first time in four years. He thanked the Ombudsman for his help, as well as the Commission official in charge of granting him access. On 10 March 2009, he was granted access to his "administrative medical file". Although he was satisfied with this outcome, he also pointed out that more than three years had lapsed since his initial request for access. During a number of telephone conversations with the Ombudsman's services in March and April 2009, the complainant reiterated this argument.

35. The complainant also took the view that the fourth ring-binder was not complete. He derived support for this assumption from the fact that, according to him, pages 42 to 44 did not exist in the documents to which he had been granted access. He stated that this suggested that further important documents might exist which had not yet been made available to him. In any event, however, he submitted that the documents he had received contained sufficient evidence to require the reopening of case 656/2006/(WP)BEH. Against this background, he expressed the hope that these new circumstances would give rise to an "open-ended dialogue" with the Commission. He also remarked that the reopening of case 656/2006/(WP)BEH would necessitate extending the scope and time of granting access to the said documents.

The Ombudsman's assessment after his friendly solution proposal

36. In light of the parties' submissions following his proposal for a friendly solution, the Ombudsman concludes that his proposal has had a successful outcome.

37. The complainant outlined that several years had lapsed between his initial request for access and the date on which he was given access to the file following the Ombudsman's proposal for a friendly solution. However, the Ombudsman does not understand the complainant's statement as an indication that he wishes to submit a new allegation. If the complainant wishes for the Ombudsman to reconsider this issue, he remains free to submit a new complaint to him concerning this aspect.

38. It is true that, in spite of his satisfaction with the Commission's response to the Ombudsman's friendly solution proposal, the complainant continued to suspect that the documents he received were incomplete. In the given context, it is important to recall that the Ombudsman's inquiry into the present case concerned the complainant's request for access to his file and thus the question whether the Commission ought to have granted access to the documents that were actually on this file. Thus, he did not have to verify whether the file inspected by his services was complete, that is, whether certain documents ought to have been added to this file, but were not included in it. At the same time, the Ombudsman recalls that the Commission underlined that all documents concerning the complainant and his family, starting from the year 1993 and contained in the relevant database, had been printed and included in the file (see paragraph 27 above). He therefore considers that the Commission has given credible assurance that the documents inspected by his services were complete. Although the complainant voiced a suspicion to the contrary, the Ombudsman takes into consideration that there are no reasons to suggest that the file to which the complainant was granted access differs from the file inspected by his services. Against this background, he considers that there is no need for further action on his part regarding the complainant's aforementioned suspicion.

39. In his observations, as well as during a telephone conversation with the Ombudsman's services on 3 June 2009, the complainant pointed out that the file to which he was granted access contained no documentation regarding certain events involving the "JSIS Y." in 2004. According to the complainant, the "JSIS Y." assured him at the beginning of 2004 that his wife would benefit from primary coverage under the JSIS, which was revoked by the PMO. The Ombudsman recalls that, during the inspection of the file by his services, the Commission official in charge pointed out that documents generated during the time when the complainant was registered with another settlement office would be likely to be held by this other office (see paragraph 15 above). The complainant could therefore consider requesting access to these documents from other settlement offices involved.

40. The Ombudsman also notes that, in the complainant's view, the documents to which he was granted access necessitated the reopening of case 656/2006/(WP)BEH. Such an action would, in turn, require extending the scope and time of granting access to the said documents. The Ombudsman replied to the complainant's request to reopen case 656/2006/(WP)BEH by letter of 27 May 2009. In this letter, the Ombudsman explained that neither the EC Treaty nor the Statute of the European Ombudsman provide for an appeal against or a formal review of his decisions. However, this does not prevent him from reconsidering his findings if, in light of new circumstances, they can no longer be considered valid. He furthermore pointed out that, if there are elements calling into doubt his findings in a given case, a new inquiry could be opened. In his letter of 27 May 2009, the Ombudsman informed the complainant why he felt that the documents the latter had received did not require that he reconsider his findings in case 656/2006/(WP)BEH. In view of the reply given in this letter, there is no need to examine whether a reconsideration of the case would require extending the granting of access to the complainant.

41. In view of the above, the Ombudsman considers that the additional observations on the Commission's reply to his friendly solution proposal, which were submitted by the complainant, do not affect the conclusion that a friendly settlement has been achieved.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

A friendly settlement has been achieved.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 23 July 2009

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[1] Complaint 656/2006/(AE)WP was closed with a finding of no maladministration on 7 April 2008.