Secretariat‐General European Commission

 

 

Dear Mr X,

The Ombudsman has received a complaint against the European Commission.

The complaint concerns the Commission’s refusal to give public access to (parts of) 33 documents[1] related to its legislative proposal for a regulation to prevent and combat child sexual abuse.

The access request was made in March 2023. In the absence of an initial decision within the applicable time limit, the complainant submitted a confirmatory application, arguing that there is an overriding public interest in disclosure. When he did not receive a confirmatory reply either, the complainant turned to the Ombudsman.[2] Following our Office’s intervention, the Commission has now replied to the complainant.

Specifically, the Commission identified 121 documents as falling within the scope of the request. It gave full or wide partial access to 88 documents, redacting only personal data of staff and parts that it considered to fall outside the scope of the complainant’s request. As regards the remaining 33 documents, the Commission refused access, in full or in part, relying on a number of exceptions under Article 4 of Regulation 1049/2001.

The complainant challenges the application of the relevant exceptions (other than the protection of personal data) and maintains that there is an overriding public interest in disclosure, given that, in his view, the documents concern a legislative procedure and that concerns have been raised by the public, including as regards possible conflicts of interests and irregularities.

The complainant also contends that the Commission failed to engage with the arguments he put forward in his confirmatory application of 25 May 2023. In addition, he is concerned about the allocation of his access request (which was dealt with by DG HOME rather than DG JUST, the addressee of the access request).

We have decided to open an inquiry into the Commission’s decision to refuse access under Regulation 1049/2001, relying on the need to protect public security, decision-making, legal advice and commercial interests.

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.

As a first step, we consider it necessary to review the 33 documents[3] at issue in the complaint. We have already received copies of these documents in the context of our inquiry into complaint 1251/2023/MIG. However, we would be grateful to receive also marked copies of those documents (i) that were either disclosed in parts or (ii) that were withheld in full, based on several exceptions, indicating which parts were disclosed to the complainant and which were not, and the reasoning for the redactions. In addition, we consider it necessary to review any documentation on third-party consultations that the Commission might have conducted. We would appreciate it if the Commission could provide us with copies of these documents, preferably in electronic format through encrypted e-mail,[4] by 8 January 2024.

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

The Commission’s position has been set out in its reply dated 7 December 2023. However, we note that the Commission did not engage with the arguments the complainant had put forward in his confirmatory application of 25 May 2023. Therefore, should the Commission wish to provide additional views, including on the complaint, to be taken into account by the Ombudsman during this inquiry, we would be grateful if they could be provided to us by 31 January 2024.

The inquiries officer responsible for the case is Ms Michaela Gehring.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 21/12/2023

 

[1] Documents 9, 11, 13, 14, 48 to 50, 56, 61 to 69, 89 to 92, 94, 106 and 110 to 119.

[2] Complaint 1251/2023/MIG.

[3] See footnote 1.

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