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Decision in case 36/2018/THH on the European Commission’s rejection of a request for access to documents relating to the total number of applicants per citizenship and/or language in four EPSO competitions

Dostupni jezici: en
  • Slučaj: 36/2018/THH
    Otvoren 2018.01.16 - Odluka donesena 2018.05.16
  • Predmetna/e institucija/e: Europska komisija

The case concerned whether the European Commission was justified in refusing access to the requested documents on the grounds that no such documents existed within the meaning of Regulation 1049/2001.  This depended on whether the information in question could be produced through a routine operation using the existing search tools of the European Personnel Selection Office (EPSO) database. The complainant contended that, as information concerning language and citizenship was necessarily provided by applicants to competitions, EPSO should be able to sort applicants using these criteria.

The Ombudsman inquired into the issue and found that, while the requested information was indeed available in the database, it could not be presented in the requested form through a routine operation. She therefore found no maladministration by the Commission.

Background to the complaint

1. In October 2017, Mr Dejan Flasker made a request for access to documents under Regulation 1049/2001 to the European Personnel Selection Office (EPSO) in order to obtain statistical information for a newsletter article concerning the total number of applicants per citizenship and/or language for four EPSO competitions.

2. The initial reply from EPSO in November 2017 stated that it did not hold any documents corresponding to the scope of the request, and that it could therefore not provide them to the complainant. The European Commission subsequently confirmed this position in its review of the EPSO decision (the so-called “confirmatory decision”) in January 2018. The Commission argued that under Article 2(3) of Regulation 1049/2001, the right of access to documents only applies to existing documents in the possession of the institution concerned. The Commission also asserted that Regulation 1049/2001 cannot be relied upon to oblige an institution to create a document which does not exist, referring to the Typke v Commission case[1]. In this case, the Court ruled that information within an electronic database is deemed to constitute an existing document under Regulation 1049/2001 if it is retrievable through a routine operation using the available search tools.

3. The complainant was not satisfied with the Commission’s reply, and turned to the European Ombudsman on 4 January 2018.

4. The complainant subsequently provided additional documents to support his claim, namely 5 anonymised letters sent by EPSO to candidates in several competitions indicating the competition number, language 1, language 2, candidate number, score for each specific Multiple Choice Question (MCQ) test, and total score.

The inquiry

5. The Ombudsman opened an inquiry in order to determine whether the Commission had correctly assessed that the information requested did not constitute an existing document within the meaning of Regulation 1049/2001, and, if not, whether it would be possible to comply with the complainant’s request outside of this framework.

6. The Ombudsman’s inquiry team met with relevant officials from the Commission and EPSO, who conducted a demonstration of EPSO’s electronic database, in particular regarding whether the information requested by the complainant was retrievable using the available search tools. The inspection report was then submitted to the complainant for comments, which were taken into account by the Ombudsman in her decision.

The Ombudsman’s assessment of the Commission’s refusal of an access to documents request

7. During the demonstration of the functioning of EPSO’s database provided by EPSO and Commission officials to the Ombudsman’s inquiry team, it was explained that the database is organised so as to manage the progression of very large numbers of applicants through the different stages in the selection process for competitions. 

8. For each competition, the database presents information on application “milestones”, such as the number of applicants registered, the number of applicants booked, the number of applicants passing the admission tests, and the results. Information on the content of the tests is not available in the database, which only concerns information on candidates. Indeed, for security purposes, the list of questions used is stored offline.

9. While the data requested by the complainant is stored in the database, generating a document which organises it in the requested form is not possible, by means of a routine operation, i.e. one which can be performed through pre-programmed search tools and does not require a substantial investment from the database user[2]. Indeed, the Ombudsman confirmed in the inspection that the relevant information is not visible on the database interface, and cannot be aggregated automatically using the search tools available on the platform. In order to produce such a document, it is therefore necessary first to export data for all applicants to a competition, and then to process it through Excel. Further manual operations are then required in order to aggregate the relevant information and remove unnecessary data. Although EPSO occasionally extracts in relation to particular competitions, using the bespoke and ad hoc operations described above, this had not happened as regards the specific competitions in relation to which the complainant requested information. Therefore, no “existing documents”, within the meaning of Regulation 1049/2001, exist which contain the information the complainant requested.

10. The need to carry out non-standard processing operations in order to extract the information requested is explained by the fact that the kind of data requested by the complainant is not operationally useful to EPSO and, therefore, the database was not designed to produce, upon request, that data. Furthermore, the system used for the database has been the same since 2005, predating the introduction of Computer Based Tests (CBTs), and thus had to be adapted to meet requirements for which it had not been designed. As the system was also designed with high security in mind, this creates a certain rigidity which limits the available operations in the database. 

11. The EPSO and Commission officials explained to the Ombudsman’s inquiry team that a new system allowing for more automaticity in generating statistics of the kind requested by the complainant was currently being developed. 

12. The possibility of dealing with the request outside of the framework of Regulation 1049/2001 was discussed at the inspection, but was not considered feasible by the Commission and EPSO.

13. On the basis of the explanations provided by the EPSO and Commission officials, there is nothing to suggest that an error of assessment has been made by the Commission regarding the complainant’s request for access to documents.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following finding:

There has been no maladministration by the Commission.

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

 

Fergal Ó Regan

Coordination of Public Interest Inquiries - Unit 2

Strasbourg, 16/05/2018

 

 

[1] Judgment of the Court of 11 January 2017 in case C-491/15, Typke v Commission, ECLI:EU:C:2017:5, paragraphs 37-40

[2] As above, in the case of Typke v Commission