Background to the complaint

1. On 30 August 2019, the complainant, a journalist, requested the Commission to give him access to “[…] meeting minutes, e-mails and all other documents related to a meeting between Secretary-General Martin Selmayr and the lobbying firm friedrich30, also known as f30, on 29 March 2019”.[1]

2. The Commission replied to the complainant’s request on 23 December 2019. The Commission identified 9 documents as falling within the scope of the complainant’s request. Having examined them, the Commission granted full access to 4 documents, partial access to 4 other documents (subject only to the redactions of personal data) and refused access to 1 document, based on the protection of privacy and the integrity of an individual.^[2]

3. On 3 January 2020, the complainant asked the Commission to review its decision by submitting a so-called “confirmatory application”. The complainant specified that he wanted the Commission to disclose the name of the lobbyist contained in the documents and argued that there was a specific purpose in the public interest justifying this disclosure.

4. On 17 February 2020, the Commission issued its confirmatory decision, in which it confirmed its initial findings.

5. Dissatisfied with the Commission’s decision, the complainant turned to the Ombudsman on 22 March 2020.

The inquiry

6. The Ombudsman opened an inquiry into the Commission’s refusal to provide full public access to the requested documents.

7. In the course of the inquiry, the Ombudsman’s inquiry team inspected the non-redacted versions of the requested documents.

Arguments presented to the Ombudsman

Arguments of the complainant

8. The complainant does not contest that the documents contain personal data. He considers, however, that there is necessity for having the data transferred to him for a specific purpose in the public interest.

9. The complainant argues that he has strong suspicions that the lobbyist who attended the meeting with the Commission official is a specific person misusing his reputation as former (German) public official in his current work. The complainant contends that this lobbyist is a public figure and that his work should be seen as an extension of his public role, which must allow for public scrutiny. The complainant adds that his intention in seeking access to these documents is to highlight attempts to use a reputation gained as a public official when working as lobbyist. In addition, the complainant argued that documents relating to a meeting with the former Secretary-General of the Commission should be open to public scrutiny.

10. In light of the above, the complainant emphasizes his intention to use the information in the requested documents for his reporting work. He considers that this, in addition to the requested documents clearly relating to the transparency of Union institutions and bodies, to be the necessity for a specific purpose in the public interest.

11. In his complaint to the Ombudsman, the complainant specifies he wants the Commission to lift any redactions of the name of the lobbyist or to disclose whether it was another lobbyist taking part in the meeting with the Commission official, rather than the person he suspects it was.

Arguments of the Commission

12. The Commission argues that the documents to which it granted partial access contain personal data, such as the names, functions and contact details pertaining to staff members not holding any senior management positions. The Commission contends that the documents also contain the personal data of third parties, who are not considered to be public figures acting in their public capacity. It explained that the document to which it fully refused access is the CV of an individual who is not a public figure.

13. The Commission considered that the complainant’s arguments on transparency did not establish a necessity to have all the data transmitted for a specific purpose in the public interest.[3] Moreover, the Commission found that there was a real and non-hypothetical risk that public disclosure of the personal data would harm the privacy and integrity of the data subjects. Thus, the legal tests for disclosing personal data were not met and the Commission refused access based on the protection of privacy and the integrity of an individual.[4]

14. Although it refused access to the personal data in the documents, the Commission informed the complainant that the specific lobbyist, which the complainant had suspected was in the meeting with the Commission official, was not mentioned in any of the requested documents.

The Ombudsman's assessment

15. Personal data is any information related to an identified or identifiable person.[5] Therefore, the names, functions and contact details of Commission staff members and third parties are personal data.

16. Under EU privacy rules[6], the Commission must follow a three-stage analysis before it can grant a request to make personal data public. First, the recipient needs to demonstrate the need for transferring the data for a specific purpose in the public interest. Second, there must be no reason to believe that such transfer might undermine the legitimate interests of the data subject. Third, the controller (the Commission) needs to establish that it is proportionate to transmit the personal data for that specific purpose, after having weighed up the various competing interests.

17. The complainant did not bring forward any convincing argument in order to demonstrate a specific necessity for those personal data to be transferred.

18. First, his reference to the need to make public information about lobbying by a particular former national official is not relevant because this person is not named in the documents. The personal data in the documents is that of other persons.

19. The complainant’s argument regarding the ‘transparency’ of Union institutions and bodies is very general and cannot be used to meet the legal test, which is that the disclosure must serve  a necessity for a specific purpose in the public interest.

20. Thus, the complainant has not demonstrated a need to have the personal data transferred to him.

21. In light of the above, the Ombudsman finds that the Commission was justified in refusing access to the names, functions and contact details of Commission staff members and third parties, in order to protect the privacy and the integrity of the identified individuals.

Conclusion

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

There was no maladministration by the European Commission.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 08/07/2020

 

 

[1] In line with the provisions of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[2] In accordance with article 4(1)(b) of Regulation 1049/2001.

[3] As requested under Article 9(1)(b) of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[4] In accordance with article 4(1)(b) of Regulation 1049/2001.

[5] Article 3(1) of Regulation 2018/1725.

[6] Article 9(1)(b) of Regulation 2018/1725.