The background

1. The complainant is a former Commission official. In late 2008, he complained to the European Anti-Fraud Office (OLAF) about practices in the Commission's Directorate-General for Trade (DG Trade), which in his view were prone to manipulation. OLAF subsequently opened an inquiry into the functioning of the trade defence instruments directorate of DG Trade. In January 2010, the complainant asked if the inquiry had been closed and, if so, if he could receive the relevant report. OLAF replied that the investigation was still ongoing and thus no Final Case Report could be made available to the complainant. However, once it was closed, he could make a request for access under Regulation 1049/2001[1].

2. In August 2010, OLAF informed the complainant that the investigation had been closed in July without any further follow-up. The complainant thus asked OLAF to send him "the reports concerning the investigation", in particular the names and nationalities of the investigators, the amount of time dedicated to the investigation, which anti-dumping, anti-subsidy and safeguard cases were covered by the investigation and in which cases OLAF checked the calculations made by the Commission.

3. In October 2010, OLAF rejected this request for public access to the Final Case Report, arguing that the document was covered by four of the exceptions provided for by Article 4 of Regulation 1049/2001: Article 4(2) third indent (protection of the purpose of inspections, investigations and audits), Article 4(1)(b) (protection of personal data), Article 4(2) first indent (protection of commercial interests) and Article 4(3) second subparagraph (protection of the decision-making process). Moreover, OLAF identified no overriding public interest capable of trumping the protected interests.

4. In his confirmatory (review) application, the complainant argued that OLAF's position would make it impossible for anyone ever to have access to documents concerning its investigations, thus placing OLAF beyond scrutiny.

5. In its reply in January 2011, OLAF confirmed its initial refusal.

6. In his complaint to the Ombudsman, the complainant maintained his view that OLAF's interpretation of Regulation 1049/2001 was wrong.

Allegation of wrongful rejection of the complainant's request for access

The Ombudsman's solution proposal

7. After examining the complaint, inspecting OLAF's file, obtaining the opinion of OLAF and the observations of the complainant, on 26 June 2013, the then Ombudsman made the following proposal for a solution[2]:

"OLAF could consider granting partial access to the document."

8. In his analysis, the then Ombudsman considered that OLAF could have granted partial access to the document, redacting any information that could allow individuals or businesses to be identified by replacing references with an appropriate alphabet letter throughout the document[3]. However, the Ombudsman was not convinced by OLAF's reliance on the exceptions under Article 4(2) third indent (protection of the purpose of investigations) and Article 4(3) second paragraph (protection of the decision-making process even after its conclusion) of Regulation 1049/2001.

OLAF's response to the proposal for a solution

9. In its reply, OLAF rejected the Ombudsman's solution proposal. It acknowledged that the exception related to the protection of the purpose of investigations did not apply to all of its investigative activities. It argued, however, that, as had been stated in many Court cases[4], Regulation 1049/2001 had to be interpreted in the light of Regulation 1073/1999[5]. Article 8 of the latter Regulation provided that OLAF must keep confidential any information it obtains during an investigation. This was to safeguard the conduct of investigations in the public interest, but also to protect the interests of any individuals providing information to OLAF, who must be reassured that this information will be used only for the purpose for which it was provided. This concern was closely linked to the exception for the protection of the purpose of investigations.

10. Even though OLAF had closed its investigation OF/2008/1048 without follow-up, the information in the Final Case Report was "directly related" to another OLAF investigation. In relation to this, the Court had underlined that the exception did not seek to protect investigations as such, but the purpose of those investigations. The purpose of OLAF investigations was the fight against fraud, corruption and other illegal activities to the detriment of the EU's financial interests. Where this purpose has not been attained, the case law stated that "various acts of investigation" may remain covered by the exception even if the investigation as such has been closed[6].

11. OLAF further disagreed with the Ombudsman's view that a sufficient level of protection of personal data could be provided by replacing references to individuals and legal entities concerned with an appropriate alphabet letter. It argued that due to the fact that the complainant had made references to the names of the person concerned, possible witnesses, businesses and business associations in his complaint to OLAF, as well as because the facts and allegations related to the person concerned were widely covered by the media, the complainant and the wider public could easily identify these persons and other relevant information falling under the notion of personal data. This is because, according to OLAF, most parts of the document directly and indirectly relate to identification of individuals. Disclosure of even indirect indications of the identity of the persons might, according to OLAF, affect the reputation of the person involved in the investigation, and consequently would qualify as a violation of OLAF's duty of confidentiality.

12. Finally, in relation to the protection of the decision-making process, OLAF stated that it "fully understands" the Ombudsman's remarks and agreed that the Court of Justice had required institutions to give specific reasons. However, it considered that in a case like the present, where the document to which access was sought was closely related to other ongoing procedures which remained in need of protection, the concern that publicity could seriously undermine the "frankness and independence" of individuals "advising" the institutions was concrete and identifiable.

13. In conclusion, OLAF maintained that it could not grant even partial access to the document, in particular given that the exception related to the protection of the purpose of investigations still applied to the entire Final Case Report.

The complainant's response

14. In his observations, the complainant called OLAF's arguments for rejecting the solution proposal "preposterous" and argued that its view, that the exception for the protection of the purpose of investigations applied, meant that, since it could be assumed that all OLAF's investigations had a purpose, virtually all its documents would be protected from disclosure. Such an interpretation was contrary to the purpose of Regulation 1049/2001, which was to grant access to documents, not to deny it.

15. The complainant also disagreed with OLAF's statement that the document would allow individuals to be identified even if their names and other relevant information were redacted. The only two exceptions to this would be himself as the complainant and the person whose acts were investigated. As it was clear from his complaint about whom he had complained, the only conclusion was that OLAF continued to protect the person investigated, by denying a request for access whose very purpose was to verify whether OLAF had actually investigated the matter. This indicated that no real investigation had taken place, a fact which would be exposed if access to the document was granted. Moreover, OLAF's reference to another ongoing investigation was probably a lie; the complainant was not aware of any relevant ongoing investigations, and OLAF had not given any concrete examples of any such investigations. In any event, this would not be a reason not to grant access to the document requested.

16. He concluded that it was scandalous that he was not informed about the outcome of the investigation, which had been launched following his complaint; he had no means to check whether his complaint, duly supported with documentary evidence, turned out to be incorrect in any way, or whether it was even given any proper follow-up. He considered that the only conclusion from this state of affairs was that OLAF's investigations were not sincere, but rather delivered the results that the other institutions desired. OLAF was able to do so also because the Ombudsman did not dare to conduct proper investigations into the real reasons why OLAF had refused public access to its documents.

The Ombudsman's assessment after the proposal for a solution

Exception concerning the protection of the purpose of inspections, investigations and audits

17. In refusing access to the requested document, OLAF relied mainly on Article 4(2) third indent of Regulation 1049/2001, which provides that:

"The institutions shall refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits."

18. The Ombudsman, having inspected the document in question, notes that the document does in fact relate to an investigation. However, this in itself does not justify the application of the exception[7], as any exception must be interpreted and applied strictly[8], so as not to frustrate the application of the general principle that the public should be given the widest possible access to documents held by the institutions[9].

19. The Ombudsman further notes that the risk of that interest being undermined must, in order for the exception to be relied upon, be reasonably foreseeable and not purely hypothetical[10]. In this regard, the Ombudsman remains unconvinced by OLAF's assertion that possible future witnesses would be deterred from providing information if it released the requested Final Case Report. Provided that witnesses' private data are properly protected in accordance with the applicable rules, the Ombudsman believes that this risk is not significant. Furthermore, the Ombudsman agrees with the complainant's argument that "purpose of investigations" cannot mean the abstract goal of "the fight against fraud, corruption and other illegal activities", as implied by OLAF in its response to the solution proposal, but only the purpose of the specific investigation relevant to the requested document, since otherwise virtually any document held by OLAF would fall under the exception provided for in the third indent under Article 4(2).

20. According to OLAF, the investigation, reference OF/2208/1048, had been closed without follow-up, however, "the requested document contains information, facts and allegations which are linked to other on-going procedures needing to be protected". As explained by OLAF in its decision on the complainant's confirmatory application, this other OLAF investigation, concerning the same person, "has been finalised with judicial and disciplinary follow-up and the information has been transmitted to [the Commission's Investigation and Disciplinary Office] and to the national judicial authorities of the Member State". The complainant questioned this statement, arguing that he was not aware of any ongoing procedure. However, he did not furnish any evidence capable of supporting his argument, claiming only that OLAF was "probably lying".

21. Even though the purpose of Article 4(2) third indent of Regulation 1049/2001 is mainly to protect the completion of ongoing inspections, investigations or audits, various acts of investigation may, according to case-law, "remain covered by the exception [...] as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought is completed"[11]. It is, however, necessary to ascertain whether, "at the time of the adoption of the contested [decision on the confirmatory application], inspections and investigations were still in progress which could have been jeopardised by the disclosure of the requested documents, and whether these activities were carried out within a reasonable period"[12].

22. OLAF has, in its response to the Ombudsman's solution proposal, provided the Ombudsman with additional confidential information on the latter point. The nature of this information is such that the Ombudsman is led to conclude that OLAF cannot, at the present time, disclose this information. The Ombudsman also concludes that providing any detailed information as to the reasons for the non‐disclosure of this information would not be possible without revealing the core nature of the information and thus compromising legitimate public interests.

23. As outlined in her decision in case 362/2011/KM[13], the Ombudsman is guided by the case-law of the European Courts on this point[14]. While there is a general requirement that EU bodies should explain their actions and decisions in a clear and unequivocal fashion, there can be individual instances in which the extent to which an explanation can be given is limited. This type of scenario arises also, for example, in the case of requests for documents made under Regulation 1049/2001. In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation 1049/2001. However, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and thereby defeating the very purpose of the exception.

24. On the basis of the information provided by OLAF, the Ombudsman comes to the conclusion that the efficient conduct of the ongoing procedures, conducted within a reasonable timeframe, could be compromised if public access to the Final Case Report was granted. The case-law's requirements are therefore met. The Ombudsman concludes that OLAF had been correct in holding that access to the Final Case Report had to be refused, on the ground that it was reasonably foreseeable and not purely hypothetical that disclosure would undermine the protection of the purpose of inspections, investigations and audits.

25. As outlined in her decision in the related case 362/2011/KM, the Ombudsman inspected the Commission's files relating to the underlying case. That inspection is also relevant for the present inquiry since it confirms that the reasons for not disclosing the document remain applicable at the present time.

26. The Ombudsman understands that she is prevented, by law, from giving a fuller explanation of why she is now satisfied that OLAF is justified in taking the stance it has taken in this case. The Ombudsman and her staff are, like all EU staff, bound by the duty of confidentiality now reflected in Article 339 of the Treaty on the Functioning of the European Union. Accordingly, for the purposes of explaining her position in this case, the Ombudsman must not divulge information or documents obtained in the course of Ombudsman inquiries, in particular where this information is classified. This prohibition on disclosure by the Ombudsman arises under Article 4(1) of the Statute of the European Ombudsman.

27. It is a feature of the Ombudsman institution in general that the Ombudsman has privileged access to information and documents necessary for the conduct of an Ombudsman inquiry. In most instances it is possible for the Ombudsman, in publishing an inquiry report or decision, to convey at least the substance of what the Ombudsman has learned from the information or documents provided. In some few cases, as with the present inquiry, it is not possible for the Ombudsman to disclose in any detail what she has learned from the documents or information provided. In these latter cases the complainant, and the public generally, must trust in the integrity and independence of the Ombudsman. In the case of the present inquiry, the complainant has expressed a lack of trust in the Ombudsman. This is regrettable but cannot justify any departure by the Ombudsman from the legal obligations by which she is bound.

28. Nevertheless, OLAF must also balance the interest to be protected by non-disclosure against the public interest in the document being made accessible. The complainant argued that the reasoning applied by OLAF would lead to a situation were virtually all of OLAF's documents would be covered by the exception of Article 4(2) third indent of Regulation 1049/2001. This would mean that OLAF's investigations were beyond any scrutiny, as well as that the legislation on public access to documents was simply cosmetic, as an institution could always deny access. The Ombudsman understands this argument as partly invoking the public interest in ensuring that OLAF is properly conducting its investigations. She agrees that it is essential for the Union authorities to be accountable to European citizens, and that the authorities exercise their public powers as openly and transparently as possible. Nevertheless, the Ombudsman is of the opinion that, in the present case, these considerations do not prevail over the interest in ensuring the efficient conduct of investigatory procedures, itself a public interest, which, as pointed out above, would be undermined by disclosure of the requested document.

29. Having re-examined the document following OLAF's reply to the Ombudsman's solution proposal, the Ombudsman agrees with OLAF's assessment that no reasonable partial access under Article 4(6) of Regulation 1049/2001 could have been granted to the document. Any redacted version of the document provided on this basis would inevitably have been a version devoid of meaning.

30. Therefore, the Ombudsman concludes that OLAF was justified in withholding public access to the entirety of the document, as disclosure would undermine the protection of the purpose of inspections, investigations and audits under Article 4(2) third indent of Regulation 1049/2001. There is no overriding public interest in disclosure.

Exception concerning the protection of private data, commercial interests and the decision-making process

31. Since OLAF was justified in basing its refusal to grant public access on the exception concerning the protection of the purpose of inspections, investigations and audits, the Ombudsman considers that there is no need to examine whether OLAF erred in applying the exceptions (i) concerning the protection of private data under Article 4(1)(b), (ii) concerning the protection of commercial interests under Article 4(2) first indent and (iii) concerning the decision-making process under Article 4(3) of Regulation 1049/2001.

Conclusion

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

There was no maladministration by OLAF.

The complainant and OLAF will be informed of this decision.

Emily O'Reilly

Strasbourg, 01/06/2016

 

[1] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

[2] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's solution proposal available at: http://www.ombudsman.europa.eu/cases/solution.faces/en/65806/html.bookmark

[3] Judgment of 15 January 2013, Strack v Commission, T‑392/07, EU:T:2013:8, paragraph 205.

[4] Namely, Judgment in Commission v Agrofert Holding, C-477/10 P, EU:C:2012:394, paragraph 53; Judgment in Commission v Technische Glaswerke Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 58; and Judgment in Commission v Bavarian Lager EU:C:2010:378, paragraph 56.

[5] Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ L 136, p. 1, which has however since been replaced by Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999, OJ L 248, p. 1.

[6] Judgment of 12 September 2007, API v Commission, T-36/04, ECR, EU:T:2007:258, paragraph 133 (OLAF also referred to this point has having been "implicitly confirmed" on appeal by the Court in Judgment in Sweden and Others v API and Commission, Joined Cases C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541, paragraph 118 ff); Judgment of 15 December 2011, CDC Hydrogene Peroxide v Commission, T-437/08, ECR, EU:T:2011:752, paragraph 59.

[7] Judgment in ClientEarth v Commission, C-612/13 P, EU:C:2015:486, paragraph 68.

[8] Judgment of 13 September 2000, Denkavit Nederland v Commission, T-20/99, EU:T:2000:209, paragraph 45.

[9] Judgment in Sweden v MyTravel and Commission EU:C:2011:496, paragraph 75; Judgment in Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66; Judgment in Sweden and Turco v Council EU:C:2008:374, paragraph 36; and Judgment of 6 July 2006, Franchet and Byk v Commission, T-391/03, ECR, EU:T:2006:190, paragraph 84.

[10] Judgment in Sweden and Turco v Council EU:C:2008:374, paragraphs 42-43.

[11] Judgment in Franchet and Byk v Commission, paragraph 13 above, EU:T:2006:190, paragraph 109-110.

[12] Judgment in Franchet and Byk v Commission, paragraph 13 above, EU:T:2006:190, paragraph 113.

[13] http://www.ombudsman.europa.eu/cases/decision.faces/en/61754/html.bookmark

[14] Judgment of 19 January 2010, Co-Frutta v Commission, Joint Cases T-355/04 and T-446/04, ECR, EU:T:2010:15, paragraphs 99-101.