Background to the complaint

1. The complainant represents a consortium that took part in an EU-funded project whose goal was to develop a specific technology. After the project ended, the Research Executive Agency (the ‘REA’) was dissatisfied with the way the consortium had implemented the project and decided to recover a part of the EU contribution^[1].

2. In the context of the exchange of correspondence between the REA and the complainant concerning the recovery, the complainant requested the REA to disclose certain documents forming part of the REA’s related file. The documents were, in particular, the review reports drawn up by two external experts, related correspondence and the experts’ contracts.

3. Since the REA disclosed to the complainant only the redacted version of the documents, the complainant turned to the Ombudsman claiming that the REA should disclose the full wording.

The inquiry

4. The Ombudsman opened an inquiry into whether the REA handled the complainant’s request for access correctly.

5. In the course of the inquiry, the Ombudsman carried out a meeting and an inspection of documents at the REA.

Arguments presented to the Ombudsman

6. The REA said that:

•  In the context of the relevant funding programme^[2], it was the REA’s practice not to forward the experts’ review reports to the parties concerned. This practice corresponded to that of the European Commission and other agencies. The REA’s representatives said that that approach had however recently changed and that expert review reports were going to be disclosed to the parties concerned in the context of the new funding programme^[3].
•  The REA showed willingness to disclose the documents by consulting the experts, by offering to the complainant to requalify the request as a request for access to the file or to provide the consortium’s consent to making the documents publicly available, and by ultimately disclosing the documents with redactions. The REA took a balanced approach and disclosed all information it could keeping in mind the complainant’s interest in obtaining the documents and the competing legitimate interests in non-disclosure.
•  The redactions the REA made in the documents disclosed to the complainant were mainly justified by the need to protect personal information including personal data and business information. The REA sought to protect the experts by preventing the complainant from identifying them, as well as from identifying which views belonged to which expert.

7. The Ombudsman gave the complainant the opportunity to send comments on the REA’s statements but the complainant sent no comments.

The Ombudsman's assessment

The REA’s procedural handling of the complainant’s requests for access to documents

8. The Ombudsman notes first that the requests for access to documents were made in the context of the discussion between the REA and the complainant of the amount of eligible costs in relation to the project. In November 2017, the REA sent to the consortium an assessment report, which was based on the findings of the experts. The REA did not send the experts’ reports.

9. After the REA informed the complainant that it could not disclose the experts’ reports, the complainant filed, on 8 December 2017, a formal request for access based on Regulation 1049/2001^[4]. On 15 December 2017, the REA acknowledged receipt and informed the complainant that it would analyse the request as a request for access to the file under Article 41(2)(b) ^[5] of the EU Charter of Fundamental Rights (the ‘Charter’). The complainant insisted that the REA should handle the request for access in accordance with Regulation 1049/2001.

10. On 10 January 2018, the REA wrote to the complainant and said that if it were to disclose the documents under Regulation 1049/2001, it would need to see the documents fit for public disclosure to any third party. However, in principle, technical review reports address details of project implementation that are not fit for public disclosure. Therefore, the REA offered to consider the request as a request for access to one’s own file which would allow it to disclose the documents only to the complainant. Against this background, the REA offered two options: Either the REA could grant the complainant access to the documents under Regulation 1049/2001 upon receipt of the explicit agreement of the consortium qualifying these review reports fit for public disclosure. Or the complainant could requalify its request as a request for access to a file concerning it within the meaning of the Charter.

11. The Ombudsman finds this course of action reasonable. The REA clearly sought to protect the interests of the consortium by not making documents containing sensitive business information accessible to the public at large under Regulation 1049/2001. The correspondence provided to the Ombudsman shows that the REA was willing to grant the consortium access to the requested documents because of its privileged status as a party concerned having special rights of access in line with the Charter. The REA was also willing to disclose the documents formally under Regulation 1049/2001 on condition that the consortium agrees to make them accessible to potential future requestors from the larger public^[6]. It is regrettable that the complainant did not opt for one of these two options at an early stage.

12. The correspondence sent by the REA shows that the complainant could have received access as early as January 2018. Instead, because of the complainant’s reaction, the parties pursued their exchange of correspondence until 16 March 2018 when the complainant ultimately requalified his request as a request for access to the file. The REA agreed to a partial disclosure on 23 March 2018.

13. The Ombudsman further notes that the complainant objected to the REA’s redactions on 20 April 2018. He specifically asked the REA to reconsider his request under Regulation 1049/2001 and made a new request for access to a further category of documents. The REA replied on 17 May 2018 and disclosed further documents under Regulation 1049/2001. On 27 May 2018, the complainant appealed the REA’s decision. On 18 June 2018, the REA confirmed its decision.

14. The Ombudsman notes that the complainant made yet a further request for access under Regulation 1049/2001 on 27 May 2018. The REA replied on 18 June 2018 that it did not have the requested documents in its possession.

15. The Ombudsman considers that the fact that the disclosure of documents got delayed is not attributable to the REA who sought to be as helpful as possible. The correspondence provided to the Ombudsman also shows that the REA sought to accommodate the different interests at stake. It paid special attention to the interests of the consortium, which might be adversely affected by rendering possible disclosure to the public at large under Regulation 1049/2001.

16.  The Ombudsman further notes that the REA replied to the complainant’s correspondence speedily^[7], apologised for some delays (even minor) in replying to the complainant^[8] and even sent a reminder to the complainant who was not always responsive^[9]. Moreover, the complainant clearly contributed to the delay, in particular, by making further related requests^[10] and by extending the scope of his initial request for access^[11]. The Ombudsman also notes that the parties simultaneously pursued their exchange of arguments concerning the fairness of the REA’s recovery decision.

17. Accordingly, there was no maladministration regarding how the REA procedurally handled the complainant’s requests for access to documents.

The REA’s substantive assessment of whether the documents may be disclosed to the complainant

18. The Ombudsman notes that the REA considered that it had to redact certain information in order to protect privacy (personal data) and legitimate commercial interests. It provided detailed reasons. The REA also specifically informed the Ombudsman that it sought to protect the experts by preventing the complainant from identifying them, as well as from identifying which views belonged to which expert.

19. The Ombudsman has reviewed the documents and the redactions in question and considers that they were justified, reasonable and adequate in the circumstances of this case, both from the perspective of Regulation 1049/2001 and the Charter.

20. This being said, the Ombudsman emphasises that, as a matter of procedural fairness, the parties concerned by an expert review should have access to the information contained in experts’ review reports to the largest extent possible. The Ombudsman does not doubt that this was so in this case and that the consortium obtained all information it needed to protect its interests. Accordingly, there was no maladministration regarding this aspect of the case either.

Conclusion

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

There was no maladministration regarding the REA’s handling of the complainant’s requests for access to documents.

The complainant and the Research Executive Agency will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 14/08/2019

 

[1] The complainant submitted two further complaints (1512/2018/JN and 1533/2018/JN) concerning the fairness of the Research Executive Agency’s decision to recover funds from the consortium represented by the complainant. The Ombudsman’s decision concerning these two complaints is available at: https://www.ombudsman.europa.eu/en/decision/en/112437

[2] The FP7 Programme.

[3] Horizon 2020.

[4] 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 L 145, 31.5.2001, p. 43:

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1551977327808&uri=CELEX:32001R1049

[5] Article 41(2)(b) of the Charter guarantees “the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy”.

[6] The REA’s emails of 10, 11, 12, 15 and 22 January, 9 and 21 February 2018 and the REA’s letter of 2 March 2018.

[7] In particular, the REA’s emails of 11, 12, 15 January, 9, 21, 22 February 2018.

[8] The REA’s email of 11 January 2018.

[9] The REA’s email of 22 January 2018.

[10] In particular, complainant’s emails of 11, 12 and 26 January 2018.

[11] Complainant’s emails of 26 January 2018 and 20 April 2018.