Own-initiative inquiry: OI/2/2022/MIG

Case title: The time taken by the European Commission to deal with requests for public access to documents

Date: Monday, 16 January 2023

Remote meeting via Webex

Present

European Commission

Deputy Head of Unit, Secretariat-General

Senior Expert, Secretariat-General

7 Legal and Policy Officers, Secretariat-General

European Ombudsman

Ms Michaela Gehring, Inquiries Officer

Ms Tanja Ehnert, Inquiries Coordinator

Ms Jennifer King, Legal Expert

Ms Oana Marin, Inquiries Officer

Ms Silvia Fuller, Inquiries Officer

Ms Leila Kentache, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain further information and a full understanding of how public access to documents requests are handled by the Commission.[1] For this purpose, the inquiry team shared a list of questions with the Commission prior to the meeting.

Introduction and procedural information

The meeting started at 10:00 am and ended at around 11:45 am.

The Ombudsman inquiry team outlined the legal framework that applies to meetings held by the Ombudsman and, in particular, that the Ombudsman would not disclose any information identified by the Commission as confidential without the Commission’s prior consent.[2]

The inquiry team explained that a report on the meeting will be drawn up and that a draft version of the report will be sent to the Commission for review to ensure that it is factually accurate and complete and that it does not contain any confidential information. The meeting report will then be finalised and, at a later stage, be published on the Ombudsman’s website.

Information obtained

The Commission representatives gave an opening statement in which they recalled the increased amount of requests for public access to documents the Commission receives. They noted that access requests become more and more complex every year both in terms of their scope and the type of documents that are requested (as examples, the Commission representatives referred to access requests the Commission received concerning COVID-19 vaccines and the Recovery and Resilience Facility). They also recalled the launch of the Commission’s new EASE portal through which applicants can make public access requests[3] and which facilitates dealing with such requests.

The Commission then addressed the questions raised by the Ombudsman inquiry team:

General reasons for delays

The general reasons for delays listed by the Commission in its reply dated 29 June 2022 are not necessarily reflected in the inspected files. Is it possible to set out any other factors that might lead to delayed processing times? In this context, could you please briefly explain, step by step, the Commission’s procedure for dealing with access requests (from the registration of an access request to the adoption of the final decision), e.g. who is involved and what is the internal time line?

The procedure starts when the request for public access is received. Applicants normally send their request either directly to the responsible Directorate-General (DG) or to the Secretariat-General (SG) which then forwards it to the responsible DG (this is usually done very quickly, but it can take longer if it is unclear whose remit the request concerns, i.e., wide requests or where the scope is unclear). The Commission regularly receives requests for documents covering topics falling under the remit of more than one DG. In such cases,  one DG becomes the ‘lead service’ and the other DGs become ‘associate services’. The different DGs then have to coordinate.

Within a DG, the access request is dealt with by the access to documents (A2D)-coordinator or by a policy unit with the support of the A2D coordinator. If questions on horizontal (legal or administrative) matters arise during the processing of an access request, the DG can turn to the SG helpdesk for guidance.

As regards the approval of the decision, the procedure takes more time where a partial or full negative reply is issued, as this has to be signed by the responsible Director-General in accordance with the Detailed rules for the application of Regulation 1049/2001.[4]

Amongst other steps that prolong the procedure at this stage are recurrent translation needs, the identification of the requested documents (particularly where requests are formulated broadly) and possible negotiations with the applicant on a ‘fair solution’ under Article 6(3) of Regulation 1049/2001.

At the confirmatory stage, all access requests are dealt with by the SG. In doing so, the SG relies on the input from the responsible DG(s), for example, to understand the circumstances of the case. However, this feedback is generally not readily available, namely, the A2D-coordinator has to contact the policy unit in their DG again (for example, if there are new factual or legal circumstances that have to be taken into account).

Like at the initial stage, the SG also recurrently has to go back to the applicant to ask for clarification of their request, consult Member States (through their Permanent Representations) or other third parties, and translate relevant documents.

As applicants can challenge the lawfulness of the Commission’s confirmatory decision before the EU court, the confirmatory stage is more complex and more sensitive. This means that also the Commission Legal Service (LS) is involved in the process and has to approve the draft confirmatory decision, before the draft can be submitted for the signature of the Secretary-General.

The Commission representatives also stressed that the number of confirmatory requests, which the Commission receives, has increased considerably in recent years. The increase in the number of cases, their complexity and ever-wider scope, is not proportionate with the additional staff that has joined the team dealing with confirmatory requests, and therefore the number of cases per case handler has increased in recent years. At the moment, the team dealing with confirmatory requests and some of the initial requests under the remit of the SG, is composed of ten case handlers.  

All case handlers, and some assistants, are also responsible for other tasks linked to access to documents. Inter alia, they all provide horizontal advice to coordinators from the DGs through the legal helpdesk. Moreover, certain staff members are also coordinating relations with the Ombudsman, deputising as data protection coordinator for SG, replying to questions from the European Parliament, giving training on access to documents, organising and coordinating the SG access to documents network, drafting the annual report on access to documents, acting as business manager for EASE, etc.

As regards possible efficiency gains through the new EASE portal, the Commission representatives explained that many administrative steps are now automatised (such as the registration of correspondence in the Commission’s document management system ARES). As regards case-handling, this tool does not facilitate those steps of the procedure that are carried out by case handlers, such as analysing and redacting the requested documents. Nor does it automate the process of third party consultation. It does, however, allow managers to monitor the progress of cases and facilitates the efficient assignment of new cases.

Internal consultations

In its reply of 29 June 2022, the Commission said that the consultation of the LS can involve several exchanges. However, this is not reflected in the sample files, which generally include one email from the SG submitting the draft confirmatory decision to the LS and one email from the LS approving the draft. Could you please explain the procedure for consulting the LS in more detail?

According to the Commission’s Detailed rules for the application of Regulation 1049/2001, confirmatory replies constitute Commission decisions, i.e., documents of legal nature, which means they must be approved by the LS. The consultation of the LS at the confirmatory stage is thus mandatory. The LS is therefore consulted as soon as possible on the draft confirmatory decision in all cases (the relevant exchanges are registered on the file).

In some cases, further exchanges with the LS might be needed, for example, where the LS needs additional clarifications before giving its opinion or where the SG requires input/guidance from the LS before it can finalise the draft confirmatory decision.

LS consultations may take more time if the scope of the access request is wide and where, given the nature of the documents, they have to be screened in detail.

Based on the inspection of the sample files, it seems that other Commission services (and Commissioners’ Cabinets) sometimes get involved in dealing with access requests.^[5] Is it possible to describe in which types of cases, at what stage in the process and how other services are consulted?

A Commissioner’s Cabinet is normally involved where the access request concerns documents that originate from that Cabinet (or reflect its views on a subject). The DG dealing with the access request then asks the Cabinet to identify the documents concerned and/or to provide comments on the possible disclosure of the documents.

Other Commission services might also be consulted, for example, where a document is the result of an inter-service consultation.

External consultations

In many of the cases inspected, the Commission launched the consultation with Member States/third parties rather late, sometimes after the expiry of the extended deadline of 30 workings days. What are the reasons for this?

As a general practice, the Commission first conducts a preliminary assessment and then shares this when consulting a Member State or a third party. . This approach facilitates the dialogue with the Member State/third party. Specifically, it helps the Member State/third party to understand the Commission’s intentions and to reach a positive outcome (where the intention is to give public access). Pursuant to the principle of sincere cooperation, the Commission is bound to undertake a genuine dialogue with the Member State as to the application and underlying justification of an exception under Article 4 which is invoked by the latter[6]. Furthermore, aconstructive dialogue with Member States renders it less likely that the Commission has to overrule a Member State’s opposition to disclosure and may thus avoid Court action, which could result in the disclosure of the documents being put on hold until the Court adjudicates.

In case GestDem 2020/7563, the Member States concerned were consulted twice at the confirmatory stage (in June 2021 and then again in November 2021). What was the reason for this? Is it possible to explain why the case was not advanced between January 2021 and June 2021 and between July 2021 and November 2021?

As regards case GestDem 2020/7563, the related access request concerned a large number of documents (around 70), some of which were identified only at the confirmatory stage. In addition, the Commission had to consult 27 Member States (some of them have insisted to correspond in their own language rather than in English) and it had to ensure a consistent approach. To this end and as some Member States initially opposed disclosure, the Commission engaged in a dialogue with these Member States in accordance with the duty of sincere cooperation. In the end, a positive outcome was achieved for the applicant. 

(Seemingly) dormant cases

Based on the inspection of the sample files, it would appear that cases are, at times, not advanced at all.^[7] Is it possible to set out the reasons for such delays?

The Commission representatives said that cases are not dormant. Rather, they might entail intensive internal consultations (which are not recorded on the file if they are “informal” in nature). However, they also recalled the huge amount of access requests received and the issue of limited human resources experienced during the relevant period (which resulted in significantly high workload of the case handlers who consequently had to prioritise cases at times).

As regards the sample cases mentioned by the Ombudsman inquiry team, the delays were in part due to workload issues. In addition, several of these cases raised difficult legal questions. Another case concerned a sensitive topic and had to be discussed at length (at the confirmatory stage) both with the DG and the LS.

Requests for clarification/proposals for a fair solution

The inspection of the sample files showed that the Commission sometimes follows-up with applicants rather late.^[8] Is it possible to provide further information about these timelines and how they came about? Could you please explain the steps taken by the Commission when requesting clarification/proposing a fair solution?

Requests for clarification are normally sent to applicants by the responsible DG at the initial stage. They serve to clarify the scope of an access request where it is unclear or formulated in a broad or vague manner. The timeline then starts once it is clear to what documents the applicant is seeking access.

The Commission proposes a fair solution to the applicant where the scope of the access request is too large, i.e., it would not be possible to process the access request within the timeline set out in Regulation 1049/2001. Where a fair solution is required, the Commission tries to understand what documents could be most useful to the applicant and then proposes a very concrete solution (e.g., that the scope of the access request be limited to certain categories of documents or samples thereof). To this end, the Commission conducts a first assessment of the documents so as to be able to categorise them and to describe them to the applicant concerned. This can be a rather time-consuming exercise. The Commission representatives also mentioned that the timeline is not suspended while a fair solution is sought with the applicant.

As regards the sample cases referred to by the Ombudsman inquiry team, the Commission representatives said that one case concerned a large number of documents (500), all of which had to be screened and categorised before a proposal could be made. This exercise took the Commission a considerable amount of time. In another case, the delay in proposing a fair solution was due to human resource issues and because some documents were identified only after several weeks. It was thus not clear in the beginning that a fair solution would have to be sought.

Cancellation of confirmatory requests

The inspection of the sample files showed that the SG in some cases did not process the applicant’s confirmatory request. Rather, even after the submission of the confirmatory request, the DG continued its assessment of the case and issued a decision. The SG then cancelled the confirmatory request informing the applicant that they could make a new confirmatory request. When does the Commission apply this approach or is this a common practice in all cases where the initial decision is delayed? What is the legal basis for this approach?

The Commission representatives explained the Commission’s current practice as regards confirmatory applications concerning the lack of initial reply, which precedes the new EASE tool but is also reflected in it. This practice safeguards the applicant’s right to have a two-stage-procedure and, thus, be able to challenge the Commission’s reasons for non-disclosure (where access is refused). Therefore, where no express initial decision by the DG has been adopted when a confirmatory request is received by the SG, the DG will continue dealing with the case. The SG monitors the swift adoption of the initial reply. However, if the DG needs guidance on horizontal matters, the SG will provide it .

Conclusion of the meeting

The Ombudsman inquiry team thanked the Commission representatives for their time and for the explanations provided, and the meeting ended.

Brussels, 16 January 2023

 

Jennifer King                                                                                                              Michaela Gehring

Legal Expert                                                                                                                 Inquiries Officer

 

[1] Under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] https://ec.europa.eu/transparency/documents-request/home

[4] Commission Decision of 5 December 2001 amending its rules of procedure: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32001D0937.

[5] For example, in case GestDem 2021/6486, the DG concerned referred in its exchanges with the SG to consultations with a Commissioner’s Cabinet at the initial stage (see document Ares(2022)182286).

[6] Judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 85.

[7] For example, cases GestDem 2021/389, 2021/4789, 2021/4394 and 2021/3460.

[8] For example, in cases GestDem 2021/468, 2021/2928 and 2021/6091.