Background

1. The right of the public to access documents held by the EU institutions is set out in the EU Treaties and the Charter of Fundamental Rights.[1] It plays a crucial role in ensuring that the EU institutions operate in a transparent manner, thereby reinforcing the legitimacy of and public trust in the EU. The general rules giving effect to this right are set out in the EU legislation on public access to documents (Regulation 1049/2001).[2]

2. To ensure meaningful access, EU institutions should deal with all requests for public access as swiftly as possible. Delays in granting access may undermine the ability of those individuals that request documents to participate in the democratic process of the EU. Individuals might, for example, seek access to documents to be able to follow in detail ongoing legislative or international negotiations or to participate in EU decision or policy making.

3. According to Regulation 1049/2001, requests for public access should be handled “promptly”. There is a time limit of 15 working days for an institution’s decision, both on the initial access request and on requests for review where the institution has initially refused access, either to the entire request or to parts thereof (a ‘confirmatory application’). Each time limit can be extended once by another 15 working days, which means that the EU institutions are expected to take a decision, at initial and at review/confirmatory stage respectively, within a maximum of 30 working days. Failure to comply with the time limits laid down by the legislature cannot be good administration.

4. In recent years, complaints to the Ombudsman concerning public access to documents held by the European Commission show that the Commission does not always meet the time limits and that there is sometimes significant delay before it issues initial and confirmatory decisions. Complainants that regularly make public access requests have also raised concerns that there are now systematic delays in how the Commission deals with requests.

5. Against this background, the Ombudsman opened an own-initiative inquiry to look at the systemic nature of delays in how the Commission handles requests for public access to documents.

The inquiry

6. The Ombudsman first asked the Commission to provide statistical data for the year 2021 on: (i) the number of requests and confirmatory applications it received, and (ii) the time it took to deal with these requests, including how often it exceeded the maximum time limit of 30 working days.[3] The Ombudsman also asked the Commission for information about its (then) plans to introduce an online portal for dealing with public access requests (this has since been launched as the Electronic Access to Commission Documents ‘EASE’ portal).[4]

7. The Ombudsman inquiry team subsequently inspected over 60 Commission files concerning access to documents requests, including requests where the Commission had complied with the time limits and where it had incurred a significant delay. The Ombudsman then asked the Commission to reply to additional questions.

8. The Ombudsman inquiry team also held a meeting[5] with representatives from the Commission to obtain additional information.

The Ombudsman's recommendation

9. The Ombudsman’s inquiry showed that there are delays, including significant delays, in dealing with requests in particular at confirmatory stage. In 2021, while at the initial stage, delays occurred in around 16% of cases, 85% of all confirmatory applications incurred delays. Over 60% of all confirmatory applications were dealt with in more than 60 working days, despite the legal time limit being 30 working days.

10. The EU legislation on public access to documents requires that requests should be handled promptly, and in any case within the applicable time limits, at initial and confirmatory stage. The Ombudsman has consistently taken the view that ‘access delayed is access denied’. Documents sought by requesters may be required quickly and can lose relevance if delays occur.

11. In view of this, the Ombudsman found that the systemic and significant delays in processing requests for public access to documents amount to maladministration. To address this, the Ombudsman made a recommendation that the Commission correct that situation as a matter of priority.[6]

12. The Ombudsman identified four particular issues in the handling of access requests, which can lead to delays, and made corresponding suggestions to the Commission on how to address these. The Ombudsman noted that addressing these issues will go only a small way towards tackling the major issue of delays which requires a more fundamental rethink within the Commission about how it plans to adhere to the timelines set out by the legislature. 

1. Insufficient human resources

Considering the increasing number of confirmatory requests and the fact that that the Commission does not meet the prescribed time limit in the vast majority of cases, the Commission should dedicate more resources to dealing with confirmatory requests.

2. Time-consuming and resource-intensive practices

At the outset of the procedure, following the registration of a request, the Commission should verify whether external consultation will be necessary and, if so, launch that process in a timely way.

Where necessary, the Commission should seek to obtain clarifications from requesters within days of the request being registered.

3. Communication with requesters

The Commission should engage with requesters openly and constructively at all stages, and ensure they are provided with all necessary information that may enable them to clarify their requests (for example by providing a list of documents that potentially fall within the scope of the request).

4. Cancelling confirmatory applications

For confirmatory applications submitted where the Commission has failed to take an initial decision within the prescribed time limits, the Commission should end its practice of calling its decision on the confirmatory application an initial decision.

13. In addition, the Ombudsman stressed the importance of proactive transparency as one of the primary means of securing public trust in the EU administration’s actions, and in obviating the need to request documents and deal with such requests. The Ombudsman also suggested that:

The Commission should continue anticipating policy areas/topics that may generate particular public interest, and ensure proactive transparency in relation to these policy areas/topics, such as by considering in advance what documents should be made public and publishing such information in user-friendly and accessible formats, for example on dedicated webpages.

Documents disclosed in the context of public access requests should be published and easy to find on the Electronic Access to Commission Documents’ Portal. This implies having clear titles that have sufficient information. Guidance on drafting clear titles could be made available to all those involved in dealing with public access requests.

The Commission’s reply to the recommendation

14. In response,[7] the Commission acknowledged the importance of timely handling of requests for access to documents. It referred to the significant increase in the number of public access requests over the past years, which are ever-wider in scope and very complex.

15. The Commission argued that the concerns raised by the Ombudsman mainly relate to a limited part of the requests for access received by the Commission (those reaching the confirmatory stage), that is 4% in 2021 and 5% in 2022. In general, the Commission considered that it has a high level of transparency, as full or partial access is granted to a majority of the requested documents.

16. The Commission then addressed the suggestions made by the Ombudsman in her recommendation:

• It committed to allocate more resources to the team in the Secretariat-General in charge of processing confirmatory applications, without however specifying how many.
• It indicated that that its administrative practices and guidance for staff already cover the Ombudsman’s suggestions in relation to the issue of launching external consultations in a timely way and engaging with complainants to obtain clarifications.
• It considered its practice of cancelling confirmatory applications submitted due to the lack of an initial reply within the statutory deadlines to be a legally sound solution. In the Commission’s view, this practice is the best way to safeguard the rights of applicants, since it preserves the full means of redress (a two-stage procedure) for those making access requests. The practice is also necessary for operational and efficiency reasons, given the decentralised approach within the Commission to handle access to documents requests.
• It noted its constant efforts to improve proactive transparency and referred to its good record in this regard, such as with Brexit or trade negotiations. It committed to continue the proactive publication of documents on its website or via its Register of Documents. The Commission explained in this context that, since the introduction of the EASE portal, all documents disclosed following access requests are published on this portal. The documents can be searched by key criteria, such as title, service, dates, free text, or reference of the document. The Secretariat-General issued specific guidance related to the title or subject of documents to allow readers to easily understand what the document is about without the need to consult it in full. This guidance is available to Commission staff.

The Ombudsman's assessment after the recommendation

17. The Commission’s reply emphasises that the Ombudsman’s recommendation mainly relates to a limited part of the requests for access that reach the Commission, that is 4% in 2021 and 5% in 2022, and that, in general, it has a high level of transparency, as full or partial access is granted to a majority of the requested documents.

18. The Ombudsman insists that the systemic and significant delays in processing confirmatory applications, uncovered during her inquiry, are very concerning. In this context, it is important to set out what delays actually mean in practice. They entail, in the first place, a negative experience with the EU for the citizen concerned and a loss of credibility for the institution. Citizens, for their part, are required to comply unconditionally with time limits imposed upon them by public authorities. It is difficult to see how it should be acceptable that public authorities can disregard the time limits that the law establishes for their action. Moreover, delays defeat one of the very purposes of the right of public access, namely to allow citizens and organisations to participate in public debates and scrutinise the action that public authorities envisage or have taken. Granting access months or years after the matter has been in the public eye can be meaningless. The gravity of this matter is compounded by the fact that, in the Ombudsman’s experience, significant delays occur in cases of great public importance.

19. Based on complaints that have reached the Ombudsman, after the opening of this inquiry, the situation continues to deteriorate. In 2020, the Ombudsman opened 13 inquiries related to delays by the Commission in dealing with requests for public access. Such inquiries have steadily increased. In 2021, there were 22 inquiries, in 2022, 35 inquiries and most significantly in 2023, the Ombudsman has opened 54 such inquiries as of 15 September 2023. 

20. The Commission’s reply to the Ombudsman’s recommendation further suggests that the Commission is already implementing most of her suggestions. This is not what the Ombudsman has seen in her inquiries.

21. In particular, while the Commission indicates in its reply that it has in place, via its guidelines to staff, the good practices suggested by the Ombudsman, these have to be implemented consistently and fully. The complaints that reach the Ombudsman show that this is not the case at present. In the annex to this decision, the Ombudsman has listed examples of delays or problematic practices employed by the Commission in dealing with requests for access to documents.

22. The fact that access requests are becoming more numerous and complex cannot justify that they are not dealt with promptly. As the European Parliament has already proposed, the Commission should adopt swifter, more accessible and further simplified procedures for handling requests about refusals to grant access.[8] It should also look into how it can shorten approval processes. While the new EASE portal is clearly a positive step in terms of interacting with those requesting access and in terms of publication of all disclosed documents, it does not yet seem to have ushered in a major change in the Commission’s internal handling of requests.

23. The Ombudsman welcomes the Commission’s commitment to reinforce the team working on confirmatory applications in the Secretariat-General. She finds it regrettable, however, that the Commission did not provide any concrete elements in its reply on this issue.

24. As regards the Commission’s practice of cancelling confirmatory applications submitted due to a lack of an initial reply, the Ombudsman repeats her view that this practice is at odds with Regulation 1049/2001. Regulation 1049/2001 states that, where an institution fails to take an initial decision within the prescribed time limits, the requester may make a confirmatory application. Once the time limits for adopting a confirmatory decision have expired, the requester can turn to the Court of Justice of the EU or to the European Ombudsman. Currently, the Commission does not inform requesters of the possibility to turn to the Court of Justice of the EU or the Ombudsman in such cases. It merely informs requesters that they may make a new confirmatory application. Applicants are thus not fully aware of the means of redress available to them. The Ombudsman also notes that the Commission deals with requests in this way only because of the delays it is facing in processing access requests at the initial stage.

25. As the largest EU institution, the Commission’s administrative practices are looked to as an example by other bodies, offices and agencies. Where the Commission is systematically deficient in how it deals with requests for public access, this risks undermining the transparency of the entire EU administration. Unless and until the Commission, at the highest levels, demonstrates in practice that transparency is the rule and a priority for the institution, its handling of requests will continue to be delayed.

26. In view of the above, the Ombudsman reiterates her finding that the systemic and significant delays in the Commission’s processing of requests for public access to documents amount to maladministration. The Commission needs, as a matter of priority, to correct this situation.

Conclusion

The Ombudsman closes this strategic inquiry with the following conclusion:

The Ombudsman confirms her finding that systemic and significant delays in the Commission’s processing of requests for public access to documents amounts to maladministration.

Given the importance of this matter, the Ombudsman will bring it to the attention of the European Parliament by way of a Special Report.

The Commission will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 18/09/2023

 

[1] The right to access documents held by the EU institutions is enshrined in Article 15 of the Treaty on the Functioning of the European Union: https://eur-lex.europa.eu/eli/treaty/tfeu_2016/art_15/oj, and also recognised in Article 42 of the Charter of Fundamental Rights of the EU: https://eur-lex.europa.eu/eli/treaty/char_2012/oj.

[2] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/eli/reg/2001/1049/oj. Regulation 1049/2001 applies directly to the European Commission, the Council of the EU and the European Parliament. However, many other EU institutions, bodies, offices and agencies apply the same principles, which in practice means that they apply the Regulation or have adopted decisions setting out how they apply it.

[3] The Commission’s reply is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/167660.

[4] The ‘Electronic Access to Commission Documents’ Portal (EASE) through which requests for public access to documents can be made was launched in September 2022 and is available at: https://ec.europa.eu/transparency/documents-request/home.

[5] The meeting report is available here: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/167659.

[6] The Ombudsman’s recommendation on the time the European Commission takes to deal with requests for public access to documents is available at: https://www.ombudsman.europa.eu/en/recommendation/en/167661.

[7] The Commission’s opinion on the recommendation is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/174167.

[8] European Parliament Resolution on public access to documents – annual report for the years 2019-2021, paragraph 42: https://www.europarl.europa.eu/doceo/document/A-9-2023-0179_EN.html.