The background to the complaint

1. The complaint was submitted on behalf of a non-governmental organisation (hereinafter 'the complainant') by its representative.

2. In 2003, under the Reconstruction Programme for Afghanistan, the Commission signed two contracts with the complainant for the implementation of two EU projects in Afghanistan. Both projects aimed at the development of media in Afghanistan, namely, by creating a community of independent journalists and by contributing to the development of independent media.

3. In March 2007, after the projects had ended, the European Anti-Fraud Office ('OLAF') opened an external investigation into possible irregularities in relation to the implementation of the two projects. It informed the complainant accordingly.

4. In April 2007 and, subsequently, in June 2008, OLAF carried out on-the-spot checks at the complainant’s headquarters.

5. In May 2008, the Commission appointed an external audit firm to carry out an audit of the two contracts.

6. In April 2009, the Commission issued two recovery orders for the entire amount it had paid for the two projects.

7. On 28 April 2009, the complainant made a request to OLAF for access to all the documents related to the investigation which its services had carried out into the two projects.

8. On 10 September 2009, OLAF informed the complainant that it had handled its request for access under 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 ("Regulation 1049/2001")[1]. It provided the complainant with a copy of its final investigation report. It drew the complainant's attention to the fact that some parts of the report were covered by the exception concerning the protection of privacy and integrity of individuals, provided for by Regulation 1049/2001, and consequently, had been removed. OLAF also informed the complainant that it could submit a confirmatory application against the partial disclosure of the report.

9. The complainant did not submit a confirmatory application. However, on 15 March 2010, the complainant submitted a new request for access to documents. In this new request, it ask to be given access to: a) the totality of the files held by OLAF concerning the complainant's case;  b) all the documents on which OLAF relied to draft its final investigation report of 3 October 2008;  c) the minutes or any report concerning the meeting with the complainant's statutory auditor on 17 June 2008 and any documents relating to information gathered by OLAF from the statutory auditor;  and d) any documents relating to the audit of the complainant performed by the external auditor appointed by the Commission.

10. On 15 April 2010, OLAF replied to the complainant's new request for access to documents. It asked the complainant to clarify that request, indicating that "in its current state, [it] would concern an excessive number of documents".

11. On 5 May 2010, the complainant provided the requested clarifications in a confirmatory application concerning its request of 15 March 2010 for access to documents.

12. On 20 July 2010, OLAF replied to the complainant's confirmatory application. On the basis of the complainant's confirmatory application, OLAF identified the following documents as being subject to the request for access:

a. OLAF Final Case Report of investigation OF/2006/0409 dated 3 October 2008;

b. The internal OLAF case document dated 3 July 2008;

c. Terms of Reference audit of the project;

d. Record of the administrative control, registered under N. I/04026 on 4 May 2007;

e. Record of the administrative control, registered under N. I/04027 on 4 May 2007;

f. Mission report, registered under N. I/04218 on 10 May 2007; and

g. Acte du contrôle et vérifications sur place, registered under N. I/006998 on 3 July 2008

13. OLAF fully disclosed document c. (set out in paragraph 12 above). It further confirmed partial access to document a., as disclosed to the complainant on 10 September 2009. OLAF refused to disclose documents b. and d.-g. because they were covered by four exceptions provided for by Regulation 1049/2001, namely, (i) protection of privacy and integrity (Article 4(1)b of that Regulation); (ii) protection of commercial interests (Article 4(2), first indent); (iii) protection of the purpose of inspections, investigations and audits (Article 4(2), third indent); and (iv) protection of the Commission’s decision-making process before a decision has been taken (Article 4(3), first subparagraph).

14. On 12 April 2011, the complainant turned to the Ombudsman.

The subject matter of the inquiry

15. In its complaint to the European Ombudsman, the complainant submitted the following allegation and claim.

Allegation:

OLAF’s decision to disclose only some of the documents requested by the complainant was unjustified.

Claim:

OLAF should give access to all the documents it holds concerning the complainant's case.

The inquiry

16. On 18 May 2011, the Ombudsman opened an inquiry and asked OLAF to provide an opinion on the complaint by 31 August 2011.

17. In the meantime, on 27 June 2011, in accordance with Article 3(2) of the Ombudsman's Statute[2], the Ombudsman's services carried out an inspection of the relevant documents in OLAF's file[3]. OLAF considered the inspected documents to be confidential. This meant that the public and the complainant could not have access to them.

18. A copy of OLAF's opinion was forwarded to the complainant with an invitation to submit observations.

19. The complainant sent its observations on 29 September 2011.

20. On 30 November 2011, the Ombudsman asked OLAF for further information regarding certain aspects of the case. OLAF replied to the Ombudsman's further inquiries on 6 February 2012.

21. OLAF's reply to the Ombudsman's request for further information was forwarded to the complainant, which, on 2 April 2012, submitted its observations on that reply.

The Ombudsman's analysis and conclusions

A. Alleged unjustified refusal to disclose the requested documents and related claim

Arguments presented to the Ombudsman

22. In support of this allegation, the complainant argued that OLAF interpreted too broadly the exceptions to the right of access.

23. In addition, it did not agree with OLAF that the requested documents could not be disclosed because they were covered by the four exceptions provided for in Regulation 1049/2001. The complainant went on to argue that, first, OLAF failed to justify how disclosure of the documents would actually and specifically undermine the interests protected by the exceptions concerning the protection of privacy and commercial interests; second, OLAF wrongly invoked the exception concerning the protection of the purpose of inspections, investigations and audits, given that OLAF's investigation had ended on 3 October 2008, that is to say, before the complainant submitted its request for access to documents; third, the exception concerning the Commission's decision-making process was not applicable because the Commission had taken the decision to recover the amount paid under the two contracts on 21 April 2009, that is to say, before the complainant submitted its request for access to documents; finally, OLAF failed properly to consider the overriding public interest in disclosure and wrongly refused partial access to the concerned documents.

24. In its opinion, OLAF stated that, in accordance with Regulation (EC) No 1073/1999[4] (hereinafter 'OLAF Regulation'), it must treat the information obtained during an investigation as confidential and subject to professional secrecy. OLAF emphasised that the interested parties have no specific right of direct access to the OLAF investigation file. The interested parties have a right of access under the same terms and conditions as any other natural or legal person[5]. Consequently, the complainant's requests for access to documents had been  dealt with under Regulation 1049/2011. In doing so, OLAF needed to take into account that any document it disclosed would enter the public domain.

25. OLAF further took the view that it had properly justified its decision to refuse or partially refuse access to the requested documents in its correspondence with the complainant.  In its reply to the confirmatory application, OLAF exhaustively explained that the non-disclosed documents and/or parts thereof were covered by four exceptions provided for by Regulation 1049/2001. OLAF elaborated on these exceptions in the opinion.

26. OLAF stated that as regards documents a.-b. and d.-g. (set out in paragraph 12 above), the exception concerning the purpose of inspections, investigations and audits (Article 4(2), third indent, of Regulation 1049/2001[6]) applied because the relevant documents contain OLAF findings regarding OLAF investigative activities and possible mismanagement of EU funds. The disclosure of those documents would jeopardise the outcome of the administrative/financial follow-up by the Commission, namely, the ongoing recovery proceedings. Its disclosure would reveal what kind of evidence had been gathered from different sources. If that evidence were disclosed, the entities under investigation would be aware of what evidence had been collected before the evidence-gathering process could be completed.

27. Moreover, the above-mentioned documents contain names of OLAF investigators who will have to give their opinions and share expertise in future investigations. Thus, OLAF stated that it must take all measures in order to avoid exposing its staff to external undue pressure, which would result in a serious undermining of possible future investigations and of its decision-making process. Public disclosure of the identity of those investigators would (i) impair their capacity to conduct other investigations independently; and (ii) facilitate and encourage direct criticism against them. That would ultimately interfere with OLAF’s capacity to initiate, conduct and finalise investigations on illegal activities prejudicial to the EU budget.

28. Finally, the information received from complainants and witnesses is a very important source of information for OLAF. Public disclosure of their identity or of the information provided would discourage private persons from sending OLAF information about possible fraud that is prejudicial to the EU budget and  would thus deprive OLAF of an essential source of information for its investigations.

29. OLAF stated that parts of the documents, that is, documents a.-b. and d.-g., set out in paragraph 12 above, were covered by the exception concerning the protection of privacy and integrity of individuals (Article 4(1)(b) of Regulation 1049/2001[7]) because the documents contain personal data of individuals, such as complainants, OLAF investigators, employees of private companies, the disclosure of which would affect their privacy. That protection also applied to the complainant. The documents containing those data refer to mismanagement of EU funds and OLAF investigations.  Moreover, the financial follow-up proceedings are still ongoing. The public disclosure of names and personal data in such context would cast those persons in a negative light and would give rise to possible misrepresentation about their performance, thus having an adverse effect on their reputation.

30. OLAF further stated that the exception concerning the protection of the Commission’s decision-making process before a decision has been taken (Article 4(3), first subparagraph, of Regulation 1049/2001[8]) applied because the recovery proceedings were ongoing and disclosure of the documents in question would jeopardise the outcome of such proceedings and interfere with the Commission’s capacity to adopt a final decision free from external influence.

31. OLAF indicated that the exception concerning the protection of commercial interests (Article 4(2), first indent, of Regulation 1049/2001[9]) applied because the documents contain names and commercially sensitive information (like contracts) on private entities, the disclosure of which would harm their reputation or other legitimate business interests.

32. OLAF noted that, in its confirmatory application, the complainant did not identify any overriding public interest which could justify the disclosure of the documents in question. OLAF pointed out that it had carried out a specific assessment of the documents concerned and had duly reasoned its refusal to disclose them.

33. OLAF also indicated that, in the meantime, it had provided the Commission's Legal Service with the document entitled "The internal case document dated 3 July 2008". This service is in charge of enforcing the recovery of the amounts relating to the two projects concerned by OLAF's investigation. At the request of the Legal Service, on 27 June 2011 OLAF granted the Commission permission to disclose that document to the complainant in the framework of the conciliation procedure provided for by the grant contract. OLAF noted that that might lead to the actual disclosure of that document to the complainant in the framework of the enforced recovery procedure.

34. Finally, OLAF apologised for the delays in handling the complainant's requests for access to documents. It explained that those delays occurred because of the complexity of the case, the ongoing follow-up procedures, translation of documents and need to contact the competent EU authorities.

35. In its observations, the complainant stated that, on 15 September 2011, the Commission had granted it access to the following documents:  a) Audit certificate dated 19 January 2005 bearing "the forged" signature of the complainant's statutory auditor; b) Audit certificate dated 5 April 2005 in  which the complainant's statutory auditor admitted that the audit was not carried out; c) PV d’audition de Monsieur X [complainant's statutory auditor] dated 17 and 18 June 2008; and d) PV d’audition de Monsieur X [complainant's statutory auditor] of 17 June 2008.

36. The complainant pointed out that the Commission had not provided it with the document entitled "The internal case document dated 3 July 2008", despite the statement made by OLAF in its opinion. Furthermore, the complainant noted that it did not have access to the documents mentioned in the Ombudsman's inspection report.

37. In the complainant's view, OLAF could have granted at least partial access to the requested documents. Furthermore, the risk that any document that might be disclosed would enter the public domain could not justify the refusal to grant access to the requested documents.

38. In reply to the Ombudsman's request for further information[10], OLAF sent a letter to the complainant granting it partial access to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007". It maintained that the non-disclosed parts of the document were covered by two exceptions provided for by Article 4 of Regulation 1049/2001, to wit, the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent); and the protection of the privacy and the integrity of the individual (Article 4(l)(b)).

39. As regards the exception concerning the protection of the purpose of inspections, investigations and audits, OLAF explained that the document entitled "Mission report, registered under N. I/04218 on 10 May 2007" contains OLAF findings regarding one of its investigative activities with regard to possible mismanagement of EU funds. The relevant information had been transmitted to the EuropeAid Cooperation Office to enable it to decide whether or not to initiate financial and/or administrative follow-up proceedings. Following the transmission of that information, the Commission did indeed initiate the recovery procedure. The document contains the names of OLAF investigators, which could not be disclosed because these officials are involved in a number of investigations conducted by OLAF and will have to share expertise and give opinions in other, future cases. Given the sensitivity of OLAF investigations and the required expertise, OLAF must take all measures in order to avoid exposing its investigators to undue external pressure, which would result in a serious undermining of possible future investigations.  Furthermore, the information received from complainants is a very important source of information for OLAF. Public disclosure of the identity and information directly or indirectly related to informants would undermine OLAF's future investigations because  it would discourage private persons from sending OLAF information about possible fraud that is prejudicial to the EU budget. Such an eventuality would deprive OLAF and the Commission of initial information and would undermine the essential element for the launching of investigations designed to protect the financial and economic interests of the EU, and to fight any other illegal activity prejudicial to the EU budget.

40. OLAF stated that, as regards the exception related to the protection of privacy and the integrity of the individual, the above-mentioned document contains, inter alia, the personal data of individuals, such as complainants, persons concerned, officials of OLAF and of the Commission, employees of private companies, etc., which if disclosed, would, according to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ("Regulation 45/2001"), clearly undermine the privacy and the integrity of the individuals concerned. As regards names of complainants, persons concerned and employees of private companies, the non-disclosed parts of the document contain the names of individuals and information which refers to the reputation of these persons. Public disclosure of the names of individuals and other personal information in such context would cast those persons in a negative light and would give rise to possible misrepresentations about their performance. Consequently, such disclosure would have an adverse effect on their reputation and, therefore, undermine the protection of privacy and the integrity of the individuals concerned.

41. OLAF took the view that it could not identify any overriding public interest which could justify full disclosure of the document entitled "Mission report, registered under N. I/04218 on 10 May 2007". Finally, OLAF invited the complainant to submit a confirmatory application, should it wish to seek a review of the above decision taken by OLAF.

42. In its observations on OLAF's reply to the Ombudsman's request for further information[11], the complainant noted that OLAF did not provide it with the annexes to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007" and the documents on which OLAF relied to draft that document, in particular, the complaint lodged with OLAF against the complainant on 1 June 2006 and other documents concerning the investigation carried out by OLAF between October 2005 and September 2009.

43. The complainant noted that, up to that time, that is to say, the submission of the observations, OLAF had granted it partial access to the following documents: OLAF Final Case Report of investigation OF/2006/0409 dated 3 October 2008, and "Mission report, registered under N. I/04218 on 10 May 2007". OLAF had not granted it access to important information contained therein. In addition, OLAF refused to disclose four documents listed in the Ombudsman's report of the inspection of the file, namely, 1) Acte du contrôle et vérifications sur place, registered under No I/006997 on 3 July 2008[12];  2) Acte du contrôle et vérifications sur place, registered under No I/006998 on 3 July 2008; 3) Record of the administrative control, registered under No I/04026 on 4 May 2007; and 4) Record of the administrative control, registered under No I/04027 on 4 May 2007. According to the complainant, the exceptions invoked by OLAF could not justify its refusal to grant access to the requested documents. In this respect, the complainant referred to the relevant case-law[13] and stated that the fact that a document contains personal data could not alone justify the refusal to grant access. Should OLAF's approach be accepted, it would mean that access would be refused to all documents containing personal data. In any event, OLAF's letter of 6 February 2012 did not contain any reasons justifying its refusing access to the three documents annexed to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007"; the documents on which OLAF relied in order to draft that document; and the above-mentioned documents identified in the Ombudsman's report of inspection.

44. The complainant also noted that, although OLAF provided its reply of 6 February 2012 in the framework of the Ombudsman's inquiry, it applied the procedure set out in Regulation 1049/2001, namely, by inviting the complainant to submit a confirmatory application. In this respect, the complainant pointed out that its initial request for access was submitted on 15 March 2010, to which OLAF replied on 15 April 2010. Subsequently, it made a confirmatory application, to which OLAF replied on 20 July 2010. The complainant stressed that OLAF's letter of 6 February 2012 could not be considered as replying again to its initial application for access. It was a document submitted in the framework of the Ombudsman's investigation.

45. Nevertheless, on 1 March 2012, the complainant responded to OLAF's invitation and submitted a confirmatory application. In this application, it requested access to a) the document entitled "Mission report, registered under N. I/04218 on 10 May 2007" in its entirety; and b) all documents and information on which OLAF relied to draft the mission report and the final report, in particular: (i) the complaint lodged against the complainant on 1 June 2006 and all additional information provided to OLAF on 17 June 2006 and in September 2006; (ii) all the hearing reports made by OLAF in its inquiry, namely in September 2006 and April 2007; (iii) the above-mentioned three documents listed in the Ombudsman's inspection report; and (iv) all documents held by OLAF in relation to the two contracts.

The Ombudsman's assessment

Preliminary remarks

46. In its reply to the Ombudsman's further letter, OLAF invited the complainant to submit a new confirmatory application, should it be dissatisfied with partial disclosure of the document entitled "Mission report, registered under N. I/04218 on 10 May 2007". The complainant did so but objected to this invitation. The Ombudsman shares the complainant's objection. As rightly pointed out by the complainant, OLAF's reply of 6 February 2012 was a procedural step within the framework of the Ombudsman’s inquiry. The Ombudsman's letter to OLAF of 30 November 2011, to which OLAF replied, was not and could not be a new request for access to documents under Regulation 1049/2001 submitted on behalf of the complainant.  Indeed, before submitting its complaint to the Ombudsman, the complainant had applied for access to this specific document and OLAF had already taken a position on this request; therefore, the original complaint to the Ombudsman covered this document. There was no need for a separate procedure under Regulation 1049/2001 to be conducted in parallel to the Ombudsman's inquiry regarding this specific document. In light of the foregoing, the Ombudsman is entitled to review OLAF's refusal of 6 February 2012 to give full access to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007", without waiting for OLAF's reply to the complainant's confirmatory application dated 1 March 2012.

47. The above considerations, however, refer only to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007". The Ombudsman notes that the complainant’s confirmatory application dated 1 March 2012 was not limited to the full disclosure of the document entitled "Mission report, registered under N. I/04218 on 10 May 2007" but extended considerably the scope of its initial request for access dated 15 March 2010 and its confirmatory application dated 5 May 2010[14]. Pursuant to Article 2.4 of his Statute, the Ombudsman cannot deal with these new requests before the complainant has complied with the procedure provided for by Regulation 1049/2001. The Ombudsman considers it appropriate to invite the complainant to submit a new complaint if it wishes to complain about OLAF's reply to its new confirmatory application in so far as it concerns the disclosure of the new documents requested by the complainant.

48. Furthermore, the Ombudsman notes the complainant's argument that it did not have access to the documents mentioned in the Ombudsman’s inspection report. In this regard, the Ombudsman recalls that Article 4(1) of the European Ombudsman's Statute sets out that the Ombudsman and his staff "shall be required not to divulge information or documents which they obtain in the course of their inquiries".  Under Article 5.2 of the European Ombudsman's Implementing Provisions, the Ombudsman may inspect the file of the institution concerned. The institution must clearly identify any documents in the file which it regards as confidential. Article 13.3 of the same Implementing Provisions prevents complainants from having access to documents which have been identified to the Ombudsman as confidential. Therefore, the Ombudsman cannot disclose or quote from documents which the institution considers to be confidential, or refer to them in such a way that their content might be disclosed. However, the Ombudsman notes that OLAF granted full access to the documents listed in the inspection report as documents 3 to 5[15]. This observation is confirmed by the copies which the complainant enclosed with its complaint[16].

49. In light of the findings set out above in paragraphs 46 and 48, the Ombudsman's present assessment will concern OLAF's handling of the complainant's request for access to the following documents: (1) OLAF Final Case Report of investigation OF/2006/0409 dated 3 October 2008; (2) "Mission report, registered under N. I/04218 on 10 May 2007"; and (3) the internal OLAF case document dated 3 July 2008.

The Ombudsman's assessment regarding partial disclosure of documents 1 and 2

50. At the outset, the Ombudsman notes that, although partial, the access granted on 10 September 2009 and 6 February 2012 to documents 1 and 2 was nevertheless extensive and that the disclosed parts of these documents provide a considerable amount of information. This suggests that, before providing partial access, OLAF first carefully selected those specific parts of the texts it considers to be covered by the exceptions referred to in its reply to the complainant's confirmatory application dated 5 May 2010.

51. In order to justify its decision to grant partial access to both document 1 and document 2, OLAF put forward the same four reasons.

52. First, OLAF invoked the exception concerning the protection of the purpose of investigations, under Article 4(2), third indent, of Regulation 1049/2001[17]. In its view, the purpose of the Commission's ongoing recovery proceedings could be endangered if the full information contained in the documents were made public. That would be the case, in particular, if the identity of OLAF's investigators, complainants and witnesses were disclosed. In addition, if the relevant names became publicly known, such disclosure could have a negative impact on OLAF's future investigations. Second, full disclosure of documents 1 and 2 could jeopardise the Commission's decision-making process as to whether or not to close the ongoing recovery proceedings.[18]  Third, OLAF relied on the exception concerning the privacy and the integrity of an individual and the exception concerning the protection of personal data, set out in Article 4(1)(b) of Regulation 1049/2001[19] to refuse access to the names of its investigators and of the Commission's employees, contained in documents 1 and 2. Fourth, OLAF referred to the need to protect the commercial interests of private entities by applying the exception laid down in Article 4(2), first indent, of Regulation 1049/2001[20].

53. As regards OLAF's first reason, the Ombudsman can agree with OLAF that there is a need to protect the identity of OLAF's complainants and witnesses, as well as the information they provide for the purpose of OLAF's future investigations, and that such need could justify the refusal to disclose the requested documents in full. The Ombudsman's services inspected the relevant OLAF file. The inspection showed that the relevant files did, indeed, contain detailed information about specific individuals, as well as details about the information they provided to OLAF for the purposes of its investigation against the complainant. It is difficult to see which overriding public interest could justify the disclosure of such data.

54. The Ombudsman cannot agree, however, with the explanation given by OLAF regarding the need to protect the identity of its investigators in the context of its future investigations. OLAF's argument is that failure to protect the identity of its investigators would have a negative impact on OLAF’s capacity to conduct investigations on illegal activities prejudicial to the EU budget. In this respect, the Ombudsman notes that, as shown by the documents submitted by the complainant, OLAF did, in fact, disclose to the complainant the identity of some of its investigators, while it refused to disclose the names of others.  OLAF did not explain this difference in treatment.

55. In addition, as stated by the Court in My Travel II[21] and as found by the Ombudsman in other inquiries (concerning, however, Commission officials acting in the competition/state aid proceedings rather than OLAF investigators)[22], transparency may help those officials work better and may ultimately contribute to a culture of service. Fearing the risk that its officials would censor themselves, OLAF invoked as grounds for its position on the matter the need to avoid exposing its investigators to external undue pressure on future occasions in which they are called to give their opinion and share their expertise in investigations. However, this position may be difficult to reconcile with the duties of those civil servants. In fact, such censorship would amount to a strategy to circumvent the accountability of the Union institutions to its citizens, sought by Article 15(3) TFEU and Regulation 1049/2001. As the Advocate General pointed out in My Travel II "the interpretation of Union legislation cannot be based on the fear that those provisions might be circumvented by the institutions. If such fears were well-founded, measures would have to be taken to prevent circumvention".[23]

56. With reference to the second exception relied upon by OLAF (protection of the decision-making process), the Ombudsman notes that the Commission's decision-making process regarding the decision to recover the amount paid to the complainant for the two contracts (as evidenced by the two recovery orders) has ended and that only its recovery proceedings are ongoing. While it is true that, during the recovery proceedings, the Commission could decide to waive recovery or change the amount to be recovered, such action concerns rather the execution and implementation of the recovery orders and does not constitute part of the decision-making process. Furthermore, given the nature of the investigation and of the allegations brought against the complainant, the Ombudsman recalls that it is vital for the respect of the complainant's rights of defence that all the relevant information be made available to the complainant. The Ombudsman does not therefore find  OLAF's explanation concerning the protection of the Commission's decision-making process to be convincing.

57. As regards OLAF's third reason, the Ombudsman's inspection of OLAF's file showed that the part of the two documents that had been blacked out contained the personal data of individuals, such as complainants, OLAF investigators, employees of private companies, the disclosure of which would affect their privacy.

58. However, as rightly pointed out by the complainant, it is not sufficient to state that the exception concerning the protection of privacy applies because the document contains personal data. In its judgment in the Bavarian Lager case, the Court of Justice ruled that, when a request is made for access to documents including personal data, Regulation 45/2001[24] becomes fully applicable. This means that under Article 8(b) of Regulation 45/2001, the applicant for access should establish the necessity of having the data transferred and the institution should weigh up the various interests concerned and consider whether there is any reason to assume that the data subject's legitimate interests might be prejudiced by the disclosure.[25]

59. However, since in the present case the complainant did not provide any express and legitimate justification or any convincing argument showing the necessity of having those personal data transferred, OLAF could not undertake such a weighing up of interests. OLAF thus had to treat the personal data in such a way that the data subject to which they refer would no longer be identifiable. Therefore, the deletion of those parts in the relevant documents is justified, given that the test of necessity within the meaning of Article 8 of Regulation 45/2001 has not been met.

60. As regards OLAF's fourth reason, the Ombudsman refers again to the well-established case-law that documents containing confidential information concerning companies and their commercial activities constitute information covered by the commercial interests exception[26].

61. OLAF explained that the parts blacked out of documents 1 and 2 contain names and commercially sensitive information (like contracts) on private entities, the disclosure of which would harm their reputation or other legitimate business interests.

62. The Ombudsman also considers this explanation by OLAF  convincing. Indeed, OLAF referred to a specific consideration, namely, the possible harm which might be done to the reputation or the legitimate business interests of the companies involved. In the context of investigations concerning financial irregularities, this consideration appears, in principle, to be valid.

63. In addition, the Ombudsman’s inspection of the documents showed that the blacked-out parts, which OLAF refused to disclose relying on the above exception, relate exclusively to the protected commercial interests described above of private entities involved in OLAF's investigation. Moreover, the complainant did not demonstrate any overriding public interest in disclosure.

64. In light of the foregoing considerations, the Ombudsman does not agree with OLAF's justification that the names of its investigators had to be deleted in order to protect the Commission's decision-making process (exception set out in Article 4(3), first subparagraph) and OLAF's future investigations (exception set out in Article 4(2), third indent)  However, he agrees that these names could be deleted on the basis of the exception on the protection of personal data of individuals, since the complainant did not, as required by the judgment in Bavarian Lager, provide reasons justifying its access to that personal data which could be balanced against the prejudice to the data subjects if their personal data were disclosed.

65. Moreover, the Ombudsman agrees that OLAF could have relied upon (i) the exception set out in Article 4(2), third indent, as regards the names of its witnesses and complainants in the context of its future investigations; and (ii) the exception set out in Article 4(2), first indent  on the protection of commercial interests, as regards the names of companies and other information on such businesses. Since it is enough that one exception is properly applied to refuse access to the requested documents, the Ombudsman does not consider that further inquiries into the complainant's allegation and its claim are justified.

The Ombudsman's assessment regarding document 3

66. The Ombudsman notes that the Commission seems to have disclosed to the complainant document 3 on 15 September 2011, that is, in the course of the Ombudsman's inquiry. Although the complainant did not submit a copy of the document which the Commission disclosed to him, the description provided by the complainant in its observations of the document entitled "PV d’audition de Monsieur X [complainant's statutory auditor] of 17 June 2008",  indicates that this document is the one identified by OLAF in its reply to the complainant's confirmatory application as the document entitled "The internal OLAF case document dated 3 July 2008" and recorded in the Ombudsman's inspection report as "Acte du contrôle et vérifications sur place, registered under No  I/006997 on 3 July 2008".

67. In light of foregoing, the Ombudsman considers that the complainant's request to have access to the above-mentioned document was satisfied.

B. Conclusions

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

No further inquiries are justified.

The complainant and OLAF will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 12 November 2012

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[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 L145, p. 43.

[2] Article 3(2) of the Ombudsman's Statute reads as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned."

[3] The documents inspected were the following:/p>

1. OLAF Final Report of investigation OF/2006/0409 dated 3 October 2008.

2. Acte du contrôle et vérifications sur place, registered under No I/006997 on 3 July 2008.

3. Acte du contrôle et vérifications sur place, registered under No I/006998 on 3 July 2008.

4. Record of the administrative control, registered under No I/04026 on 4 May 2007.

5. Record of the administrative control, registered under No I/04027 on 4 May 2007.

6. Mission Report, registered under No I/04218 on 10 May 2007.

[4] Pursuant to Article 8(2) of Regulation (EC) No 1073/99 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ 1999  L 136, p. 1.

[5] In this respect, OLAF referred to Case T-48/05, Franchet and Byk v Commission [2008] ECR II-01585, paragraphs 255-258.

[6] The relevant part of this provision provides as follows: "2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

[...]

- the purpose of inspections, investigations and audits; […]".

[7] The relevant part of this provision provides as follows: "1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

[...]

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."

[8] The relevant part of this provision reads as follows: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure."

[9] The relevant part of this provision reads as follows: "2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

- commercial interests of a natural or legal person, including intellectual property,[…]".

[10] In his further letter dated 30 November 2011, the Ombudsman requested OLAF to grant the complainant partial access to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007". In this respect, during the inspection of documents dated 27 June 2011, the Ombudsman's services were able to compare the content of the document entitled "Mission report, registered under N. I/04218 on 10 May 2007" with the content of documents which had already been disclosed to the complainant (in particular, with OLAF's Final Report of investigation). The above comparison,did not make it possible to understand OLAF's refusal to grant partial access to the document entitled "Mission report, registered under N. I/04218 on 10 May 2007".

[11] The complainant sent a copy of its observations directly to OLAF.

[12] During the inspection, OLAF confirmed that this document corresponds to the document identified in OLAF's reply to the complainant's confirmatory application as "The internal OLAF case document dated 3 July 2008".

[13] Case C-28/08 P Commission v Bavarian Lager [2010], ECR I-06055, paragraphs 123 and 117-119.

[14] In this respect, the complainant requested access to: i) the complaint lodged against the complainant on 1 June 2006 and all additional information provided to OLAF on 17 June 2006 and in September 2006; ii) all the hearing reports made by OLAF in its inquiry, namely in September 2006 and April 2007; iii) documents 2-5 listed in the Ombudsman's inspection report; and iv) all documents held by OLAF in relation to the two contracts.

[15] See footnote 3.

[16] The Ombudsman’s inspection of documents clarified that the documents listed in the inspection report from 3 to 5 were in fact the same as those annexed by the complainant to its complaint to the Ombudsman. Moreover, OLAF representatives confirmed that the documents in question were provided to the complainant in the course of OLAF's investigation, in accordance with OLAF's Handbook – Procédures opérationnelles and not on the basis of Regulation 1049/2001. Therefore, they remained confidential vis-à-vis the public.

[17] The relevant part of this provision reads as follows: "2. The institutions shall refuse access to a document where disclosure would undermine the protection of: [...]

 - the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure".

[18] Article 4(3), first subparagraph, of Regulation 1049/2001.

[19] The relevant part of this provision reads as follows: "1. The institutions shall refuse access to a document where disclosure would undermine the protection of:[...]

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."

[20] The relevant part of this provision reads as follows: "2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

- commercial interests of a natural or legal person, including intellectual property".

[21] Case C-506/08 P Sweden v MyTravel and Commission, judgment of 21 July 2011, not yet published in the ECR.

[22] The Ombudsman 's decisions on complaints 2073/2010/AN and 1735/2010/MHZ available on the Ombudsman's website, respectively paragraphs 76-80 and 32.

[23] Opinion of Advocate General Kokott, paragraph 50.

[24] See Case C-28/08 P Commission v Bavarian Lager [2010], ECR I-06055.

[25] EDPS background paper of 24 March 2011, entitled "Public access to documents containing personal data after the Bavarian Lager ruling" ; Case C-28/08 P Commission v Bavarian Lager, paragraph 78.

[26] Joined Cases T-355/04 and T-446/04 Co-Frutta v Commission [2010], ECR II-1, paragraph 128.