Background to the complaint

1. This complaint concerns a gold mining project at the Amulsar Mountain in the south of Armenia. Since 2018, there have been protests against the construction of the mine and the commencement of the mining operation, mainly due to concerns about possible environmental implications of the project.

2. In October 2019, the Delegation of the EU to Armenia drew up a note on the project, including its environmental, economic and political aspects.

3. In January 2020, the complainant made a request for public access[1] to documents concerning the Amulsar gold mining project, which the EEAS had drawn up or received in 2018 and 2019.

4. The EEAS identified one document, the above-mentioned note and granted the complainant partial access to it. Regarding the redactions it made, the EEAS relied on the need to protect international relations, the need to protect its decision-making process and the need to protect personal data.[2]

5. In March 2020, the complainant asked the EEAS to review its decision to deny full access to the note (he made a so-called ‘confirmatory application’). He was also concerned that the EEAS had failed to identify all the relevant documents.

6. The EEAS replied giving the complainant increased partial access to the note. It also informed the complainant that both the EEAS and the EU Delegation to Armenia had searched their archives again, but had not identified any additional documents that would fall within the scope of his request for public access.

7. Dissatisfied with this outcome, the complainant turned to the Ombudsman in May 2020.

The inquiry

8. The Ombudsman opened an inquiry into the following aspects of the complaint:

1) The EEAS’ refusal of public access to parts of the note on the Amulsar gold mining project, and

2) the EEAS’ alleged failure to identify all documents relevant to the complainant’s request for public access.

9. In the course of the inquiry, the Ombudsman’s inquiry team held a meeting with representatives of the EEAS to obtain clarifications, and inspected the requested note. The inquiry team also inspected a meeting report, which the complainant considered might contain information on the gold mining project in question. Subsequently, the Ombudsman provided the complainant with a report on this meeting, but did not receive any comments from him.

Arguments presented to the Ombudsman

10. The complainant was concerned that the EEAS had not fully considered the environmental implications of the gold mining project. He argued that, while the release of the redacted parts of the note might negatively affect international relations, this was less important than the public’s right to access information about the environment.

11. As regards the scope of his access request, the complainant referred to a meeting with representatives of the Armenian government. He considered that the project must have been discussed at that meeting. The EEAS, he said, should therefore have identified the report on that meeting and other related documents when assessing his request for public access.

12. The EEAS argued that the full disclosure of the note it had identified would seriously undermine its relations with several stakeholders and partners in Armenia. It emphasised that the note had been drawn up exclusively for internal use, that is, to inform EU representatives and to enable them to shape the EU’s approach towards its international partners. It also said that a unilateral release of politically sensitive information could be wrongly perceived by Armenia and could influence public opinion in Armenia. Finally, the release of the full note would reveal sensitive information that could be used to jeopardise the success of possible future EU diplomatic activities.

The Ombudsman's assessment

13. The Ombudsman notes that, concerning the protection of the public interest as regards international relations, the EU Court has recognised that the EU institutions enjoy wide discretion when determining whether this interest could be undermined by the disclosure of certain information.[3]

14. In this case, the EEAS considered that the release of certain information contained in the note at issue would seriously undermine international relations. The EEAS therefore refused to give public access to the relevant parts of the note and provided the complainant with explanations as to why it had come to this conclusion.

15. In the course of the inquiry, the Ombudsman examined each redaction. The majority of the redactions were self-evidently sensitive. As regards certain other redactions, EEAS provided the Ombudsman with additional confidential explanations as regards why each of these redactions would, if released, undermine international relations. The Ombudsman thus considers that the release of the redacted text would undermine international relations.

16. The Ombudsman notes that the EEAS also redacted the list of persons and entities within the EU institutions who received the note. This list consists mainly of personal data, that is, names of EU staff. This list also includes, however, the names of EU delegations and EU institutions and services. Regarding this information, the Ombudsman considers that some redactions of EU institutions and services may have been excessive, as their disclosure would not reasonably and foreseeably undermine international relations. As this information, does not appear to be of interest to the complainant, no action by the EEAS is needed on this point. The Ombudsman, however, calls on the EEAS to consider carefully whether there is a need to redact information of that kind in future.

17. The complainant was concerned that the redacted parts of the note contained environmental information for which an increased level of transparency is required. Having inspected the note, the Ombudsman can verify that the EEAS has disclosed all environmental information contained in it.

18. The Ombudsman notes that, under EU law on public access to documents, the need to protect the public interest as regards international relations cannot be overridden by another public interest.

19. The Ombudsman also notes that the complainant did not challenge the redaction of personal data.

20. The Ombudsman therefore concludes that the EEAS was justified in refusing to give public access to the redacted parts of the note (with the exception of some minor redactions at the end of the note as described in paragraph 16 above).

21. As regards the complainant’s concern that the EEAS might have failed to identify documents related to a certain meeting with representatives of the Armenian government, the Ombudsman has inspected the report on that meeting. Following this inspection, the Ombudsman can verify that it does not mention the Amulsar gold mining project. She therefore agrees that the report does not fall within the scope of the complainant’s request for public access to documents.

Conclusion

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

There was no maladministration by the European External Action Service in dealing with the complainant’s request for public access to documents.

The complainant and the EEAS will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 16/07/2020

 

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[2] In accordance with Article 4 paragraphs (1)(a) third indent, (1)(b) and (3) of Regulation 1049/2001.

[3] See, for example, judgment of the General Court of 11 July 2018, ClientEarth v Commission, T-644/16, paragraphs 23 -25: http://curia.europa.eu/juris/document/document.jsf?text=&docid=203913&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=46943.