Background to the complaint

1. The European Union Agency for Asylum (EUAA) is an agency of the European Union mandated with supporting Member States in applying the EU rules governing asylum, international protection and reception conditions. The EUAA supports Member States in the field of international protection by providing practical, legal, advisory and operational assistance.

2. The complainant signed a contract with the EUAA for the provision of legal expertise. Under the contract, he was tasked with supporting the national authorities in an EU Member State with their asylum procedures. In 2023, the EUAA decided not to renew his contract. The complainant challenged the EUAA’s decision and asked to see any assessment report about his performance under the contract.

3. The EUAA handled the complainant’s request in line with the EU legislation on public access to documents.[1] It identified four documents, specifically four e-mail exchanges containing feedback in relation to the complainant’s work as a remunerated external expert. The EUAA granted partial access to the four e-mails, with redactions of personal data. It explained that it could not disclose the personal data in question in order to protect the privacy and integrity of the individual.[2] The EUAA said that it had redacted the names of individuals, but also other personal data that could potentially identify certain individuals in view of the limited number of persons concerned, in particular the dates of the e-mails in question.

4. The complainant then asked the EUAA to review its decision to refuse access (by making what is known as a 'confirmatory application'). While he understood that some personal data had to be redacted to protect the privacy of other persons, he insisted that he wanted access to the names of the authors of each e-mail and to the dates they were sent. In September 2023, the EUAA confirmed its decision.

5. Dissatisfied with how the EUAA had handled his request for public access to documents, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the EUAA’s refusal to give full public access to the four documents identified in the complaint.

7. In the course of the inquiry, the Ombudsman inspected the unredacted copies of the documents at issue. The Ombudsman also received additional views from the EUAA on the complaint.

Arguments presented to the Ombudsman

8. The complainant said that he needed to see the names of the authors of each e-mail in order to verify that the procedure had been fair. He presumed that the e-mails had been sent by a specific EUAA staff member with whom he had had regular exchanges. In this sense, he knew who that person was. He thus failed to understand how that person’s right to privacy could be breached, since they had accepted, in principle, that their name would be known to the experts being assessed.

9. He also said that the dates of the e-mails should not have been redacted. In his view, “dates” are not personal data falling within the definition set out in the legislation applicable to EU institutions regarding the protection of personal data.[3] He argued that he has a legitimate interest in having access to the dates of the e-mails in order to verify that they were sent in the same timeframe as the duration of his contract.

10. The EUAA argued that the e-mails contain a variety of personal data, such as first and last names, job titles and e-mail addresses, which can make the individuals concerned directly identifiable. Disclosure of the personal data would undermine the protection of privacy and the integrity of these individuals, in accordance with the EU legislation regarding the protection of personal data.

11. The EUAA explained that the data protection legislation sets out that personal data may only be transmitted to a recipient if he or she establishes that it is necessary to have the data transmitted for a specific purpose in the public interest. The EUAA argued that the complainant had not put forward any convincing argument to establish such a necessity. In addition, the EUAA said, the complainant had not demonstrated why the information already disclosed, that is, the full content of the assessment of his work, was not sufficient. The EUAA highlighted that the complainant himself had already acknowledged that he knew who the author was, which - in the EUAA’s view - implies that there is no real need for further disclosure.

12. In relation to the dates of the e-mails, the EUAA argued that their disclosure could make it possible to link the content of the e-mail to its author or the person from whom the information contained therein originates, as well as information relating to third parties. In its additional views on the complaint, the EUAA provided further clarifications on how disclosing the dates of the e-mails in question could allow the public to infer who the author of the e-mail was. The EUAA asked that these clarifications remain confidential.

The Ombudsman's assessment

13. The review by the Ombudsman inquiry team confirmed that the four documents at issue contain personal data, and that the redactions applied by the EUAA concern that personal data.

14. The concept of ‘personal data’ under the EU legislation on data protection is very broad. Personal data comprises “any information relating to an identified or identifiable natural person (...); an identifiable natural person is one who can be identified, directly or indirectly”.[4]

15. The EUAA correctly argued that, in order to transmit the personal data to the complainant (in other words, disclose the documents in full without the personal data redactions), it must first check whether the complainant has demonstrated a need to have this personal data transferred to him for a specific purpose in the public interest.

16. The complainant said that he needed full access to the documents in order to verify that the EUAA had followed the correct procedure when it decided not to renew his contract, and potentially to take further legal action. In accordance with EU case-law, this is, however, a purely private interest.[5]

17. The Ombudsman notes that ‘dates’ are, in principle, not personal data, unless they make an individual identifiable, directly or indirectly. In the course of the inquiry, the Ombudsman inquiry team asked the EUAA to clarify how disclosing the dates of the e-mails in question could allow the public to infer the author of the e-mail. In reply, the EUAA provided confidential explanations about the specific situation at the time the e-mails were sent. In view of these additional explanations, the Ombudsman finds the EUAA’s position reasonable.

18. The Ombudsman therefore concludes that the EUAA’s refusal to grant full public access to the four documents at issue was reasonable.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[6]:

There was no maladministration by the European Union Agency for Asylum in this case.

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

 

Rosita Hickey
Director of Inquiries

Strasbourg, 03/07/2024

 

[1] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049

[2] This exception is laid down in Article 4(1)(b) of Regulation 1049/2001.

[3] Regulation (EU) 2018/1725 on the protection of natural person with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725

[4] Article 3(1) of Regulation (EU) 2018/1725.

[5] Judgment of the General Court of 9 October 2018 in case T-634/17, Anikó Pint v European Commission, paragraph 59, available at: https://curia.europa.eu/juris/liste.jsf?num=T-634/17&language=en

[6] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions: https://www.ombudsman.europa.eu/en/legal-basis/implementing-provisions/en