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The complainant sought access to detailed information on two of the European Border and Coast Guard Agency’s (Frontex) joint operations that it carried out in Greece and in Spain. In particular, the complainant asked for the number of Greek and Spanish co-financed assets and for a detailed breakdown per month and per profile of the assets and officers deployed.

Frontex refused to provide the requested detailed information arguing that it was sensitive operational information and that its disclosure could jeopardise Frontex’s future operational activities.

The complainant considered that this was a generic justification that Frontex often uses to refuse access to information and to documents. She further argued that the Commission had already disclosed some of the information requested.

The Ombudsman asked Frontex to set out, in line with the EU legislation on access to documents, why it considered that it could not disclose the requested data. The Ombudsman inquiry team also met with representatives of Frontex to receive more detailed explanations on how disclosure of the requested information could hamper Frontex’s ongoing and future operations.

Frontex argued that such a detailed breakdown of the assets and human resources deployed would allow criminal networks to draw a comprehensive picture on the strengths and/or weaknesses of Frontex’s deployments. As operational areas change only marginally, this type of information would enable such criminal networks to draw conclusions on Frontex’s operational focus in current and future operations.

The Ombudsman found that Frontex’s explanations were reasonable and supported by EU case-law. She thus closed the inquiry finding no maladministration.

The Ombudsman opened this inquiry to look into whether there are systemic delays in how the European Commission handles requests for public access to documents.

The Ombudsman’s inquiry found that systemic and significant delays occur in particular when it comes to dealing with requests to review initial decisions (‘confirmatory applications’). While decisions on initial requests were delayed in one case out of six during the year in question, 85% of decisions on confirmatory applications were delayed, with over 60% taking more than 60 working days (the maximum time-limit is 30 working days). One example included a request by a journalist covering the procurement of medical masks at the outset of the COVID-19 pandemic, where it took the Commission ten months to take a final decision and it took nearly two years in total for the requester to receive the documents.

The Ombudsman has consistently taken the view that ‘access delayed is access denied’. Documents and information sought by requesters are often time sensitive and can lose relevance to the requester if delays occur. There may also be a dissuasive effect in that requesters opt not to exercise their fundamental right to access documents in the knowledge it takes too much time. Thus, requests for public access must be handled promptly and, at the very least, within the applicable time limits. Failure to comply with the time limits laid down by the legislator cannot be good administrative practice.

The Ombudsman acknowledges the increasing number and complexity of requests handled by the Commission. She is aware that the Commission dealt with over 8000 initial requests during the year in question, with requesters pursuing fewer than 10% of negative decisions. She is also aware that the Commission recently introduced the new EASE portal to improve how it deals with public access requests. That said, her Office continues to deal with complaints alleging serious delays. The systemic and significant delays brought to light in this inquiry amount to maladministration. 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. If the Commission’s processing of the requests takes so much time, there is a risk that this is perceived as deliberate, so as to avoid timely public scrutiny.

Therefore, the Ombudsman makes a recommendation to the Commission to correct the current situation, as a matter of priority. She also makes seven suggestions to address how the Commission handles access requests. She is aware that these suggestions are unlikely to be sufficient to tackle 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 legislator. 

The complainant, a journalist, asked the European Commission for public access to documents concerning the adoption of EU rules on real driving emissions values. The Commission refused to grant access. In doing so, it invoked an exception under the EU's legislation on public access to documents, arguing that disclosure could undermine legal proceedings, as the matter had previously been subject to court proceedings and could be again in the future.

The Ombudsman inquiry team inspected the documents in question and confirmed that they contain internal legal advice concerning a judgment of the General Court of 13 December 2018. The Ombudsman found that, in view of the specific context of the case, it was reasonable for the Commission to assume that the same subject matter would be challenged in court again.

She therefore considered that the Commission was justified in protecting the confidentiality of four out of five documents at this stage, and concluded that there was no maladministration.

The fifth document is an official Commission decision to appeal to the Court. The Ombudsman’s view is that this document could be made public, in particular because the Commission’s arguments (as presented to the Court) are reflected in the publicly available opinion of the Advocate General. However, since this document was not the main document at issue of the complaint, the Ombudsman does not find it justified to prolong the inquiry into this matter. She trusts that the Commission will look at the document again and reconsider its position.

The case concerned a request for public access to documents held by the European Border and Coast Guard Agency (Frontex) concerning return operations. The complainant specifically asked to receive the requested documents in a machine-readable format. Frontex disclosed the requested documents, but in a different format.

The Ombudsman asked Frontex to explain in more detail its reasons for providing the complainant with a non-machine readable format. In reply, Frontex disclosed the documents in a machine-readable file format.

Since Frontex settled the problem, the Ombudsman closed the inquiry.

The case concerned a request for public access to documents concerning technology developed and military equipment produced as part of an EU-funded project in the defence industry. The European Commission refused access to the two documents it identified, arguing that full disclosure could undermine the public interest as regards public security, defence and military matters, the protection of the privacy and the integrity of the individual and the protection of commercial interests.

The Ombudsman inquiry team inspected the documents in question and found that the Commission’s refusal to disclose them was justified due to their sensitive nature.

The Ombudsman closed the inquiry with the conclusion that the Commission had not acted with maladministration in this case.

The case concerned three requests for public access to documents concerning all EU Pilot procedures and five specific infringement procedures related to procurements in the defence sector. The Commission refused (full) access to the majority of the 153 documents it identified, arguing that full disclosure could undermine the public interest as regards public security, defence and military matters, the financial, monetary or economic policy of Member States, the protection of the privacy and the integrity of the individual and the protection of commercial interests. The Commission also redacted (parts of) some of the documents, arguing that those were outside the scope of the requests.

The Ombudsman inquiry team inspected the documents in question and found that the Commission’s refusal to disclose the relevant parts of the documents was generally justified.

However, the Ombudsman expressed concerns regarding the delay incurred by the Commission in dealing with the requests and, once again, urged the Commission to deal with requests for public access to documents within the applicable deadlines.