DearMr G.,

On 27 June 2000, you made a complaint to the European Ombudsman concerning requests which you made for access to information and documents.

On 21 July 2000, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 23 October 2000. I forwarded it to you with an invitation to make observations. Due to difficulties with the post, it became necessary to fax you the Commission's comments, which I did on 18 December 2000. You submitted your observations on 3 January 2001.

I also received a letter from you on 22 September 2000 (dated 21 September 2000).

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant, European correspondent of the Sunday Times, complained against the Commission in relation to requests which he made for access to information and documents.

By letter dated 22 February 2000, the complainant addressed to Commissioner Patten a request for information concerning old or dormant financial commitments relating to the Community aid budget. He asked, amongst others, if it would be possible to provide him with a list of ca. 15 of the oldest existing projects still outstanding. Having received no reply, he repeated the request on 16 March 2000. This letter again went unanswered. On 18 April 2000, he made a request for documents under Commission Decision 94/90. On 22 May 2000, Commissioner Patten's cabinet refused the request for documents, giving reasons. The complainant made a confirmatory application to the Secretary General on 25 May 2000 contesting each of the reasons given for refusing access.

On the basis of the above facts, the complainant alleged:

(i) failure to reply within a reasonable time to his requests for access to information dated 22 February 2000 and 16 March 2000;

(ii) that the refusal of his request for access to documents, made on 18 April 2000 is unlawful, for the reasons stated in his confirmatory application dated 25 May 2000;

(ii) that the Secretary General failed to reply to his confirmatory application.

The complainant claimed that the information he requested should be released to him and that clearer guidelines for the release of information should be established for the future.

In a letter of 21 September 2000, the complainant informed the Ombudsman that the Commission had supplied him with the information requested, by letter of 17 July 2000. He maintained his allegation that the Commission had been unduly slow in responding to his requests for information and documents, and repeated his claim that clearer guidelines should be established for the release of information.

THE INQUIRY

The Commission's opinion

The Commission's opinion contains, in summary, the following points and information.

On 18 April 2000, Mr G. wrote a letter to the Commission, asking under the Code of Conduct on public access to Commission documents, to see a list of RAL projects financed under the EU's external relations budget, and any supporting documents explaining the details of these projects and providing an analysis of the problem.

A negative reply was sent to Mr G. on 22 May 2000 and the refusal was justified on the basis of exceptions expressly foreseen by the above-mentioned Code of Conduct: the risk that disclosure of these documents could prejudice the public interest and in particular could complicate international relations and endanger the control and inspection of tasks of the Commission, the protection of the Commission's financial interests, and industrial and commercial confidentiality.

Mr G. contested this argument, and sent a confirmatory application to the Secretary-General of the Commission on 25 May 2000.

As explained in the letter sent to Mr G. on 17 July 2000, the department responsible needed some time to get further into the analysis of the computer records, and was then able to get a clearer picture of the underlying projects.

On this basis, it seemed to the Commission that its earlier fears that disclosure of these documents could prejudice some interests was no longer justified and Mr G. was given access to all documents requested.

The complainant's observations

The complainant submitted the following points in his observations.

The Commission's opinion only refers to the request for documents, made under the Code of Conduct on 18 April 2000. It should be noted however that Mr Patten had been requested to provide the same information in two previous letters dated respectively 22 February 2000 and 16 March 2000. The Commission has a duty to respond to reasonable requests for information in good time, regardless of whether they were made under the Code. And, having been given ample warning, the Commission should have been well prepared to deal rapidly with a request under the Code.

The reference to the need for computer analysis for a "clearer picture of the underlying projects" is rather disingenuous. The Commission was already in possession of lists of these outstanding projects. Such lists of publicly committed aid contracts concerning public money are de jure public information, regardless of the contents or analysis of the case dossiers.

The complainant then stated that he did not suggest that the Commission had acted in bad faith. He would however be grateful if the Ombudsman would set clear guidelines so that public information can in the future be easily obtained without a delay of over five months.

THE DECISION

1 Failure to reply to requests for information

1.1 The complainant has alleged that the Commission failed to reply to his requests for access to information dated 22 February 2000 and 16 March 2000. The Commission's opinion does not address this allegation.

1.2 The administration has a duty to show reasonable goodwill and co-operability in handling information-requests(1), i.e. those requests where no reference is made to specific documents and which are therefore not to be dealt with as requests under the Commission's rules on public access to documents. It appears that the Commission has ignored this duty in the present case. However, subsequent to the lodging of the present complaint the Commission has adopted general binding rules concerning its correspondence with citizens(2). Given that these rules should assist to prevent future failures to reply to requests for information, and given that the complainant eventually received the information requested, the Ombudsman refrains from pursuing this matter further.

2 Unlawful refusal of the request for access to documents

2.1 The refusal to provide the complainant with the documents requested was eventually corrected by the Commission, and the complainant does not appear to wish to pursue this matter further. Maladministration has therefore not been established in regard to the second allegation.

3 Failure to reply to the confirmatory application

3.1 The complainant has alleged that the Commission's Secretary General failed to reply to his confirmatory application of 25 May 2000. Subsequent to his lodging of a complaint with the Ombudsman, the Commission sent him a positive reply on 17 July 2000, i.e. more than seven weeks after he had made his confirmatory application. The Commission has refrained from addressing this matter in its opinion.

3.2 The Commission's rules on public access(3), as well as its public guide on those rules(4), suggest that the decision on confirmatory applications shall be made within one month. Once adopted, the decision shall, according to principles of good administration, be sent to the applicant within a reasonable time. If the Commission knows that its decision cannot be adopted within one month, it should normally provide the applicant with a holding reply. The relevance of using holding replies has recently been recognised by the Commission as a general rule of correspondence, in the Commission's Code of Good Administrative Behaviour (adopted subsequent to the lodging of the complaint in the present case)(5). Against this background, and given that the complainant has received the documents requested, the Ombudsman refrains from pursuing this matter further.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to be no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) See the European Ombudsman's Decision on complaint 104/1.9.95/DS/B/PD against the European Commission; Annual Report for 1996, p 30; and Decision on complaint 395/99/PB against the European Commission, published so far on the Ombudsman's Internet homepage on : http://www.ombudsman.europa.eu/decision/en/990395.htm.

(2) Code of Good Adminstrative Behaviour for Staff of the European Commission in their Relations with the Public, Internet reference: http://www.europa.eu/comm/secretariat_general/code/index_en.htm, see Article 4.

(3) Code of Conduct concerning public access to Commission and Council documents, 1993 OJ L 340/41, adopted by Commission Decision 94/90/ECSC, 1994 OJ L 046/58.

(4) http://ec.europa.eu/secretariat_general/sgc/citguide/en/citgu21.htm (" If you want the Commission to review its decision, then you should send a written request to the Secretary-General of the Commission ... . The Commission then has a month within which to change or confirm its decision. If the refusal is confirmed, you will be given details of how to pursue the appeal further.")

(5) Code of Good Adminstrative Behaviour for Staff of the European Commission in their Relations with the Public, Internet reference: http://www.europa.eu/comm/secretariat_general/code/index_en.htm, see Article 4.