Background to the complaint

1. The right of public access to EU documents is a fundamental right. The EU legislation giving effect to this right is Regulation 1049/2001.[1]

2. The complainant, a researcher, contested the practice of the European Boarder and Coast Guard Agency (Frontex) to refuse providing requesters for public access[2] with lists of documents it identifies as falling within the scope of their requests. The complainant referred to existing EU case-law, specifically the Campbell judgment,[3] arguing that EU institutions have a duty to provide such lists. By refusing to do so, Frontex undermines the right of requesters to submit effective and informed requests for review.

3. The Ombudsman opened an inquiry into Frontex’s practice of refusing to provide lists of documents it identifies as falling within the scope of public access to documents requests. She asked Frontex to provide a reply to the complaint.[4]

4. In its reply,[5] Frontex explained that, when replying to public access requests, it always indicates the number of identified documents. It also gives detailed reasons on how disclosure of the identified documents would undermine the interests protected under one or several of the exceptions to public access provided for in Article 4 of Regulation 1049/2001. Frontex considered that there was no general obligation to provide lists of identified documents, neither under Regulation 1049/2001 nor in view of the Campbell judgment. In its view, the Campbell judgment established that institutions are obliged to provide such lists only when they apply a general presumption of confidentiality. Frontex argued that providing lists of documents would constitute the creation of a new document, which is not required under Regulation 1049/2001.

The Ombudsman's recommendation

5. The Ombudsman disagreed with Frontex’s interpretation of the Campbell judgment. She did not consider that the duty to provide requesters with a list of identified documents is limited to situations in which an institution applies a general presumption of confidentiality, that is, in situations in which EU institutions are not required to conduct an individual assessment of each identified document when refusing access.[6]

6. In any case, the Ombudsman considered that providing a list of identified documents is a matter of good administration. Such lists are crucial to give requesters a basic understanding of the identified documents, to understand the institution’s decision and to formulate a request for review, if necessary. It could also simplify an institution’s processing of requests for review, since requesters could choose to make a confirmatory application only for certain documents. Her view was that documents should, at least, be listed with a title, a date and - when available - a record keeping reference number.

7. The Ombudsman concluded that the systematic refusal by Frontex to provide lists of documents constitutes maladministration. She therefore made the following recommendation to Frontex:[7]

Frontex should provide lists of documents it identifies as falling within the scope of requests for public access to documents, unless the very disclosure of a list undermines the interest(s) to be protected.

8. In reply,[8] Frontex reiterated its position, namely that its current practice is in line with Regulation 1049/2001 and existing case-law. Frontex maintained its view that neither the Campbell judgment, nor any other relevant case-law, imposes “a general obligation to provide a list of identified documents in all requests for [public access to documents]”.

9. Frontex welcomed the “distinction” made by the Ombudsman in her recommendation that the provision of lists is also a matter of good administration. It further acknowledged that, in view of the obligation of EU institutions to state reasons for their decisions,[9] “the provision of a list may in some instances fulfil a function in this regard”.

10. Frontex concluded that it will “consider” providing the name of the documents identified “where deemed necessary” and “on a case-by-case basis”, “in order to further enhance applicants' ability to make an effective and informed appeal".

11. The complainant was disappointed with Frontex’s reply. They maintained their view that there was a general obligation to provide lists of documents when replying to public access requests. The provision of a list of documents was (1) integral to a requester’s ability to ascertain (and thus challenge) Frontex’s interpretation of the scope of a request and its reasoning for non-disclosure of identified documents; (2) a necessary procedural guarantee that Frontex has correctly identified and examined each individual document that falls within the request’s scope; (3) a necessary precondition for the EU Courts to exercise judicial review.[10]

12. The complainant argued that Frontex’s willingness to reconsider the provision of lists, as a matter of good administration, was not satisfactory. There was no actual commitment to amend its current practice. The complainant noted that Frontex continued to refuse to provide requesters with lists of documents, even after the Ombudsman’s recommendation. They did not trust that Frontex will actually comply with the recommendation and argued that the Ombudsman should maintain her finding of maladministration.

The Ombudsman's assessment after the recommendation

13. The Ombudsman welcomes Frontex’s readiness to reconsider its practice of refusing, as a matter of principle, to provide lists of documents it identifies as falling within the scope of access requests. This is an important first step. However, Frontex’s response to the Ombudsman’s recommendation raises several concerns.

14. Frontex insists that there is no legal obligation under the framework of Regulation 1049/2001 or existing case-law that would require an EU institution to provide requesters with lists of documents.

15. The Ombudsman disagrees with Frontex’s interpretation of the relevant case-law. Indeed, as stated in her recommendation, the Court held in the Campbell judgment that the application of a general presumption does not exempt an EU institution from indicating to the requester which documents it identified and from providing the requester with a list of those documents.[11] This necessarily implies that EU institutions should generally identify documents falling within the scope of the request and provide requesters with a list thereof.

16. It is hard to understand why Frontex goes to great lengths to develop legal arguments to challenge the use of a straightforward practice. After all, the purpose of Regulation 1049/2001 is to give the “fullest possible effect” to the fundamental right of access to EU documents, not the other way around, and to promote good administrative practice on access to documents.[12]  

17. It is the Ombudsman’s view that the provision of lists of identified documents is an essential part of replying to access to documents requests, as illustrated by recent complaints she dealt with against Frontex.[13] In the absence of lists of documents, it is difficult for requesters to understand the reasons for refusing access, as they cannot know which documents have, concretely, been identified by Frontex, and which exception was applied to which (part) of these documents. Providing lists not only facilitates a requesters’ understanding of the institution’s decision, it also enables them to formulate reasoned requests for review, if necessary.

18. As mentioned in the Ombudsman’s recommendation, many EU institutions, bodies, offices and agencies are providing lists of identified documents in their replies. In the Ombudsman’s experience, the provision of lists of identified documents is already a well-established practice.

19. Thus, the Ombudsman welcomes Frontex’s willingness to depart from its practice of systemically refusing the provision of lists. She remains dissatisfied, however, that Frontex will provide lists only “where deemed necessary” and “on a case-by-case basis”. The Ombudsman will therefore monitor Frontex’s new practice, based on future complaints and may need to revisit the matter. At this stage, no further inquiries are justified.

Conclusion

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

The Ombudsman welcomes Frontex’s willingness to depart from its practice of systemically refusing the provision of lists. She remains dissatisfied, however, that Frontex will provide lists only “where deemed necessary” and “on a case-by-case basis”. The Ombudsman will therefore monitor Frontex’s new practice, based on future complaints, and may need to revisit the matter. At this stage, no further inquiries are justified.

The complainant and Frontex will be informed of this decision.

Emily O'Reilly
European Ombudsman

Strasbourg, 16/10/2024

 

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

[2] Regulation 1049/2001 applies to Frontex by virtue of Article 114 (1) of the Frontex Regulation, and is implemented through the Frontex Management Board Decision No 25/2016 of 21 September 2016. (Frontex Regulation: Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R1896; Decision of the Frontex Management Board: https://prd.frontex.europa.eu/wp-content/uploads/mb_decision_25_2016_on_adopting_practical_arrangements_regarding_pad.pdf).

[3] The complainant referred to the judgment of the General Court of 28 May 2020, Campbell v European Commission, T-701/18: https://curia.europa.eu/juris/document/document.jsf?text=&docid=226879&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=558889.

[4] The letter of the European Ombudsman to Frontex is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/172709.

[5] The reply of Frontex to the complaint is available at: https://www.ombudsman.europa.eu/doc/correspondence/181530.

[6] A general presumption of confidentiality is a presumption that the Court of Justice has established for certain areas of administration. It means that EU institutions can decide not to disclose documents without examining the individual documents.

[7] The full text of the Ombudsman’s recommendation is available at: https://www.ombudsman.europa.eu/en/recommendation/en/182124.

[8] The opinion of Frontex on the Ombudsman’s recommendation is available at: https://www.ombudsman.europa.eu/doc/correspondence/193072.

[9] Under Article 296 TFEU: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E296. 

[10] The complainant referred to para 66 of the Campbell judgment.

[11] See in particular para 44 of the Campbell judgment: “More generally, although the application of a general presumption of confidentiality permits the institution to dispense with carrying out an individual examination of each document, it cannot, however, exempt it from indicating to the applicant which documents it identified as being part of a file covered by that presumption and from providing him or her with the list of those documents.”

[12] Recital 4 and Article 1 of Regulation 1049/2001.

[13] See for example recent cases 344/2023/PVV and 219/2024/TM.