Background to the complaint

1. The complaint concerns a request for public access to internal communications relating to a blog post published by the European Commission on the new EU Copyright Directive^[1], which was, following public criticism, removed from the Internet.

2. On 14 February 2019, the Commission published an article on medium.com, entitled ‘The Copyright Directive: how the mob was told to save the dragon and slay the knight’, in which it defended the Directive against criticism.

3. On 16 February, the Commission removed the article from the Internet, acknowledging that “its language and title were not appropriate and we apologise for the fact that it had been seen as offending”.^[2]

4. On 19 February 2019, the complainant asked the Commission for public access to “all communications (including email, drafts, notes and logs/notes of phone calls), by European Commission staff on February 14, 15, 16, 17 and 18, 2019 related to the blog post "The Copyright Directive: how the mob was told to save the dragon and slay the knight", which it posted on medium.com”.

5. The Commission extended the deadline to reply to the request by 15 working days.

6. On 1 April 2019, the Commission granted partial access to an email exchange (dated 8 to 14 February) containing the agreed text of the blog post. It redacted the email addresses of Commission staff, based on the exception in Regulation 1049/2001 concerning the protection of privacy and the integrity of the individual.

7. On the same day, the complainant made a confirmatory application. The complainant questioned whether the Commission had identified all relevant documents falling within the scope of his request.

8. On 5 June, the Commission adopted its confirmatory decision. It granted further partial access to the identified email exchange. It also informed the complainant that, following a “renewed, thorough search for any additional documents relating to the article in question”, the Commission had not kept any document falling within the scope of the complainant’s application. It specified that “[e]arlier versions of the article in question, if any, which might have contained text different from the final version, were either not retained or overwritten. Therefore, earlier versions of the article have not been kept as they were short-lived documents in the meaning of Article 4 of European Commission’s Provisions on Document Management”^[3].

9. Dissatisfied with the Commission’s decision, the complainant turned to the Ombudsman on 29 July 2019.

The inquiry

10. The Ombudsman opened an inquiry into how the European Commission dealt with the request for public access to communications by Commission staff relating to the Commission blog post at issue.

11. In the course of the inquiry, the Ombudsman asked the Commission to clarify its position regarding its search for communications in the period after publication of the blog post, and to explain why it repeatedly extended the deadline to reply to the complainants’ requests. The Ombudsman assessed the Commission’s reply to this request and the comments of the complainant in response to the Commission's reply.

Arguments presented by the parties

12. The Commission explained in its confirmatory decision that Regulation 1049/2001 cannot oblige an institution to give access to a document that is no longer in its possession.^[4]

13. In his complaint to the Ombudsman, the complainant stated that he did not consider that all relevant documents were identified and released. He questioned whether there really were almost no written communications in relation to a hugely controversial blog post in the days leading up to the responsible Commission vice-president voicing his "anger" at the post published by the Commission's own services.

14. The complainant considered that the attitude of the Commission could be construed as wilfully obstructive.

15. The complainant suggested that the correspondence was actively deleted or “mis-registered as short-lived”.

The Ombudsman's assessment

16. In accordance with the presumption of legality attaching to Union acts, where the institution asserts that a particular document to which public access has been sought does not exist, or is not in the possession of the institution, there is a presumption that these statements are true and accurate.^[5] This presumption of legality is rebuttable in cases where a complainant provides relevant and consistent evidence and arguments that the requested document indeed exists and is in the possession of the institution.

17. The Ombudsman’s inquiry team focused on the likely existence of the requested documents. The Commission had specified in its confirmatory decision that “[e]arlier versions of the article in question, if any, ... were either not retained or overwritten. Therefore, earlier versions of the article have not been kept ...”. As the complainant had not requested access to earlier versions of the blog posts, but rather to communications on the day of and in the period after publication of the blog post, the Ombudsman’s inquiry team asked the Commission to clarify its position in this regard.

18. In response, the Commission reiterated that it did not hold any additional relevant documents other than the one that had already been made available to the complainant. It clarified that there was no additional correspondence “dating back from 15 to 18 February 2019”, i.e., in the period after publication of the blog post.

19. The complainant argued that it was unlikely that there were almost no written communications in relation to a hugely controversial blog post. The Ombudsman notes that the complainant did not provide any evidence to support his assertion of the likely existence of the requested documents.

20. In his comments on the Commission’s reply to the Ombudsman’s request, the complainant argued that, if it were the case that communications by European Commission staff were actively deleted or classified as short-lived, this was in contradiction of the Commission’s own Provisions on Document Management.

21. The Ombudsman considers that the fact that the blog post itself led to controversy on Twitter does not imply that there was internal written correspondence by Commission staff. She does not consider the absence of any record or other evidence of the existence or deletion of written communications on this matter to be unreasonable.

22. The Ombudsman thus considers that there is no evidence of maladministration by the Commission.

23. The Ombudsman notes and understands the complainant’s concerns about the time taken by the Commission to respond to his initial request and confirmatory application. However, in the circumstances of this case, she does not consider the time taken to be excessive or to amount to maladministration.

Conclusions

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

There was no maladministration by the European Commission.

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 29/11/2019

 

[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

[2] https://medium.com/@EuropeanCommission/the-copyright-directive-how-the-mob-was-told-to-save-the-dragon-and-slay-the-knight-b35876008f16.

[3] Annex to Commission Decision 2002/47/EC, ECSC, Euratom of 23 January 2002 amending its Rules

of Procedure, Official Journal L 21 of 24.1.2002, p. 23: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32002D0047&from=EN.

[4] Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08, EU:T:2016:242,

paragraph 66.

[5] Case T-468/16, Verein Deutsche Sprache v Commission, ECLI:EU:T:2018:207, paragraph 35.