Strasbourg, 17 December 2007

Dear Mr S.,

On 17 November 2004, you made a complaint to the European Ombudsman concerning the rejection of a confirmatory application for access to documents that you had submitted to OLAF.

On 13 December 2004, I forwarded the complaint to OLAF.

On 26 January 2005, you submitted additional allegations that I decided to include in the present inquiry.

OLAF sent its first opinion on 22 March 2005. I forwarded it to you with an invitation to make observations, which you submitted on 13 April 2005.

On 18 April 2005, OLAF sent its second opinion. I forwarded it to you with an invitation to make observations, which you submitted on 23 May 2005.

On 29 May 2006, I made a proposal for a friendly solution to your case, and informed you accordingly.

On 24 August 2006, I received OLAF's opinion on my friendly solution proposal. Due to an error in the annexes attached to OLAF's opinion, I had to return that opinion and its annexes for correction by OLAF. The corrected reply was submitted by OLAF on 17 November 2006. I forwarded it to you for observations which you sent on 4 December 2006.

Due to special circumstances relating to your present and other complaints that you had submitted, the inquiry was discontinued between 14 May and 6 September 2007.

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

I would like to apologise for the delays that have occurred, on our part, in the handling of your complaint.

THE COMPLAINT

The complaint to the Ombudsman was submitted on 17 November 2004 by a Community official of German nationality.

On 19 May 2004, the complainant made an application for access to OLAF's complete file on its investigation OF/2002/0356 and to all the documents which were not contained in the file but which nevertheless directly concerned that file. File OF/2002/0356 is based on information provided by the complainant to demonstrate fraud or irregularities by other Community officials ("whistleblower" complaint). The complainant made his application for access on the basis of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1) ("Regulation 1049/2001") and on the basis of a general duty of the administration to "assist" its officials (Fürsorgepflicht).

OLAF replied on 11 June 2004, informing the complainant that several of the documents concerned were already in his possession and that as regards other parts of the file, the application for documents was not sufficiently precise. OLAF referred to Article 6(2) of Regulation 1049/2001(2) and suggested that the complainant could make his application more precise by referring to the author, the date or the addressee of the documents.

The complainant replied on 22 June 2004, disputing OLAF's view that his application was not sufficiently precise. He stated, in summary, that since he had asked for access to all the documents of a specified file, there could be no doubt as to what documents he had asked for. As regards the documents copies of which he already possessed, he stated that he still wanted access to these documents as they appeared in the file because the latter version might contain remarks or other hand-written information. The complainant also stated that, even if OLAF's view was correct and his application was not sufficiently precise, the "duty to assist" him to identify the documents had not been complied with (Article 6(2) of Regulation 1049/2001). He stated that OLAF's suggestion that he could refer to the authors, dates and addressees of the documents concerned did not make sense as such detailed information was usually known only to those who were actually in possession of the documents. He suggested that OLAF should provide him with a list of the documents in the file. In a footnote, the complainant referred to 12 specific documents that he had been able to identify on the basis of the documents already in his possession. These included documents such as telephone notes, the decision to open the OLAF investigation concerned, minutes and discussion notes.

OLAF replied on 9 July 2004, confirming its previous reply. It essentially noted that it was up to the complainant to identify the precise documents to which he wanted access. In particular, OLAF did not consider that it was obliged to produce a list of the documents in the file on its investigation OF/2002/0356. In its view, producing such a list, examining all the documents, deciding what documents could be released to the complainant and to striking out all personal data in the documents would imply an excessive administrative burden. According to OLAF, Regulation 1049/2001 did not foresee that it should spend a disproportionate amount of time in providing individuals applying for documents with copies of a large number of documents.

OLAF also stated that the mere fact that the complainant was a Community official did not oblige it to co-operate more closely with him than with any other citizen. OLAF's reply informed the complainant that he was free to make a confirmatory application to its Director General.

The complainant made a confirmatory application to the Director General of OLAF on 11 July 2004, repeating his previous application.

The complainant furthermore maintained that OLAF had breached its "duty to assist" him in his capacity as an official.

Not having received a reply, the complainant sent reminders to OLAF. OLAF informed him on 6 August 2004 that it would deal with his application as quickly as possible. However, the person responsible was on holiday and therefore the deadline for OLAF's reply had to be extended by 15 days. OLAF apologised for this delay.

On 2 September 2004, OLAF replied to the complainant, rejecting his confirmatory application.

On 12 October 2004, the complainant sent OLAF an additional detailed application for access to documents. By letter dated 3 November 2004, OLAF informed the complainant that it had transferred three parts of his application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee, respectively and that they would send him separate replies to the relevant parts of his application. The three parts of the access application in question were (i) the text of a contract relating to the issues that had incited the complainant to make the "whistleblower" complaint that gave rise to OLAF investigation OF/2002/0356; (ii) a note from the Commission's Secretary-General to the Director of OLAF relating to investigation OF/2002/0356; (iii) a report by the OLAF Supervisory Committee concerning OF/2002/0356 and copies of extracts of the minutes of meetings during which the Supervisory Committee discussed investigation OF/2002/0356. By e-mail dated 26 November 2004, the complainant informed OLAF about delays in replies to his access application of 12 October 2004. OLAF replied on 2 December 2004, essentially arguing that it had replied to him within 15 days and had therefore respected the relevant deadlines.

In his complaint to the Ombudsman, the complainant alleged that:

1. In response to his application of 19 May 2004, submitted under Regulation 1049/2001, OLAF had wrongly refused to give him access to the complete file on OF/2002/0356 and to the documents which were not contained in the file but which nevertheless directly concerned that file.
2. OLAF had wrongly delayed its handling of his applications for access to documents.
3. OLAF had wrongly refused to give him access to the file on OF/2002/0356, in accordance with a "duty to assist" owed to officials (Fürsorgepflicht).

Additional allegations

On 26 January 2005, the complainant submitted additional allegations. He alleged (i) that OLAF's reply to his confirmatory application under Regulation 1049/2001 was wrongly drafted in English, even though his confirmatory application had been written in German; and (ii) that OLAF had wrongly refused to give him access to the names that had been struck out in note NT/ls D (2004-AC-4577), a copy of which he had, in the meantime, received. On 8 December 2004, the complainant sent an e-mail entitled "confirmatory application under Regulation 1049/2001", in which he requested access to the names that had been struck out in the above-mentioned document. In its reply of 14 January 2005, OLAF responded to the complainant's confirmatory application as a request for transfer of personal data pursuant to Article 8 of Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(3) ("Regulation 45/2001"). Article 8(b) of that Regulation, which governs the transfer of personal data to recipients other than Community institutions and bodies, provides that personal data shall only be transferred to such recipients if the recipient establishes the necessity of having the data transferred and if there is no reason to assume that the data subject's legitimate interests might be prejudiced. OLAF concluded that the complainant had demonstrated no such necessity and therefore refused him access to the names. In an e-mail of 23 January 2005, the complainant questioned OLAF's decision to base its refusal on Regulation 45/2001 and, furthermore, argued that, even if Regulation 45/2001 were the proper legal basis for OLAF's reply, access to the names that had been struck out should have been granted as a matter of public interest. By letter dated 1 February 2005, OLAF again refused access and confirmed that the complainant was correct in understanding that its letter of 14 January 2005 had not been a reply to a confirmatory application under Regulation 1049/2001. OLAF stated that a request for information initially refused on the basis of Article 4(1)(b) of Regulation 1049/2001(4) necessarily had to be considered as a request for access to personal data under Regulation 45/2001. OLAF stated that the complainant's e-mail of 8 December 2004, referred to above, could not have been considered as a 'confirmatory application' within the meaning of Article 7(2) of Regulation 1049/2001.

On 17 February 2005, the Ombudsman asked OLAF to submit an opinion on the two above-mentioned additional allegations.

THE INQUIRY

OLAF's opinion

OLAF sent its opinion to the Ombudsman shortly before it received the Ombudsman's request of 26 January 2005 for an opinion on the complainant's additional allegations. Its first opinion therefore only addressed the initial allegations.

In its first opinion, OLAF made, in summary, the following remarks.

With regard to the complainant's first allegation, OLAF essentially confirmed its refusal of the complainant's applications, summarised above (under "the complaint").

With regard to the second allegation, that is, that OLAF had wrongly delayed its handling of his application for access to documents, OLAF outlined its handling of the applications as follows.

By letter dated 11 June 2004, OLAF replied to the complainant's initial application for access to documents (dated 19 May 2004) by asking for clarification of exactly what documents he was seeking. The letter stated that the complainant was already in possession of many documents in the file, including all the documents that he had supplied to OLAF, the record of his interview with an OLAF official and an edited version of the final case report which OLAF had supplied to him in response to a previous application for access to documents. However, the letter stated that with respect to the remaining documents in the case file, his request was not sufficiently precise and that, in accordance with Article 6(2) of Regulation 1049/2001 and Article 2, third paragraph, of Commission Decision 2001/937, OLAF required additional information in order to make it possible to identify the exact documents that he was requesting (for example, the date, author, addressee, etc.).

By e-mail dated 22 June 2004 (registered by OLAF on 30 June 2004, thus implying that the deadline for the institution's reply was 22 July 2004), the complainant replied to the request for clarification. He reiterated that he wanted access to all the documents in the file and to all the related documents. He also included in a footnote a list of references to documents that he had gleaned from other documents in his possession, but insisted that he was seeking access to all the documents in the file.

By letter dated 9 July 2004, OLAF rejected the complainant's initial application on the ground that the application lacked precision. It noted that the application for the file related to a large number of documents and that it would cause an undue administrative burden to go through each of the documents to determine whether it was in fact relevant to the complainant's request, whether any exceptions applied, and to strike out the parts of the document that may be covered by an exception.

By letter dated 6 August 2004, OLAF extended the deadline for reply by 15 working days, in accordance with Article 8(2) of Regulation 1049/2001. By letter dated 2 September 2004, OLAF replied to the confirmatory application providing the complainant with full or partial access to a number of documents on the list which he had provided.

As demonstrated above, the time-limits of the regulatory framework were respected by OLAF, except in relation to the reply to the confirmatory application, which was several days late.

Specifically, with respect to the delays related to the complainant's application of 12 October 2004, OLAF stated that, in accordance with Article 3 of the Commission's detailed rules for the application of Regulation 1049/2001(5), it had correctly transferred three parts of his application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee, respectively.

With regard to the third allegation, that is, that OLAF had wrongly refused to give the complainant access to the file on OF/2002/0356 in accordance with a "duty to assist" owed to officials (Fürsorgepflicht), OLAF essentially argued that, in the present case, the "duty to assist" its officials did not grant the complainant any right of access to documents additional to the right that he enjoyed under Regulation 1049/2001.

The complainant's observations

OLAF's opinion was forwarded to the complainant, who maintained his complaint. As regards the alleged delays, the complainant argued that any need to transfer an access application within the Commission must not lead to delayed replies thereto.

OLAF's opinion on the additional allegations

On 29 March 2005, OLAF submitted its opinion on the complainant's additional allegations that (i) OLAF's reply to his confirmatory application under Regulation 1049/2001 had been wrongly drafted in English, even though his confirmatory application had been written in German; and (ii) OLAF had wrongly refused to give him access to the names that had been struck out in note NT/ls D (2004-AC-4577), a copy of which he had, in the meantime, received.

OLAF made, in summary, the following comments.

With regard to the first additional allegation, OLAF acknowledged that paragraph 4 of the Commission's Code of Good Administrative Behaviour and Article 13 of the European Code of Good Administrative Behaviour required that a member of the public who writes to an institution in an official Community language should receive an answer in the same language. However, the complainant was not only a member of the public but also a Commission official. The institutions have the obligation to communicate to an official a decision which concerns him individually in a language that the individual mastered (Case T-197/98 R v Commission(6)). The complainant had amply demonstrated his mastery of the English language; he had, on numerous occasions, written to the Commission and to the Ombudsman in English; he had communicated orally with OLAF officials in English; and he had, on previous occasions, accepted OLAF's official correspondence concerning his requests for access to documents in English without objection. Thus, there was no doubt that the complainant was fully able to read, speak and understand English. Since he had never before objected to communicating in English, his allegation in that respect is frivolous. Nonetheless, in order to satisfy the formal requirements of the codes of good administrative behaviour, OLAF submitted German translations of the correspondence concerned.

With regard to the second additional allegation, OLAF noted that it had granted the complainant partial access to the document in question after having struck out the names in that document, on the basis of Article 4(1)(b) of Regulation 1049/2001. That exception provides that the institutions shall refuse access to a document where disclosure would undermine the protection of "privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data".

The complainant had submitted a further request for the names that had been struck out. Since his request concerned clearly and exclusively the disclosure of the names of individuals that had been struck out in the document in question, OLAF construed it as a request for transfer of personal data pursuant to Article 8 of Regulation 45/2001. Article 8(b) of that Regulation, which governs the transfer of personal data to recipients, other than Community institutions and bodies, subject to Directive 95/46/EC, provides that personal data shall only be transferred to such recipients if the recipient establishes the necessity of having the data transferred and if there is no reason to assume that the data subject's legitimate interests might be prejudiced.

In a subsequent e-mail to OLAF, dated 23 January 2005, the complainant claimed that Article 255 of the EC Treaty and Regulation 1049/2001 established the need to transfer these personal data to him. In its letter of 2 February 2005, OLAF explained that this argument was incorrect, as those provisions establish the principles, conditions and limits governing the right of access to documents. One of the conditions was the exceptions (including the privacy exception) established by Article 4(1)(b).

The complainant also argued that he should receive the data pursuant to Article 8(a) of Regulation 45/2001, on the ground that he needed them in order to check whether OLAF had acted independently in carrying out its investigation. OLAF explained that, as provided by Article 5(a) concerning the lawfulness of processing (which was linked to the necessity requirement of Article 8(a)), Article 8(a) was applicable only to public bodies responsible for carrying out tasks "in the public interest on the basis of the Treaties establishing the European Communities or other legal instruments adopted on the basis thereof". OLAF also explained that the argument for the necessity of receiving the data, which the complainant put forward under Article 8(a), could not be construed to meet the necessity requirement under Article 8(b). This was because there was no provision of the Treaties or other Community legal instruments establishing that a European citizen or a Commission official who has provided information to OLAF was entitled to receive personal data in order to check whether OLAF had acted independently in carrying out an investigation. The legislator had assigned this task to the OLAF Supervisory Committee.

Thus, the first condition of Article 8(b) of Regulation 45/2001 was not satisfied and OLAF was therefore prohibited, by the terms of the Data Protection Regulation, from releasing the names to the complainant.

The complainant's observations

In his observations on OLAF's opinion, the complainant made, in summary, the following comments.

With regard to the first allegation, the complainant stated that OLAF should make up its mind as to whether or not he should be treated like any other citizen in regard to his public access application under Regulation 1049/2001. He added that the correspondence and communications referred to by OLAF concerned different cases and were therefore irrelevant. He claimed that OLAF should issue an apology for its alleged failure to reply to his confirmatory application in German.

With regard to the second allegation, the complainant had, in the meantime, submitted a complaint to the European Data Protection Supervisor ("EDPS"). On 19 May 2005, the EDPS rejected the complaint as inadmissible, on the ground that Regulation 45/2001 was not applicable. It was therefore clear that OLAF had applied an irrelevant legal basis for its decision not to release the information concerned.

In his decision of 19 May 2005 on the admissibility of the complainant's complaint, the EDPS noted that the complainant had submitted a complaint concerning "a note for the attention of Mr David O'Sullivan, sent by Mr Bruener on 13 April 2004. You have asked for unrestricted access to the note, referring to Regulation 1049/2001, and you contest the fact that OLAF has only granted partial access, by blackening names." The EDPS pointed out that "[a]s you are aware, the scope of Regulation 45/2001 is laid down in Article 3, which establishes two conditions that both have to be complied with. The Article reads:

'1. This Regulation shall apply to the processing of personal data by all Community institutions and bodies insofar as such processing is carried out in the exercise of activities all or part of which fall within the scope of Community law.

2. This Regulation shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.'

With respect to Article 3 (2), one must distinguish personal data in - or intended to be part of - a filing system, from personal data which are only part of the text in a paper document. None of your complaints fulfil the criteria of Article 3 (2). Regulation 45/2001 is therefore not applicable, and the complaints fall outside the competences of the EDPS."

THE OMBUDSMAN'S EFFORT TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the arguments of the parties, on 12 May 2006 the Ombudsman proposed to OLAF a friendly solution relating to the complainant's first and second allegation. On the basis of his analysis of the relevant issues, t he Ombudsman proposed to OLAF the following proposal(7):

1. OLAF could consider re-examining its refusal to grant the complainant access to the documents in file OF/2002/0356.
2. OLAF could consider taking the steps provided for in Article 6(2) of Regulation 1049/2001, as regards the complainant's request for access to all the other documents which, although not contained in the file on investigation OF/2002/0356, nevertheless directly concern that file.
3. OLAF could consider examining the complainant's e-mail of 8 December 2004 as a confirmatory application, under Regulation 1049/2001 and giving the complainant access to the parts of the document concerned, unless it invokes, in accordance with this Regulation, valid and adequate grounds for not doing so.
4. OLAF could consider apologising to the complainant for its failure to promptly handle his public access application of 19 May 2004.
5. OLAF could consider apologising to the complainant for the delay in the handling of his public access application of 12 October 2004, unless it provides him with valid and adequate grounds for its decision to transfer three parts of his application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee respectively.

OLAF submitted its opinion on the friendly solution proposal on 21 July 2006, enclosing a large number of documents to which it gave partial access through the blanking-out of diverse information. However, the blanking-out had been carried out in such a manner that one could actually see a large part of the information that the black ink should have hidden. The Ombudsman therefore returned these documents to OLAF, asking it to correct this error. On 13 November 2006, OLAF submitted the documents anew, this time blanked in such a manner that the information covered by the black ink was no longer visible.

On the specific proposals made in the Ombudsman's letter of 12 May 2006, OLAF, in summary, (a) concluded that more extensive access could in fact be granted, (b) stated that there were no relevant documents in addition to those contained in the file itself, (c) recognised that the complainant's confirmatory application should in fact have been replied to under Regulation 1049/2001 and not Regulation 45/2001 on data protection, but that data protection concerns still prevented disclosure, (d) recognised that a delay had taken place, and apologised for this, (e) maintained that it had acted lawfully in transferring the complainant's above-mentioned three access applications to other Commission services. In his observations of 4 December 2006, the complainant argued that OLAF's response was inadequate and not compliant with the case-law referred to in the Ombudsman's friendly solution proposal.

THE DECISION

1 Allegation of wrong refusal to grant access to the complete file on OLAF internal investigation OF/2002/0356

1.1 The complainant alleged that OLAF had wrongly refused to give him access to the complete file on OLAF internal investigation OF/2002/0356, which based on a 'whistle blowing' complaint submitted by the complainant himself. The complainant's access request had been made in the form of an application under Regulation 1049/2001 regarding public access to Parliament, Council and Commission documents.

1.2 OLAF essentially argued, that is, that it was up to the complainant to identify the precise documents to which he wanted access, and that Regulation 1049/2001 did not foresee that OLAF should spend a disproportionate amount of time in providing an applicant with copies of a large number of documents.

1.3 In the relevant part of his friendly solution proposal, the Ombudsman did not accept the above arguments put forward by OLAF. He considered that (a) OLAF clearly knew to which investigation file the complainant referred, and the complainant's application had therefore been made in a "sufficiently precise manner" within the meaning of Article 6(1) of Regulation 1049/2001; (b) the conditions for demonstrating an excessive "administrative burden", as set out in the VIK judgment of the Court of First Instance(8), had not been complied with. In light of these considerations, the Ombudsman concluded that OLAF's refusal at issue was not well-founded. He suggested that OLAF could consider re-examining its refusal to grant the complainant access to the documents in file OF/2002/0356.

1.4 In its response, OLAF re-examined its contested decision, in the way described below.

First, OLAF identified the following categories of documents in file OF/2002/0356 (totalling 256 pages):

1. Notes to the file: 39
2. Internal correspondence (Commission/OLAF or within OLAF) 147
3. External correspondence between OLAF and complainant 27
4. External correspondence between OLAF and Ombudsman 14
5. External correspondence other 17
6. Official case documents(9) 8
7. Drafts case documents 1
8. Cassettes of interview with complainant 1
9. Court decision 1
10. CCAM documentation 1

Then OLAF reached the following conclusions on the possibility of granting access:

The complainant was obviously in possession of all documents in category 3 (which he had either sent to OLAF or received from OLAF). OLAF had examined the documents in all other categories and had found that the complainant was already in possession of many of these documents, including:

• three of the notes in category 1 (provided by OLAF in response to complainant's confirmatory application of 11 July 2004),
• some or all documents in category 4 (provided by the Ombudsman in the course of this case) and
• four of the documents in category 6 (including the assessment of initial information, the decision to open the internal investigation, appointment of investigator, and an edited version of the final case report, provided by OLAF in response to complainant's confirmatory application of 11 July 2004).

OLAF had concluded that, based on Regulation 1049/2001, it could grant access to all documents in categories 5 and 9, and to the remaining documents in categories 4 and 6. However, the names of individuals and companies should be removed, in accordance with Articles 4(l)(b) and 4(2), first indent, respectively, of Regulation 1049/2001.

Further, in an effort to reach a friendly solution, OLAF would be willing to disclose to the complainant, for his private use, the cassettes in category 8. Since OLAF had no technical means for reproducing these cassettes, the complainant would be permitted to listen to the cassettes at OLAF's premises.

However, OLAF had concluded that each of the documents in categories 1, 2 and 7 were covered by one or more of the exceptions in Article 4 of Regulation 1049/2001. In particular:

• The documents in category 1 are notes to the file prepared by the investigator responsible for investigation OF/2002/0356. These documents could not be disclosed because they are covered by the exception specified in Article 4(3), second sub-paragraph, of Regulation 1049/2001. Disclosure of these documents would reveal the thought processes and decisions of the investigator and other responsible officials concerning the development and direction of the investigation, regarding both substantive and administrative aspects. This would seriously undermine OLAF's decision-making process. The complainant had not specified any overriding public interest in disclosure of such documents, and OLAF was not aware of any such interest.
• The documents in category 2 are correspondence between or among OLAF staff, or between OLAF and the Commission, concerning investigation OF/2002/0356. These documents could not be disclosed because they were covered by the exception specified in Article 4(3), second sub-paragraph, of Regulation 1049/2001. Disclosure of these documents would reveal the reflections of OLAF and the concerned Commission services regarding this investigation, leading to internal decisions taken with respect to it. This would seriously undermine OLAF's decision-making process. The complainant had not specified any overriding public interest in disclosure of such documents, and OLAF was not aware of any such interest.
• The document in category 7 was a draft of the Final Case Report. This document could not be disclosed because it was covered by the exception specified in Article 4(3), second sub-paragraph, of Regulation 1049/2001. Disclosure of this document would reveal the internal reflections of OLAF regarding the findings and conclusions that should be reflected in the final version of this document. This would seriously undermine OLAF's decision-making process. The complainant had not specified any overriding public interest in disclosure of this document, and OLAF was not aware of any such interest.

Moreover, some or all of the documents in each of these three categories, or parts of such documents, were covered by the exceptions for:

• The protection of privacy and the integrity of the individual, in accordance with Community legislation regarding protection of personal data (Article 4(1 )(b));
• The commercial interests of natural or legal persons (Article 4(2), first indent).

1.5 In his observations, the complainant argued, in essence, (a) that OLAF's response failed to comply with the standards for giving reason laid down in the case-law; (b) that the fact that he was already in possession of a version of some of the documents was irrelevant, given that the versions held by OLAF might contain additional information such as hand-written notes; (c) that overriding public interests in more extensive access did exist, and consisted of an interest in knowing whether OLAF carried out its investigation properly and whether OLAF acted fully independently of the Commission; (d) that, specifically, OLAF's remark that it was technically not able to copy a cassette lacked any credibility whatsoever; and (e) that the blanking-out in the documents provided by OLAF was in large parts entirely incoherent and incomprehensible.

1.6 The Ombudsman, first of all, notes that OLAF in essence accepted his relevant friendly solution proposal, since it carried out a re-examination of its refusal to grant the complainant access to the documents in file OF/2002/0356, and granted access to a considerable number of documents contained in that file.

Following the re-examination of its contested decision, OLAF nevertheless decided, on the basis of new grounds, to refuse access to a number of documents or parts of documents. In this respect, OLAF, thus, attempted to remedy in its reply to his friendly solution proposal the shortcomings identified in the reasoning of its challenged refusal. The Ombudsman proceeds to examine whether this attempt was successful.

1.7 It is well settled that the examination required for the purpose of processing a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, whether there was no overriding public interest in disclosure. Further, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons given for the decision(10). An assessment of documents by reference to categories, rather than on the basis of the actual information contained in those documents, is, in principle, insufficient, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents(11).

In addition, the exceptions provided for in Article 4 of Regulation 1049/2001 must be interpreted and applied strictly(12).

The complainant's possession of certain documents

1.8 In its reply to the Ombudsman's friendly solution proposal, OLAF noted that the complainant was already in possession of certain documents found in file OF/2002/0356. For this reason, it did not grant the complainant's access request, in relevant part. OLAF therefore had a duty to state valid and adequate reasons for this refusal, including a reference to a relevant legal basis. However, OLAF merely referred to the above factual circumstance (as it saw it), i.e., that the complainant was in possession of these documents. It made no reference to the legal basis of its above refusal and Article 4 of the Regulation contains no exception of the kind suggested by OLAF's approach. Moreover, the complainant, who was not obliged to show any particular interest in having access to the requested documents(13), contested, in his observations, OLAF's above approach and stated that he still wanted access to these documents. In light of the above, the Ombudsman concludes that OLAF's attempt, in its reply to his friendly solution proposal, to remedy the shortcomings in the reasoning of its challenged refusal, was not successful, to the extent it was based on the fact that the complainant was apparently already in possession of certain documents contained in file OF/2002/0356.

Application of Article 4 (1)(b) and (2) first indent of Regulation 1049/2001 (data protection)

1.9 In its response to the Ombudsman's friendly solution proposal, OLAF stated that some or all of the documents in three categories of documents it identified in file OF/2002/0356, or parts of such documents, were covered by the exception laid down in Article 4 (1)(b) or (2) first indent of Regulation 1049/2001. It also stated that, in accordance with the above provisions, it removed the names of individuals and companies which appeared in certain documents belonging to other categories, to which it granted access.

Relatedly, it suffices to note that these statements obviously do not meet the requirement of a reasoned examination referred to in point 1.7 above. It is also recalled that the mere fact that a document contains personal data, such as names of persons, does not mean that the provision of Article 4 (1)(b) of Regulation 1049/2001 is applicable(14). The Ombudsman, thus, concludes that OLAF's attempt, in its reply to his friendly solution proposal, to remedy the shortcomings in the reasoning of its challenged refusal, was not successful, to the extent it was based on the provisions of Article 4 (1)(b) and (2) first indent of Regulation 1049/2001.

Application of Article 4(3), second sub-paragraph, of Regulation 1049/2001

1.10 In its response to the Ombudsman's friendly solution proposal, OLAF stated that each of the documents in three categories of documents it identified in file OF/2002/0356 ((a) notes for the file prepared by the investigator, (b) correspondence between OLAF staff or between OLAF and the Commission, and (c) draft of the final case report) was covered by the exception laid down in Article 4 (3) second sub-paragraph of Regulation 1049/2001. In support of this position, OLAF argued that disclosure would reveal the thought process and decisions of the investigator and other responsible officials, as well as the internal reflections of OLAF or the reflections of the concerned Commission services, and that such revelation would seriously undermine the relevant decision-making processes.

1.11 Independently of the question whether the documents concerned contain "opinions", within the meaning of Article 4(3), second paragraph, of Regulation 1049/2001, and of the inadequacy of the Commission's reasoning in this respect, the above argument put forward by the Commission does not meet the requirement of a reasoned examination referred to in point 1.7 above. Upholding such a broad argument would effectively lead to the conclusion that the Administration may, in general, refuse disclosure of documents containing opinions for internal use, even after the relevant decision has been taken, on the ground that disclosure would affect adversely its interest in not revealing its "internal reflections" and "thought processes." This approach clearly cannot be squared with the principle of strict interpretation of the exception laid down in Article 4(3) second sub-paragraph and disregards the intent of the Community legislator who enacted Regulation 1049/2001. The Ombudsman, thus, concludes that OLAF's attempt, in its reply to his friendly solution proposal, to remedy the shortcomings in the reasoning of its challenged refusal, was not successful, to the extent it was based on the provision of Article 4(3), second paragraph, of Regulation 1049/2001.

1.12 In light of the above, the Ombudsman concludes that OLAF has failed to provide valid and adequate grounds for its refusal to give the complainant access to a number of documents or to parts of documents in file OF/2002/0356. This is an instance of maladministration.

2 Alleged wrong refusal to grant access to all the documents which were not contained in the file but which nevertheless directly concerned that file

2.1 The complainant alleged that OLAF had wrongly refused to give him access to the complete file on OF/2002/0356 and to all the documents which were not contained in the file but which nevertheless directly concerned that file.

2.2 In his proposal for a friendly solution, the Ombudsman considered that OLAF had reasonably concluded that this part of the access application was not sufficiently precise given that all the documents directly concerning that file would presumably be contained in the same file. However, the Ombudsman also considered that OLAF should subsequently have asked the complainant to clarify his application in this respect and assisted the complainant in doing so, in accordance with Article 6(2) of Regulation 1049/2001. Such a course of action would have given the complainant the opportunity to clarify what he meant by documents "directly concerning" the file and would have provided OLAF with the possibility to assist the complainant in doing so by informing him of the existence of any documents relevant to investigation OF/2002/0356 but not included in the file of this investigation. The Ombudsman accordingly found that OLAF's failure to take the steps provided for in Article 6(2) of Regulation 1049/2001, as regards the complainant's request for access to all other documents which, although not contained in the file on investigation OF/2002/0356, nevertheless directly concerned that file, could constitute an instance of maladministration. He therefore proposed that OLAF could consider taking the steps provided for in Article 6(2) of Regulation 1049/2001, as regards the complainant's request for access to all the other documents which, although not contained in the file on investigation OF/2002/0356, nevertheless directly concern that file.

2.3 In its response, OLAF noted that the only assistance that it would be able to provide the complainant in this regard would be to tell him that it was OLAF's policy to include all documents related to an investigation in the investigation file, as explained in sections 3.1.4 and 4.2 of the OLAF Manual. Thus, OLAF was not aware of any documents related to investigation OF/2002/0356 other than those contained in the file of that investigation.

2.4 In his observations, the complainant contested OLAF's above arguments. He stated that specific evidence and certain events indicated that there must be other documents than the ones in the file. For instance, he was aware of other correspondence (apparently not contained in the file) between OLAF and the Commission relating to the OLAF investigation here concerned, and also of the fact that OLAF's Director has been called to a hearing by the European Parliament relating to that investigation, which had presumably given rise to the creation of documents. A similar observation applied, for instance, to questions put by members of the European Parliament.

2.5 The Ombudsman reiterates that the phrase "[documents] directly concerning" the file OF/2002/0356 , which was used in the complainant's access application, was not sufficiently precise. That is why, in his friendly solution proposal, he suggested to OLAF to contact the complainant and discharge its duties under Article 6(2) of Regulation 1049/2001. Instead of taking these steps, OLAF replied by stating that it was not aware of any documents relating to investigation OF/2002/0356 other than those contained in the file of that investigation. In his observations, the complainant specified that such documents would be, in particular, those relating to the hearing of OLAF's Director held by the European Parliament concerning the investigation at issue. In light of the above, the Ombudsman concludes that OLAF's failure to take the steps provided for in Article 6(2) of Regulation 1049/2001, as regards the complainant's request for access to all the other documents which, although not contained in the file on investigation OF/2002/0356, nevertheless directly concern that file, amounts to an instance of maladministration.

3 Allegation that OLAF had wrongly refused to grant access to the names that had been struck out in note NT/ls D (2004-AC-4577)

3.1 Under Regulation 1049/2001, OLAF gave the complainant partial access to a note entitled NT/ls D (2004-AC-4577), after having struck out certain names in the note. On 8 December 2004, the complainant sent an e-mail entitled "confirmatory application under Regulation 1049/2001", in which he requested access to the names that had been struck out in the above-mentioned document. OLAF decided to deal with the request under Regulation 45/2001 on data protection. OLAF reasoned that since the document concerned had been partly released, and since the blanked parts were names of individuals, the confirmatory application on this issue was essentially a request for personal data, and hence Regulation 45/2001 on data protection applied.

3.2 In his friendly solution proposal, the Ombudsman did not accept the above approach adopted by OLAF. He first noted that, in accordance with Article 7(2) of Regulation 1049/2001, a confirmatory application may be submitted in case the institution concerned has granted only partial access to a requested document. Moreover, it must be pointed out that Regulation 1049/2001 nowhere stipulates that an application for access to documents or a relevant confirmatory application should (or may) be dealt with as a simple request for access to personal data, to the extent it concerns documents containing such data, and, hence, examined not on the basis of Regulation 1049/2001 but rather in light of Regulation 45/2001. Relatedly, Regulation 45/2001, enacted on the basis of Article 286 of the EC Treaty, makes it clear that "[a]ccess to documents, including conditions for access to documents containing personal data, is governed by the rules adopted on the basis of Article 255 of the EC Treaty ..."(15), namely, on the basis of the rules concerning access to documents, in particular of Regulation 1049/2001. In light of the above, Regulation 1049/2001 is to be considered as lex specialis in relation to Regulation 45/2001, as regards requests for access to documents concerning "personal data", within the meaning of Article 2(a) of the latter Regulation. It follows that the complainant's above-mentioned e-mail of 8 December 2004, entitled "confirmatory application under Regulation 1049/2001", should have been dealt with as such and examined by OLAF on the basis of Regulation 1049/2001. Hence, OLAF's failure to deal with this e-mail as a confirmatory application and, further, to assess its merits under Regulation 1049/2001, appeared to amount to an instance of maladministration. Thus, a pertinent proposal for a friendly solution was made. More specifically, the Ombudsman proposed that OLAF could consider examining the complainant's e-mail of 8 December 2004 as a confirmatory application under Regulation 1049/2001, as well as giving the complainant access to the parts of the document concerned unless it would, in accordance with this Regulation, invoke valid and adequate grounds for not doing so.

3.3 In its reply to the Ombudsman's proposal for a friendly solution, OLAF recognised that the complainant's confirmatory application should in fact have been dealt with under Regulation 1049/2001, and not on the basis of Regulation 45/2001. It apologised for this error.

3.4 OLAF refused, however, to grant the requested access, which concerned full access to the document concerned, including the names of persons mentioned therein. It stated that it did not share the Ombudsman's view that "Regulation 1049/2001 is to be considered as lex specialis in relation to Regulation 45/2001, as regards requests for access to documents concerning 'personal data' within the meaning of Article 2(a) of the latter Regulation." It went on to note that, on the contrary, the right of access to documents and the right of privacy and data protection are of the same nature, importance, and degree, and thus have to be applied together; a balance must be found in each particular case concerning a request for access to a public document which contains personal data. On the one hand, the right of public access to documents under Regulation 1049/2001 is generally unrestricted and automatic and is not dependent on the demonstration of any special interest particular to the person requesting access. The person making that request is not normally obliged to state reasons for the request. On the other hand, personal data may only be disclosed lawfully and legitimately according to the basic principles governing the right to privacy and the specific provisions governing the processing of personal data. The provisions of Regulation 45/2001 specify that the person making a request for personal data must establish the necessity for disclosure of such data and OLAF must be satisfied that the interests of the person concerned will not be prejudiced. Specific means to reconcile the rights of public access to documents and of privacy and data protection are enshrined in Article 4(1)(b) of Regulation 1049/2001, which should be read in the light of Recital (11) in the preamble to that Regulation, according to which "in assessing the exceptions, the institutions should take account of the principles in Community legislation concerning the protection of personal data, in all areas of Union activities." Article 8(b) of Regulation 45/2001 establishes two conditions for transfer of personal data: (a) that the "recipient establishes the necessity of having the data transferred," and (b) that "there is not reason to assume that the data subject's legitimate interests might be prejudiced." OLAF emphasised that the complainant had not demonstrated his necessity for receiving that data. Moreover, even if the complainant could establish necessity, OLAF was of the view that, in this case, the data subject's legitimate interests might be prejudiced by the transfer. Thus, OLAF would be obliged to deny access on this ground. Disclosure of these personal data, which appear in a professional context, could undermine the privacy of the person concerned. Relatedly, OLAF noted that the interaction between Regulation 45/2001 and Regulation 1049/2001 was at stake in three cases pending before the Court of First Instance (including Case T-194/04, The Bavarian Lager Co. Ltd. v Commission) and asked the Ombudsman to await the relevant judgments before proceeding to adopt any final decision thereon.

In his observations, the complainant rejected OLAF's above arguments.

3.5 The Ombudsman notes that the judgment of the CFI in The Bavarian Lager case(16) contains a number of holdings which, on the one hand, confirm the correctness of his relevant analysis in his friendly solution proposal and, on the other hand, lead to the rejection of the central elements of OLAF's argumentation presented above. More specifically, the CFI held, inter alia, the following: (a) access to documents containing personal data is governed by Regulation 1049/2001, which implies that, where personal data are transferred in order to give effect to Article 2 of this Regulation, laying down the right of access to documents for all citizens of the Union, the situation falls within the application of that Regulation and, therefore, the applicant does not need to prove the necessity of disclosure for the purposes of Article 8(b) of Regulation 45/2001(17); (b) the exception laid down by Article 4(1)(b) of that Regulation concerns only disclosure of personal data which would undermine the protection of the privacy and integrity of the individual(18); (c) the fact that, in accordance with the case-law of the European Court of Human Rights, the concept of 'private life' is a broad one and that the right to the protection of personal data may constitute one of the aspects of the right to respect for private life, does not mean that all personal data necessarily fall within the concept of 'private life'(19); (d) a fortiori, not every disclosure of personal data is capable of undermining the private life of the person concerned(20); (e) the mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of the persons concerned is affected(21); (f) in order to be able to determine whether the exception under Article 4(1)(b) of Regulation No 1049/2001 applied in the specific case, which concerned the blanking out of names of persons from the minutes of a meeting between Commission officials, UK officials and representatives of the Confederation des Brasseurs du Marche Commun, it was necessary to examine whether public access to the names of the participants at this meeting was capable of actually and specifically undermining the protection of the privacy and the integrity of the persons concerned(22); (g) not every professional activity is wholly and necessarily covered by protection of the right to respect for private life(23); (h) the disclosure of the names in question did not lead to an interference with the private life of the persons who participated in the meeting and would not undermine the protection of their private life and the integrity of their person(24).

3.6 In view of what has been remarked in point 3.2 above and taking into account the above holdings of the CFI and the general requirements of a reasoned assessment referred to in point 1.7 above, the Ombudsman finds it evident that OLAF has failed to provide valid and adequate grounds for its refusal to provide full access to the document here concerned. This amounts to an instance of maladministration.

4 The allegation of a breach of the "duty to have regard for the interests/welfare of the officials"

4.1 The complainant alleged that OLAF's refusal of access to documents was also a breach of its duty to have regard for his interests as an official ("the duty"/"the duty here concerned").

4.2 Th e Ombudsman notes that this duty, as interpreted by the case-law, refers to the "balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants."(25) The present case concerns the complainant's right to have access to documents, as provided for in Regulation 1049/2001, and not under the Staff Regulations. This duty does not appear to impose on the Administration, in circumstances such as those of the present case, additional obligations to grant access to documents. Thus, the Ombudsman concludes that there has been no instance of maladministration corresponding to the complainant's above allegation.

5 Allegation that a reply was wrongly made in English

5.1 The complainant alleged maladministration on the part of OLAF for replying to his confirmatory application in English although that application had been written in German.

5.2 The Ombudsman understands OLAF's opinion to recognise that there was a legal obligation, under Regulation 1049/2001, to provide the complainant with a reply in German. The Ombudsman furthermore notes that OLAF, in response to the complainant's allegation, eventually provided a German translation of its relevant reply. In light of the foregoing, this part of the case has, in essence, been settled, and it is therefore not necessary to further examine it.

6 Alleged delay in the handling of access applications

6.1 The Ombudsman examined two issues of delay in his proposal for a friendly solution: (1) OLAF's handling of the complainant's access application of 19 May 2004; (2) OLAF's transfer of three parts of the complainant's access application to other Commission services.

Delay in the handling of access application of 19 May 2004

6.2 In the present case, the complainant faxed his initial application for access addressed to OLAF on 19 May 2004 (registered by OLAF on 26 May 2004).

On 11 June 2004, that is 12 working days after registration of the application, OLAF, referring to Article 6(2) of Regulation 1049/2001(26), asked the complainant to clarify his application with respect to documents contained in the file itself,

The complainant replied to that request in the morning of 22 June 2004 (registered by OLAF on 30 June 2004).

OLAF refused the complainant's application of 19 May on 9 July 2004, that is, 13 working days after the complainant's above-mentioned reply.

6.3 In the analysis leading to his proposal for a friendly solution, the Ombudsman noted, first, that Article 7(1) of this Regulation provides that "[w]ithin 15 working days from registration of the application, the institution shall either grant access to the document requested [...] or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article."

The Ombudsman accordingly found that a request for clarification of an application under Article 6(2) of the Regulation constitutes, in essence, a decision by the institution that the application cannot be accepted, because it has not been made "in a sufficiently precise manner to enable the institution to identify the document", as required by Article 6(1) of the Regulation. Such a request therefore necessarily implies a refusal to grant the application, as formulated initially. Hence, a request for clarification, formulated in accordance with Article 6(2) of Regulation 1049/2001 (and in compliance with the institution's "duty to assist" the applicant in clarifying his or her application), is, in principle, to be made within 15 working days from the registration of the application, namely, within the deadline provided for in Article 7(1) of the Regulation.

Moreover, such a request must, in accordance with the above-mentioned provisions of Article 7(1) of the Regulation, inform the applicant of the specific reasons why his or her application is not "sufficiently precise" and of his or her right to make a confirmatory application against the institution's decision to deal with the application as such. If the applicant, in response to such a request made by the Commission (or OLAF), provides the institution with information intended to clarify his or her application, the institution should, in accordance with the provision of Article 2 of the Annex to the Commission Decision of 5 December 2001 mentioned above(27), make a decision on the application (which, in essence, has been reformulated, on the basis of the information provided) within 15 working days from the date it received the additional information.

In the present case, OLAF made its request for clarification on 11 June 2004, that is, 12 working days following registration of the complainant's public access application and hence, within the 15-working-day deadline referred to above. However, this request was not justified, with regard to the documents contained in file OF/2002/0356 (see point 1.3 above). Moreover, OLAF failed to inform the complainant of his right to file a confirmatory application against its decision to consider that his application was not sufficiently precise. Subsequently, the complainant's reply of 22 June 2004, which explicitly challenged the propriety of this decision, was not dealt with by OLAF as a confirmatory application. Finally, OLAF expressly rejected the complainant's access application, because of its vagueness, on 9 July 2004, that is more than 30 working days after the registration of the complainant's application. Under these circumstances, it seemed that OLAF had failed to comply with its duty, provided for in Article 7(1) of Regulation 1049/2001, to handle promptly the complainant's access application of 19 May 2004. This amounted to an instance of maladministration. The Ombudsman thus made the proposal that OLAF could consider apologising to the complainant for its failure to promptly handle his access application of 19 May 2004.

6.4 In its reply to the Ombudsman's proposal for a friendly solution, OLAF maintained that it had respected the relevant provisions in Regulation 1049/2001, except that the reply to the complainant's confirmatory application had been delayed by four days. OLAF apologised for this four-day delay.

6.5 In his observations, the complainant stated that OLAF's apology could be accepted in respect to the four-day delay referred to above, but also noted that the Ombudsman had in fact identified other delays. Furthermore, and in light of OLAF's behaviour towards him, the complainant stated that he doubted the sincerity of OLAF's apology.

6.6 The Ombudsman notes OLAF's position to maintain its view that it had respected the relevant provisions in Regulation 1049/2001. He regrets, however, that OLAF has refrained entirely from actually addressing the specific and concrete delays that the Ombudsman had identified (see point 6.3 above).

6.7 In light of the foregoing, the Ombudsman concludes that OLAF failed to comply with its duty, provided for in Article 7(1) of Regulation 1049/2001, to handle promptly the complainant's access application of 19 May 2004. This constitutes an instance of maladministration. The Ombudsman will make a relevant critical remark below.

OLAF's transfer of three parts of the complainant's access application

6.8 With regard to the complainant's access application of 12 October 2004, OLAF stated that, in accordance with Article 3 of the Commission's detailed rules for the application of Regulation 1049/2001(28), it correctly decided to forward three parts of his application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee respectively. The complainant challenges this decision, which caused delays in the handling of his application.

6.9 In the examination leading to his proposal for a friendly solution, the Ombudsman noted the following.

Regulation 1049/2001 applies to three Community institutions, that is, the Parliament, the Council and the Commission. OLAF is part of the Commission, but is under a duty to carry out its investigative functions in full independence(29). The Commission's detailed rules for the application of Regulation 1049/2001 thus set out specific rules regarding the handling of access applications concerning OLAF's activities. The provision referred to by OLAF, Article 3 of Commission Decision 2001/937, stipulates as follows (emphasis added):

"The applicant shall be informed of the response to his application either by the Director-General or the head of department concerned, or by a Director designated for this purpose in the Secretariat-General or by a Director designated in the OLAF where the application concerns documents concerning OLAF activities referred to in Article 2(1) and (2) of Commission Decision 1999/352/EC, ECSC, Euratom establishing OLAF, or by a member of staff they have designated for this purpose."

Article 2(1) and (2) of Commission Decision 1999/352 provides as follows:

"Article 2

Tasks of the Office [i.e., OLAF]

1. The Office shall exercise the Commission's powers to carry out external administrative investigations for the purpose of strengthening the fight against fraud, corruption and any other illegal activity adversely affecting the Community's financial interests, as well as any other act or activity by operators in breach of Community provisions.

The Office shall be responsible for carrying out internal administrative investigations intended:

(a) to combat fraud, corruption and any other illegal activity adversely affecting the Community's financial interests,

(b) to investigate serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Communities likely to lead to disciplinary and, in appropriate cases, criminal proceedings or an analogous breach of obligations by Members of the institutions and bodies, heads of the bodies or members of staff of the institutions and bodies not subject to the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Communities.

The Office shall exercise the Commission's powers as they are defined in the provisions established in the framework of the Treaties, and subject to the limits and conditions laid down therein.

The Office may be entrusted with investigations in other areas by the Commission or by the other institutions or bodies.

2. The Office shall be responsible for providing the Commission's support in cooperating with the Member States in the area of the fight against fraud."

The three parts of the access application transferred by OLAF concerned (i) the text of a contract relating to the issues that had incited the complainant to make the "whistleblower" complaint that gave rise to OLAF investigation OF/2002/0356; (ii) a note from the Commission's Secretary-General to the Director of OLAF in relation to investigation OF/2002/0356; and (iii) a report by the OLAF Supervisory Committee concerning OF/2002/0356 and copies of extracts of the minutes of meetings during which the Supervisory Committee discussed investigation OF/2002/0356. It seems undisputed that these documents related to one of the activities referred to in Article 2(1) of Commission Decision 1999/352, namely, 'internal administrative investigations'. In light of the broad wording of Commission Decision 2001/937 - "where the application concerns documents concerning OLAF activities referred to in Article 2(1) and (2)" - the Ombudsman therefore took the view that OLAF's mere reference to Article 3 of Commission Decision 2001/937 did not, in itself, adequately explain OLAF's decision to make the transfer here concerned. Hence, this decision, which did not appear to be adequately reasoned, involved an instance of maladministration. The Ombudsman, thus, proposed to OLAF to consider apologising to the complainant for the delay in the handling of his public access application of 12 October 2004, unless it would provide him with valid and adequate grounds for its decision to transfer three parts of his application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee respectively.

6.10 In its reply to the Ombudsman's proposal for a friendly solution, OLAF maintained that it had respected the relevant provisions, yet without addressing the specific points in the Ombudsman's above analysis.

6.11 The Ombudsman notes OLAF's position to maintain its view that it had respected the relevant provisions. He regrets, however, that OLAF has refrained from actually addressing the specific points in his above analysis.

6.12 In light of the foregoing, the Ombudsman concludes that OLAF's decision to transfer three parts of the complainant's access application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee respectively was not duly justified and, hence, constituted an instance of maladministration. The Ombudsman will make a relevant critical remark below.

7 Conclusion

On the basis of his inquiries into this complaint and following OLAF's reply to his relevant friendly solution proposal, the Ombudsman finds

1. no instance of maladministration corresponding to the complainant's fourth allegation;
2. that the matter has been settled as regards the complainant's fifth allegation;
3. that the matter has been settled, as regards the complainant's first allegation, to the extent that OLAF provided the complainant with access to a number of documents in file OF/2002/0356;
4. the instances of maladministration, identified in points 1.12, 2.5, 3.6, 6.7 and 6.12 of his present decision.

The Ombudsman does not find it opportune to further pursue the case by making a draft recommendation regarding these instances of maladministration. He notes that he has dealt with a considerable number of complaints submitted by the complainant against the Commission (including OLAF, which forms part of the Commission). These cases demonstrate a more general and intense dispute between them, in the context of which the institution has, most of the times, strongly stood by and insisted on its (often principled) positions, even where the Ombudsman, on the basis of a reasoned analysis, has not considered them justified. He recalls that he has already made a reasoned friendly solution proposal in relation to the above instances of maladministration, without a positive outcome, mainly because of OLAF's tendency to insist on its positions, rather than responding properly to the points and findings made by the Ombudsman and complying with the relevant requirements of Regulation 1049/2001, as interpreted by the Community Courts. Moreover, during the present inquiry, significant developments have taken place, in view of the holdings of the Court of First Instance in The Bavarian Lager decision, which are relevant to essential aspects of the case at hand. Relatedly, a renewed access application to OLAF, under Regulation 1049/2001, would probably be considerably more economical, from a procedural point of view, than a draft recommendation by the Ombudsman. It is also noted that Commissioner Kallas has recently asked the European Ombudsman to send him copies of all his correspondence with OLAF, which applies to the present decision also.

In light of the above, the Ombudsman closes the case with the following critical remarks (5):

1. OLAF has failed to provide valid and adequate grounds for its refusal to give the complainant access to a number of documents or to parts of documents in file OF/2002/0356. This is an instance of maladministration.
2. OLAF's failure to take the steps provided for in Article 6(2) of Regulation 1049/2001, as regards the complainant's request for access to all the other documents which, although not contained in the file on investigation OF/2002/0356, nevertheless directly concern that file, amounts to an instance of maladministration.
3. OLAF failed to provide valid and adequate grounds for its refusal to provide full access to note NT/ls D (2004-AC-4577. This amounts to an instance of maladministration.
4. OLAF failed to comply with its duty, provided for in Article 7(1) of Regulation 1049/2001, to handle promptly the complainant's access application of 19 May 2004. This constitutes an instance of maladministration.
5. OLAF's decision to transfer three parts of the complainant's access application to OPOCE, the Commission's Secretariat-General and the OLAF Supervisory Committee respectively was not duly justified and, hence, constituted an instance of maladministration.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ 2001 L 145, p. 43.

(2) "If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents."

(3) OJ 2001 L 8, p. 1.

(4) "1. The institutions shall refuse access to a document where disclosure would undermine the protection of:
(...)
(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data".

(5) 2001/937/EC, ECSC, Euratom: Commission Decision of 5 December 2001 amending its rules of procedure (notified under document number C(2001) 3714), OJ 2001 L 345, p. 94.

(6) Case T-197/98 R v Commission [2000] ECR-SC I-A-55 and II-241, paragraph 46.

(7) Additionally, the Ombudsman pointed out that, in accordance with Article 6 of the Ombudsman's implementing provisions, the proposal for a friendly solution did not concern the complainant's third original allegation (concerning the alleged breach of the "duty to assist") and the first additional allegation (concerning the language of the reply to the complainant's confirmatory application), the assessment of which would be presented in his decision closing the present inquiry.

(8) Case T-2/03 Verein für Konsumenteninformation [2005] ECR p. II-1121, paragraphs 112-115. The judgment was published on 13 April 2005, that is, after OLAF's contested decision and its opinion in the present case.

(9) Section 3.4 of the OLAF Manual establishes a set of official documents that must be prepared during the course of an investigation, based upon the forms in the Manual, including Opening of Investigation, Investigation Authority, Final Case Report, and Case Closure Note.

(10) See Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 54 (citing cases). The general nature of the statement of reasons on which a refusal of access is based, as well as its brevity or its formulaic character, can be indicative of failure to carry out a concrete examination only where it is objectively possible to give the reasons justifying the refusal of access to each document, without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose. See Case T-36/04, cited above, paragraph 67.

(11) See Case T-36/04, op.cit., paragraph 56.

(12) See Case T-36/04, API v Commission judgment of 12 September 2007 [not yet published in the ECR], paragraph 54 (citing cases).

(13) Cf. Case T-110/03, Sison v Council [2005] ECR II-1429, paragraphs 51 and 53.

(14) Case T-194/04 Bavaria Lager v. Commission, judgment of 8 November 2007 (not yet published in the ECR), paragraph 123.

(15) See recital 15 of its preamble.

(16) Case T-194/04 Bavaria Lager v. Commission, judgment of 8 November 2007 (not yet published in the ECR).

(17) See paragraphs 100, 107 and 138 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(18) See paragraph 128 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(19) See paragraph 118 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(20) Cf. paragraph 119 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(21) See paragraph 123 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(22) See paragraph 120 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(23) See paragraph 131 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(24) See paragraph 131 of Case T-194/04 Bavarian Lager v. Commission, cited above.

(25) See. e.g., Case 298/93 P, K v Court of Justice, [1994] ECR I-3009, paragraph 38: "The administration's duty to have regard to the welfare of officials […] reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of this balance is that when the authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the individual concerned."

(26) "1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. "In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution."

(27) See footnote 5.

(28) 2001/937/EC, ECSC, Euratom: Commission Decision of 5 December 2001 amending its rules of procedure (notified [sic] under document number C(2001) 3714), OJ 2001 L 345, p. 94.

(29) Commission Decision 1999/352 of 28 April 1999 establishing the European Anti-Fraud Office (OLAF), OJ 1999 L 136, p. 20, Article 3.