Dear Mr S.,
On 30 April 1999, I informed you of an own-initiative inquiry into public access to documents held by four bodies, including Europol. On 15 July 1999, Europol sent me its opinion. On 24 September 1999, I asked for further information and you replied on 24 November 1999. On 13 December 1999, the Ombudsman addressed draft recommendations to Europol. On 7 March 2000 you sent a letter, to which I replied on 27 March 2000. On 16 June 2000, I wrote to you again and you replied on 6 July 2000.
I write now to let you know the results of the own-initiative inquiry as regards Europol.

THE REASONS FOR THE INQUIRY

According to Article 195 EC, the European Ombudsman may conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of Community institutions and bodies.
In June 1996, the Ombudsman began an own-initiative inquiry ( 616/PUBAC/F/IJH) into public access to documents held by Community institutions and bodies other than the Council and the Commission, which had already adopted their own, publicly available, rules governing public access to their documents (1).
The inquiry was concluded by the Ombudsman's Decision of 20 December 1996. This considered that failure to adopt, and to make easily available to the public, rules about public access to documents could constitute an instance of maladministration. The Decision included the following draft recommendations:

1 The institutions and bodies should adopt rules concerning public access to documents within three months;

2 The rules should apply to all documents that are not already covered by existing legal provisions allowing access or requiring confidentiality;

3 The rules should be made easily available to the public.

The detailed opinions which the institutions and bodies sent to the Ombudsman in accordance with Article 3 (6) of the Statute of the Ombudsman showed that nearly all of them had already adopted rules governing public access to their documents.
On 15 December 1997, the Ombudsman submitted a special report to the European Parliament which adopted a Resolution congratulating the Ombudsman on the initiative and special report and welcoming the action in favour of transparency(2).
The Ombudsman became aware of four bodies, including the European Police Office (Europol), which were established or which became operational after the closure of his own-initiative inquiry 616/PUBAC/F/IJH(3). In April 1999, he began a further own-initiative inquiry into public access to documents held by these bodies.

THE INQUIRY

By letter dated 30 April 1999, the Ombudsman informed Europol of the own-initiative inquiry and of the provisions of Article 41 TEU, as amended by the Treaty of Amsterdam, according to which Article 195 is one of the Articles of the EC Treaty which shall apply to the provisions relating to the areas referred to in Title VI TEU (police and judicial co-operation in criminal matters).
The Ombudsman requested information about the situation of Europol as regards public access to documents; in particular whether Europol has rules on the matter and, if so, whether the rules are easily available to the public.
Europol's opinion
Europol's opinion, signed by its Director, informed the Ombudsman of the general rules concerning the confidentiality of information processed by Europol, laid down by the Council(4) acting under Article 31 (1) of the Europol Convention(5), and of the Security Manual, foreseen by Article 6 of the above-mentioned general rules, which was adopted by Europol's Management Board on 28 January 1999.
The opinion also referred to provisions of the Europol Convention which give individuals the right of access to data relating to them stored by Europol(6) and to the efforts which Europol makes to inform the public about its activities through its website.
The opinion expressed willingness to consider the possibility for Europol to adopt general rules on public access in the near future and to make those rules publicly available. The Director stated that in order to achieve this, he would discuss the issue with the Council Presidency with a view to bringing the matter to the attention of the Europol Management Board. He undertook to inform the Ombudsman of progress before the end of 1999.

FURTHER INQUIRIES

After carefully considering Europol's opinion, the Ombudsman addressed a further letter to its Director on 24 September 1999, welcoming Europol's positive attitude towards the adoption of rules on public access to documents.
The Ombudsman pointed out that, for any modern European administration, it is important to have the confidence and the support of citizens. For Europol, such confidence is even more important in carrying out its mission to make a significant contribution to the European Union's law enforcement action against organised crime, with a particular emphasis on the criminal organisations involved. It is therefore vital that from the beginning of its activity Europol should comply fully with the principles of good administrative behaviour.
The Ombudsman noted that the very nature of police work necessarily involves handling information and documents which, in the interests of citizens, must be treated confidentially. However this fact should not prevent Europol from adopting rules on public access to documents, adapted to its own situation, as other institutions and bodies have done.
The Ombudsman also considered the timescale proposed by Europol for the adoption of rules to be reasonable, taking into account that it formally took up its activities only on 1 July 1999 (7). He therefore requested Europol to provide further information as soon as possible about its progress towards the adoption of rules before the end of 1999.
On 24 November 1999, Europol informed the Ombudsman that its Management Board agreed that rules on public access to documents should be established. The Management Board had asked Europol to prepare proposals based on the rules already established by other European Union institutions, notably the Council. There was also agreement that particular attention should be paid to ensuring the compatibility of Europol's rules with the rules of other institutions to which Europol documents may be sent.

THE DRAFT RECOMMENDATIONS

After careful consideration, the Ombudsman addressed the following draft recommendations to Europol on 13 December 1999:

1 Europol should adopt rules concerning public access to documents within three months. The rules could be based on those already adopted by the Council, including the exceptions contained therein.

2 The rules should apply to all documents that are not already covered by existing legal provisions allowing access or requiring confidentiality;

3 The rules should be made easily available to the public.

Europol was requested to send a detailed opinion within three months, in accordance with Article 3 (6) of the Statute of the Ombudsman.
On 7 March 2000, the Director of Europol addressed a letter to the Ombudsman reaffirming the commitment to ensure that appropriate rules for Europol on public access to documents are adopted. He stated that, in this respect, he fully accepted the draft recommendations. He also stated, however, that he could not guarantee the adoption of rules within three months because the Management Board was not able to reach agreement at its meeting on 22 February 2000 on the draft rules which Europol submitted to it, so necessitating further study of the issue before a final decision could be taken.
In reply, the Ombudsman requested Europol's detailed opinion by 31 May 2000. On 16 June 2000 a reminder letter was sent to Europol, establishing a new deadline of 31 July 2000 and mentioning that if no reply, or an unsatisfactory reply, was received, it would be necessary for the Ombudsman to make a Special Report to the European Parliament on the matter, in accordance with Article 3 (7) of the Statute of the Ombudsman.

EUROPOL'S DETAILED OPINION

In a detailed opinion sent on 6 July 2000, the Director of Europol informed the Ombudsman that Europol's Management Board wishes to resume discussions on the subject of public access to Europol documents once discussions on the recent proposals from the Commission have led to concrete new regulations for other European bodies.
To deal with the issue in the meantime, the Management Board has authorised the Director of Europol to deal with requests for public access to Europol documents through the application by analogy of Council Decision 93/731.
The Director also informed the Ombudsman that he has instructed his staff to deal with any requests for public access to Europol documents in accordance with the decision and to publish this on Europol's web site at http://www.europol.europa.eu, with a view to allowing the public to take note of this policy.

THE DECISION

1 The adoption of rules on public access to documents
1.1 The Ombudsman informed Europol of his draft recommendations, made in a previous own-initiative inquiry carried out under Article 195 EC, that Community institutions and bodies should adopt rules concerning public access to documents, within three months. The Ombudsman also informed Europol of the provisions of Article 41 TEU, as amended by the Treaty of Amsterdam, according to which Article 195 is one of the Articles of the EC Treaty which shall apply to the provisions relating to the areas referred to in Title VI TEU (police and judicial co-operation in criminal matters).
1.2 Europol informed the Ombudsman of the existing rules which govern the confidentiality of information processed by Europol and individuals' rights of access to data relating to them stored by Europol. Europol also accepted the principle of adopting, and making easily available to the public, rules governing public access to documents. It appeared that Europol's Management Board favoured the adoption of rules based on those adopted by other European Union institutions, notably the Council.
2 Timetable for the adoption of rules
2.1 In its opinion dated 15 July 1999, it appeared that Europol envisaged the adoption of rules on public access to documents before the end of 1999. However, further information provided by Europol on 24 November 1999 contained no definite timetable for the adoption of rules.
2.2 The principles of good administration require that decisions should be made within a reasonable time. To avoid unnecessary delay, it therefore seemed appropriate to establish a definite timetable for the adoption of rules.
3 The draft recommendations and detailed opinion
3.1 In view of the above, the European Ombudsman made the following draft recommendations to Europol:

1 Europol should adopt rules concerning public access to documents within three months. The rules could be based on those already adopted by the Council, including the exceptions contained therein.

2 The rules should apply to all documents that are not already covered by existing legal provisions allowing access or requiring confidentiality;

3 The rules should be made easily available to the public.

3.2 In its detailed opinion, Europol informed the Ombudsman that its Management Board wishes to resume discussions on the subject of public access to Europol documents once discussions on the recent proposals from the Commission have led to concrete new regulations for other European bodies. As an interim measure Europol will deal with requests for public access to Europol documents through the application by analogy of Council 93/731. The public will be informed of this through publication on Europol's web site at http://www.europol.europa.eu.
3.3 The Ombudsman considers that Europol's detailed opinion shows that it has accepted the draft recommendations and has taken satisfactory measures to implement them. The Ombudsman therefore closes the case.
Yours sincerely,
Jacob SÖDERMAN

---

(1) Council and Commission joint Code of Conduct (OJ 1993 L 340/ 41); Council Decision 93/731 of 20 December 1993 on public access to Council documents (OJ 1993 L 340/43); Commission Decision 94/90 of 8 February 1994 on public access to Commission documents (OJ 1994 L 46/58).

(2) OJ 1998 C 292/170; A4-0265/98.

(3) The other bodies covered by OI/1/99/IJH are: The Community Plant Variety Office The European Agency for Safety and Health at Work The European Central Bank.

(4) Council Act of 3 November 1998 adopting rules on the confidentiality of Europol information, 1999 OJ C 26/10.

(5) 1995 OJ C 316/1.

(6) Europol Convention, Article 19.

(7) Communication concerning the taking up of activities of Europol, 1999 OJ L 185/1.