Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background

1. A researcher drew the Ombudsman’s attention to two practices used by the European Border and Coast Guard Agency (Frontex) in dealing with requests for access to documents under the EU legislation on public access to documents (Regulation 1049/2001)[2].

2. The first practice concerns the situation when a request concerns a large amount of documents or very long documents. In such instances, Frontex tries to find a ‘fair solution’, in accordance with Regulation 1049/2001[3]. However, when doing so, Frontex decides not to apply the statutory time-limit in such cases. Regulation 1049/2001 states that the time-limit starts to run from the moment the access request is registered.[4] Frontex considers that it cannot register a request before a ‘fair solution’ has been found.

3. The second practice concerns the rule that requests for access to documents must be precise[5]. When Frontex has registered a request - for which the statutory time-limit is therefore triggered - but subsequently considers that the scope of the request is not sufficiently precise, it suspends the statutory time-limit until the requester has fully clarified the request. Regulation 1049/2001 does not mention such a possibility.

4. The Ombudsman decided to examine these issues through this own-initiative inquiry.

The inquiry

5. The Ombudsman informed Frontex that she was unaware of any legal bases for its practices[6]. She asked it to comment.

6. Frontex replied[7] that its practice initially to postpone registration of requests for large/many documents (thus effectively preventing the statutory time-limit from being triggered) is required by EU case-law, and in any case follows the logic of the provisions in Regulation 1049/2001.

7. Frontex also replied that EU case-law allows for the practice of suspending statutory time-limits when the EU institution considers that the (already registered) request is not sufficiently clear.

8. Frontex stated that these practices do not disadvantage requesters, and are overall in the interest of the good administration of requests for public access to documents.

9. Frontex’s references to case-law were not clear. The Ombudsman therefore asked[8] Frontex to provide precise references and quotes.

10. In its further reply[9], Frontex provided more detailed case-law references and quotes.

The Ombudsman's assessment leading to a recommendation

Issue of delayed registration of requests for very long/many documents

11. Frontex stated that EU case-law requires it to postpone the registration of requests whenever a ‘fair solution’ has to be sought (“As recognized in the case-law of the Court of Justice of the European Union (CJEU), an application for public access to documents can only be formally registered by the receiving institution once a mutually acceptable solution has formally been found and consented by the applicant.”).

12. Frontex did not, however, refer to case-law in which the Court made any express findings that correspond to the above statement.[10] 

13. Frontex takes the view that its practice follows the logic of the provisions in Regulation 1049/2001. It pointed out that the Regulation first states that an EU institution shall send an acknowledgement of receipt of the request, and then refers to the registration of the request.

14. This is what the Regulation states: 

“An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access (...) “.

15. The reference to two actions - sending the acknowledgement of receipt and registering the request - must have a purpose, Frontex said, part of which is to require EU institutions to seek a ‘fair solution’ before triggering the statutory time-limit by registering the request. The obligation to handle a request within the statutory time-limit should, according to Frontex, not include the efforts to find a ‘fair solution’ with the requester.

16. The Ombudsman cannot agree with this interpretation.

17. Regulation 1049/2001 requires that requests be handled promptly. The clear 15 working day time-limit helps to safeguard the fundamental right of public access to documents. 

18. There is no scope for concluding that the requester is not disadvantaged when Frontex postpones triggering the statutory time-limit. Frontex said that doing so to seek a ‘fair solution’ is a “fair and transparent solution, permitting both sides to contribute to the finding of such solution while adhering to the principle that the applicant’s rights to - eventually - institute court proceedings or to make a complaint to the European Ombudsman, are not compromised”.

19. A ‘fair solution’ can and should, however, be sought within the statutory time-limit. The Regulation requires that requests be handled promptly. A requester evidently has an interest in benefitting as early as possible from the specific time-limit set out in the Regulation. Moreover, if no fair solution is found, the statutory time-limit would never start running, thus compromising the applicant’s right to go to Court or to the Ombudsman. Frontex’s approach also risks putting pressure on the applicant to agree to a fair solution.

20. With regard to the inherent logic in Regulation 1049/2001, there is no need for the practice to be accepted in order to make sense of the time period between the acknowledgement of receipt and registration. That period is for instance a phase that may allow the institution or body to check whether the request is sufficiently precise[11]. That is a very important matter, and suffices fully to make sense of the above-mentioned time period.

21. Frontex also contends that its practice ensures “equal treatment of all already existing applications and balances the interest of the applicant for access against the workload resulting from the processing of the application, which can influence the equal treatment of all existent applications.” This appears to relate to issues of workload, leading to the assumption that the practice essentially aims to allow for the processing of requests outside the statutory time-limit. This, however, cannot be accepted in the case of a regulation that already expressly offers the EU institution or body several methods/tools for addressing situations that create a significant workload[12].

22. The Ombudsman therefore concludes that Frontex is required, once a request is sufficiently precise so as to enable Frontex to identify the document(s)[13], to register the request and, when necessary, seek a ‘fair solution’ within the statutory time-limit.

Issue of suspending statutory time-limits

23. Frontex explained that it sometimes realises that a request is unclear after it has registered the request. It considers that, when that is the case, it can suspend the time-limit in order to obtain further clarifications from the requester.

24. Frontex referred at some length to EU case-law and Ombudsman practice that emphasise the importance of handling requests only when they are clear.

25. Frontex did not, however, refer to any case-law in which the Court made express findings that correspond to its view that it may suspend the statutory time-limit. Instead, in its further reply, Frontex quotes case-law that points out that the Regulation “contains no provision expressly allowing the institution, in the absence of an equitable arrangement with the claimant, to suspend the time limits provided for in Articles 7 and 8 of that regulation (...)”

26. The issue of suspending a statutory time-limit is a serious matter. It is not foreseen in the Regulation. On the contrary. As pointed out above, the Regulation already provides mechanisms for dealing with administrative difficulties, such as extending the initial time-limit. Moreover, the time-limits are directly linked with the right of the requester to go to court or to turn to the Ombudsman. Even if the object of a request is not sufficiently precise (but the request was registered prematurely by mistake), the interest in addressing this matter cannot translate into a general principle that allows the institution or body unilaterally to suspend the time-limits. Frontex’s practice is therefore not in line with Regulation 1049/2001.

27. With regard to the issue of premature registration of requests that prove to be so imprecise that the document(s) cannot be identified, the European Commission has adopted the practice of rapidly correcting the premature registration and essentially re-starting the process once it has received the necessary clarifications.[14] The Ombudsman considers that, when an institution or body realises, within a reasonable period of time (2-3 working days), that it has mistakenly registered an imprecise request, this Commission practice is reasonable. It therefore serves as relevant practice for the handling of such situations, and can be applied by other EU institutions and bodies, including Frontex.

Recommendations

On the basis of the inquiry into this complaint, the Ombudsman finds that Frontex’s two practices constitute maladministration, that is, (a) its practice of postponing the registration of requests for public access to documents when ‘fair solutions’ are deemed necessary, and (b) its practice of suspending the statutory time-limits when it realises, after having registered a request, that the request is not sufficiently precise. She therefore makes corresponding recommendations below.

1. Frontex should cease its practice of postponing the registration of requests for public access to documents when ‘fair solutions’ are deemed necessary, and should cease its practice of suspending the statutory time-limits when it realises, after having registered a request, that the request is not sufficiently precise.

2. In cases where Frontex has registered a request for public access to documents that is not sufficiently precise to enable it to identify the documents and which therefore should not initially have been registered, Frontex should apply the European Commission’s practice of rapidly asking the requester to provide the necessary clarifications, and to activate the time-limit once such clarifications have been received. The time for contacting the requester to seek such clarifications should not exceed 2-3 working days from the date of receipt of the request. Moreover, Frontex should avoid making multiple requests for clarifications.

Frontex and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, Frontex shall send a detailed opinion by 31 August 2023.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 30/05/2023

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32001R1049) , by virtue of Article 114 (1) of the Frontex Regulation, implemented through the Frontex Management Board Decision No 25/2016 of 21 September 2016. (Frontex Regulation:

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R1896; Decision of the Frontex Management Board: https://prd.frontex.europa.eu/wp-content/uploads/mb_decision_25_2016_on_adopting_practical_arrangements_regarding_pad.pdf).  

[3] Article 6(3) of Regulation 1049/2001 provides that “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.”

[4] Article 7(1): “Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access (...)”.

[5] Article 6(1) of Regulation 1049/2001 provides that requests “shall be made (...) in a sufficiently precise manner to enable the institution to identify the document.”

[6] Letter of 15 July 2022 addressed to Frontex’s then acting executive director.

[7] Letter of 5 August 2022 from the then acting executive director.

[8] Letter of 16 September 2022.

[9] Letter of 10 October 2022 from Frontex‘s deputy executive director acting on behalf of the then acting executive director.

[10] Frontex referred to various existing and undisputed obligations and rights related to the seeking of ‘fair solutions’, which are not relevant to this case.

[11] The Regulation does not expressly refer to a time period or a phase between the two actions. It is possible that the draftspersons assumed, in 2000-2001, that a request would have been registered when the acknowledgement of receipt was being sent. There is now a consensus, however, that these are two separate actions, and that is something that is coherent with standard communication that nowadays takes place via the internet (in which ‘acknowledgements of receipts’ are mostly automatic and instant).

[12] The Regulation requires the requester to make a precise request. The Regulation expressly grants the option of seeking a ‘fair solution’, and this may even include discussions aimed at reducing the scope of the request. The Regulation expressly and in a precise manner provides for the possibility of extending the deadline in exceptional cases (essentially bringing the deadline to six weeks, 30 working days).

[13] The Regulation refers to the ability of the institution concerned to identify the document in question. It does not refer to an obligation of the requester to quote a reference number or a title of the document. The institution has an obligation to search - within reasonable limits - for the document in question in light of the content of the requester’s request. “Article 6, Applications, 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.”

[14] This implements Article 2 of its 2001/937/EC,ECSC,Euratom: Commission Decision of 5 December 2001 amending its rules of procedure (notified under document number C(2001) 3714), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32001D0937