The complainant, an online media outlet, asked the Council of the EU for public access to the exchanges on the draft 'Digital Services Act' and the draft 'Digital Markets Act' between its legal service, its internal working parties and the European Commission. The Council identified 16 email exchanges as falling under the request but refused access. In doing so, it invoked exceptions under the EU legislation on public access to documents, arguing that disclosure could undermine the need to protect judicial proceedings and legal advice and undermine the decision-making process.

Having reviewed the documents, the Ombudsman took the view that disclosure would allow the public to participate more effectively and on an equal footing in the decision-making process, thereby enhancing the quality and legitimacy of that process. She therefore made a proposal for a solution that the Council review its position with a view to granting the widest possible public access. The Council accepted the Ombudsman’s proposal for a solution and granted wide public access to the requested documents.

The Ombudsman welcomed the Council’s positive reply to her solution proposal, but she expressed regret about the time the Council has taken to provide public access to the requested documents. She noted that, due to the passage of more than one year since the request, the documents disclosed are no longer of use for the purpose the complainant had intended, that is, to inform citizens about an ongoing legislative process.

The Ombudsman closed the inquiry, calling again on the Council to make legislative documents available at a time that will allow the public to participate effectively in the discussions.