The background to the complaint

1. On 3 March 2011, the complainant, a Slovenian journalist, sent an e-mail to the Commission's representation in Ljubljana ('the Representation') and requested a copy of a document drafted at the end of 2010, which contained the Commission's evaluation/audit of the Slovenian e-health project ('the requested document').

2. On 10 March 2011, the Representation replied that the requested document constituted a draft of an audit report, that the audit was ongoing, and that it might involve possible correctional measures. According to the Representation, the document was covered by the exception in Article 4(2) 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') concerning the protection of the purpose of inspections, investigations and audits.

3. On 8 July 2011, the complainant sent an e-mail to the Representation and queried if the document in question was accessible. This e-mail continued the thread of e-mail exchanges of 3 and 10 March 2011.

4. On 21 July 2011, the complainant turned to Commission's Directorate-General for Employment, Social Affairs and Inclusion (DG EMPL). He requested a copy of "a document regarding revision/evaluation of the e-health project in Slovenia ... made at the end of 2010".

5. On 2 August 2011, DG EMPL acknowledged receipt of the complainant's request for access dated 21 July 2011 and informed him that he would receive a reply within 15 working days.

6. On 5 August 2011, the complainant informed DG EMPL that, whilst his e-mails remained "strictly unanswered", he wished to know what had happened to his e-mail of 21 July 2011. He assumed that the 15-day period started to run on that date. He added that his first request was sent to the Representation on 8 July 2011. The Representation did not reply for a week and provided him with DG EMPL's e-mail address only after a telephone call. He wanted to complain and asked for information on where to do so.

7. On 8 August 2011, DG EMPL replied that his request for access had been registered and that he would receive a reply within 15 working days, as provided for in Article 7(1) of Regulation 1049/2001. It explained that the Commission's staff was reduced during the summer holidays and that this had led to some delay in handling his e-mail of 21 July 2011. The Commission informed the complainant that he could complain to the European Ombudsman if he was not satisfied with the handling of his request.

8. That same day, the complainant replied that it was irrelevant when a request was sent because its registration could be delayed. In his case, the delay was of two weeks. He queried why DG EMPL's colleagues at the Representation had not done anything since 8 July 2011. He added that he was not satisfied with the Commission's approach and intended to lodge a complaint. It was unacceptable to wait for a document for more than a month.

9. On 11 August 2011, the complainant wrote to the Representation. He requested that he be provided with a confirmation setting out when, if at all, the Representation's staff had transferred his request for access to documents dated 8 July 2011 to the Commission because his request for access had apparently been lost twice, namely, on 8 and 21 July 2011.

12. On 17 August 2011, the Representation informed the complainant that all his requests for access to documents had immediately been transferred to the Commission's competent service. In its reply of 15 July 2011 to his request of 8 July 2011, the Representation explained to him that a request had to be made in writing to the competent service of the Commission, which in this case was DG EMPL[2]. The complainant did so on 21 July 2011 without putting the Representation in copy. It was therefore only after his telephone call of 29 July 2011 that the Representation could intervene, point out that the complainant was waiting for a reply and ask for his request to be dealt with as a matter of priority. His application had unfortunately indeed been overlooked. At the request of DG EMPL, the Representation asked the complainant, on 2 August 2011, to send it his request again. This led to his request being registered by DG EMPL. The Representation had, with the aim of helping the complainant, reminded DG EMPL of his request a number of times, also after his telephone call on 11 August 2011. It assured the complainant that he ought to receive a reply within 15 working days, but added that there was not much more that it could do substantively.

13. On 24 August 2011, DG EMPL replied to the complainant's request for access sent on 21 July 2011 and registered on 2 August 2011. It apologised for the delay in registering it, which was due to a reduction in staff numbers during the summer holidays. It suggested that in future, the complainant use an online form available on a dedicated website, which would ensure a swift follow-up. The complainant sought access to documents related to the e-health project and to the audit mission which DG EMPL carried out in Slovenia. The audit mission was outlined in an audit report, which was itself based on a number of documents referred to by the Commission. DG EMPL added that no deficiency or irregularities were identified regarding the e-health project. Nevertheless, access could not be granted pursuant to the third indent of Article 4(2) of Regulation 1049/2001 (protection of the purpose of inspections, investigations and audits) and Article 4(1)(b) (protection of personal data) in order to protect the identity of individuals mentioned in the documents. No partial access could be granted to the documents in question and the complainant had not demonstrated that there was an overriding public interest in disclosure. The complainant was informed that he could ask for a review of that decision by the Commission's Secretary-General.

The subject matter of the inquiry

14. The Ombudsman opened an inquiry into the following allegation.

Allegation:

The Commission failed to deal with the complainant's request(s) for access to documents promptly and with due regard to the relevant deadlines.

In addition, in the letter opening the inquiry, the Ombudsman invited the Commission to address the following questions:

"1. With regard to the application of 8 July 2011, the Commission's Representation in Ljubljana ('the Representation') put forward in its letter of 17 August 2011 that all of the complainant's requests for access to documents were always immediately transferred to the Commission's competent service. However, in the same correspondence, the Representation stated that, in its reply to the application of 8 July 2011, it informed the complainant that he had to submit an application directly to DG EMPL. Could the Commission please specify whether, and if so when, its Representation forwarded the request of 8 July 2011 to the competent service?

2. In its reply of 24 August 2011, the Commission put forward that the complainant's request for access had been registered belatedly, that is, on 2 August 2011, due to a reduction in staff over the summer holidays. However, this account is at first sight inconsistent with the explanations provided by the Representation in its letter of 17 August 2011, which suggested that the request had been overlooked and that, at the request of the Commission's services, the complainant had to re-submit it before it could be registered. Could the Commission therefore please explain the factual background which resulted in the complainant's request of 21 July 2011 only being registered on 2 August 2011?"

15. The complainant also claimed that the Commission should provide him with the documents he had requested. However, the Ombudsman informed him that that claim was inadmissible pursuant to Article 2(4) of his Statute because he had not made a confirmatory application as provided for in Regulation 1049/2001 in response to the Commission's refusal to provide him with the requested document.

16. Furthermore, given that the complainant considered that the deadline of 15 working days laid down in Regulation 1049/2001 for a decision on a request for access was excessive, the Ombudsman informed him that he is not competent to examine arguments concerning the merits of EU legislation and advised him to submit a petition to the European Parliament's Committee on Petitions as regards this issue.

The inquiry

17. On 30 January 2012, the Ombudsman opened an inquiry.

18. On 25 April 2012, the Commission provided its opinion on the complaint.

19. On 26 April 2012, the Ombudsman forwarded the Commission's opinion to the complainant and invited him to submit his observations thereon.

20. On 1 August 2012, given that no observations had been received from the complainant, the Ombudsman's services telephoned him to inquire whether he still intended to submit his observations. The complainant declared that he no longer wished to pursue his case and subsequently confirmed his position by e-mail.

The Ombudsman's analysis and conclusions

A. Allegation of failure to deal with the complainant's request(s) for access to documents promptly and with due regard to the relevant deadlines

Arguments presented to the Ombudsman

21. In his complaint, the complainant pointed out that he sent a request for access to documents on 8 July 2011. He had then been provided with the e-mail address of DG EMPL, but the request for access which he addressed to DG EMPL on 21 July 2011 remained unanswered. Following a number of telephone calls, his request was registered on 2 August 2011 and he was informed that he would have to wait another 15 days for a reply. As a journalist, he strongly protested against such practice because being obliged to wait for more than a month to access a document would make his work impossible, particularly since this also entailed a number of telephone and e-mail exchanges. The complainant submitted that he had been waiting for the requested documents since 8 July 2011. He claimed that he should be provided with the requested documents promptly and that the Commission should stick to the deadlines.

22. In its opinion, the Commission pointed out that the complainant had submitted a request for access to DG EMPL on 21 July 2011. His request was formally registered by DG EMPL on 2 August 2011 and the Commission refused access by a decision of 23 August 2011.

23. On the Ombudsman's first question, the Commission replied that the Representation informed DG EMPL about the complainant's request for access on 11 July 2011.

24. As regards the Ombudsman's second question, the Commission put forward that the complainant sent his request to a functional mailbox of DG EMPL on 21 July 2011, which was a public holiday. The request was registered on 2 August 2011. The legal deadline for handling an initial application under Regulation 1049/2011, that is, 15 working days, was "technically respected" because the request was registered on 2 August 2011 and the formal Commission decision was adopted 14 working days later, on 23 August 2011. The request was registered with a delay of 8 working days (between 21 July 2011 and 2 August 2011) because of the reduced number of staff members in the responsible service during the holiday season. The Commission apologised to the complainant for this delay and explained the reasons for it.

25. In his observations, the complainant informed the Ombudsman that he no longer had an interest in pursuing the case.

The Ombudsman's assessment

26. Given that the complainant informed the Ombudsman that he wished to drop his complaint, the Ombudsman concludes that there are no grounds for further inquiries into this case. Therefore, he closes his inquiry into this complaint. Nevertheless, the Ombudsman has consistently taken the view that, where he identifies opportunities for the EU administration to improve its services for citizens in the future, he may make a further remark to that effect.

27. In the present case, the Ombudsman considers that the following points in the present case need to be highlighted:

(a) The Commission registered the complainant's request for access of 21 July 2011 only on 2 August 2011. Regulation 1049/2001 stipulates that requests for access shall be handled promptly. The Ombudsman considers that such requests should normally be registered the following working day, unless there are exceptional circumstances[3]. Whilst the Ombudsman understands that it can be difficult to ensure the smooth running of administrative services during holiday periods, he is not convinced that a reduction in staff due to a holiday period constitutes such an exceptional circumstance. As set out in the next point, this is all the more regrettable when one considers that the complainant had already submitted an identical request for access on 8 July 2011.

(b) The complainant submitted a request for access to documents to the Representation on 8 July 2011. It is puzzling that the Commission (i) apparently never registered the complainant's request of 8 July 2011[4] and (ii) instead advised the complainant to use a specific functional e-mail address even though his request for access to documents appears to have met the requirements of Article 6(1) of Regulation 1049/2001[5]. It may be useful to add that it constitutes good administrative practice for administrative bodies that are not competent to deal with a request to forward such request to the competent body[6]. This logically implies that the competent body ought to then deal with the matter.

(c) Finally, the Ombudsman notes that the complainant effectively lodged the first request for access to documents on 7 March 2011. That request was rejected by the Representation on 10 March 2011. However, in its reply refusing access to the document, the Representation did not inform the complainant of his right to submit a confirmatory application pursuant to Article 8 of Regulation 1049/2001.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further inquiries into the present complaint.

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

Further remarks

Regulation 1049/2001 requires that requests for access to documents be handled promptly. Whilst it can be difficult to ensure the smooth running of administrative services during holiday periods, it would be useful if the Commission could do its utmost to ensure the rapid registration of requests for access even during such periods.

The Commission could consider taking steps to ensure that when requests for access are made they are, in fact, properly registered as such. Furthermore, the Commission would act in a more citizen-friendly manner if it were to register requests for access when they are submitted in a form that meets the requirements of Regulation 1049/2001, rather than instruct applicants to re-submit these requests to a specific mailbox.

The Commission would be well advised to ensure that when its services reject an initial application for access to documents, the applicant is properly informed about his or her right to make a confirmatory application.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 12 October 2012

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[1] OJ 2001 L 145, p. 43.

[2] Neither the complainant nor the Commission have provided the Ombudsman with a copy of the Representation's reply of 15 July 2011.

[3] See, in particular, a further remark to that effect that the Ombudsman made in his decision on Case 3697/2006/PB. See also the Ombudsman's conclusions in his decision on Case 1190/2008/DK.

[4] The Commission's reply of 23 August 2011 referred only to the request of 21 July 2011.

[5] "Applications for access to a document shall be made in any written form, including electronic form, [emphasis added] 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."

[6] See the European Code of Good Administrative Behaviour (the Code), Article 15(1):

"1. If a letter or a complaint to the Institution is addressed or transmitted to a Directorate General, Directorate or Unit which has no competence to deal with it, its services shall ensure that the file is transferred without delay to the competent service of the Institution." The full text of the Code is available at: http://www.ombudsman.europa.eu/en/resources/code.faces#hl19