Background to the complaint

1.  On 15 October 2019, the complainant, a researcher, requested the European Asylum Support Office (EASO) to give him public access to:

- quality feedback reports (QFRs) drawn up by EASO. QFRs provide feedback to the EASO experts responsible for conducting interviews with asylum seekers. The purpose of QFRs is to highlight good practices and/or issues related to quality;

- every complaint received by EASO from individuals, non-governmental organizations and civil society organizations concerning the operational support of EASO to the Greek and Italian asylum authorities (from January 2015 to October 2019);

- weekly Situation Reports from Greece and Italy.

2. On 7 November 2019, EASO responded to the complainant’s initial request. It denied access to the QFRs based on the need to protect the privacy and the integrity of the asylum seekers[1] and the need to protect its decision-making process[2]. It, however, granted access to a “Quality Guidance Document”, summarizing the main guidelines contained in the various QFRs. As regards the second request, EASO referred the complainant to the website of the European Ombudsman, where most complaints relating to its operational activities are publicly available. In addition, it launched an extensive search to gather complaints it received, and granted access to all the documents it found, after redacting the personal data contained therein. EASO informed the complainant that the list of complaints might not be exhaustive, since it still needed to put in place a formal complaints mechanism and complaints it had already received might not have been duly stored. As regards the third request, EASO provided partial access to the requested documents, redacting only the names of the Member States who are currently deploying experts on EASO operations.

3. On 11 November 2019, the complainant submitted a request for review to EASO, a so-called “confirmatory application”. The complainant requested EASO to review its decision on his first and second request only.

4. On 2 December 2019, EASO confirmed its initial decision.

5. Dissatisfied with EASO’s response, the complainant turned to the Ombudsman on 4 December 2019.

The inquiry

6. The Ombudsman opened an inquiry into EASO’s refusal to grant full access to the requested documents.

7. In the course of the inquiry, EASO provided the Ombudsman with a sample of the QFRs on the Ombudsman’s request. EASO also provided the Ombudsman with additional views.  

The refusal by EASO to provide access to the quality feedback reports

Arguments presented to the Ombudsman

8. The complainant does not contest EASO’s argumentation that the QFRs contain personal data relating to the asylum interviews. However, since the reports are not a literal transcript of the asylum interviews, he considers that the personal data could easily be redacted, thus allowing increased partial access (to the remaining parts of the reports).

9. EASO argues that, although the excerpts from the asylum interviews in the QFRs contain no names, the nature of the information refers to particular situations where only a few individuals were involved. The redaction of names is thus insufficient, as the persons might still be identifiable from the facts described in these excerpts.

10. Moreover, EASO claims that under the Asylum Procedure Directive, “a personal interview shall take placed under conditions, which ensure appropriate confidentiality”[3]. No information should be divulged to a third party without the applicant’s express consent. EASO argues there is a real risk of undermining the trust of the applicants in the Greek asylum procedure if excerpts from the interview reports would become public. Applicants should be able to give a complete and truthful account of the facts, without fear of persecution or serious harm.

11. In addition, since EASO acts on behalf of the national competent authorities, it contends that it is bound by the confidentiality principle imposed on Member States.[4] This principle of confidentiality of the asylum procedure is furthermore set out in EASO’s practical guides, which were developed by experts from different Member States reflecting common practices and standards of asylum procedures within the EU.[5]

12. Given the high number of excerpts of personal asylum interviews in the QFRs, EASO considers it a disproportionate administrative burden to redact all the QFRs. In any case, its decision not to disclose the QFRs relates not only to excerpts of the asylum interviews, but also to the reports as a whole.

13. EASO also contends that QFRs include opinions for internal use only (within the context of quality control procedures). Releasing such opinions could undermine the decision-making process of the asylum procedure.[6]

14. However, in an effort to improve transparency and openness, EASO disclosed to the complainant a “Quality Guidance Note”, merging the main principles and guidance repeated throughout the different QFRs into one document, without citing the asylum interviews.

The Ombudsman's assessment

15. The Ombudsman assessed the QFR samples provided to her by EASO.

16. The Ombudsman notes that the reports largely consist of excerpts from asylum interviews conducted by EASO experts in the framework of EASO’s operational support. The reports assess both the answers provided by the asylum seeker, and the interview techniques / questions used by the interviewer, in order to provide guidance to EASO experts involved in the asylum procedure. The Ombudsman notes that, although anonymised, the interview excerpts mentioned are highly sensitive and refer to time specific, location specific and context specific situations.

17. Personal data means any information relating to an identified or identifiable natural person.[7] The Ombudsman acknowledges that if personal data has been rendered anonymous, so that the individual is not or no longer identifiable, it can no longer be considered ‘personal data’. However, if anonymised personal data can still be linked to an identifiable natural person, it should be regarded as ‘personal data’ of that person.[8]

18. Having reviewed the documents, the Ombudsman considers that the information contained in the QFRs relating to the asylum applicants is of such a nature that it could allow asylum applicants to be identified. Therefore, the information should be considered ‘personal data’.

19. Any information which constitutes personal data can only be released if the person seeking access demonstrates that there is a necessity in the public interest served by such access. If this test is met, access should still be denied if releasing the information would underline the legitimate interests of the persons concerned.

20. In the present case, it can be understood that a necessity exists for this ‘personal data’ to be provided to the complainant. This necessity is that any problems with the asylum process are identified and addressed. This is a necessity ‘in the public interest’.

21.  However, the Ombudsman notes that the disclosure of the personal data would undermine the legitimate interests of the asylum applicants. Providing asylum seekers with a safe environment to set out their background story is one of the cornerstones of a well-functioning asylum procedure. The Ombudsman therefore acknowledges the importance of the principle of confidentiality in asylum interviews. Releasing any information provided by applicants in the context of the asylum interview can put them in danger.  

22. The Ombudsman thus considers the public interest to be best served by not releasing the documents.

23. The Ombudsman therefore finds that EASO was correct in refusing access to the personal data, in order to protect the privacy and the integrity of the asylum seekers.

24. As regards information not provided by the applicants, the Ombudsman notes that the QFRs contain detailed feedback and opinions about how asylum interviews are to be conducted, including practical examples of interview techniques, methods and pitfalls in asylum interviews (both from the side of the applicant and the interviewer). For example, it is explained why a reply by an asylum applicant should not be deemed credible.

25. The Ombudsman acknowledges that disclosing this information could undermine the effectiveness of the asylum procedure, namely the interview stage of this procedure.  

26. In light of the above, the Ombudsman considers that EASO was justified in refusing access to the QFRs.

27. The Ombudsman however welcomes the release of the “Quality Guidance Document” by EASO. Having compared the non-disclosed QFRs and the disclosed guidance document, the Ombudsman finds that the main guiding principles of quality of interviews are contained in the guidance document. By releasing this document, EASO struck a fair balance between protecting the personal data, confidentiality of interviews and the decision-making process on one side, and ensuring appropriate transparency of the EASO asylum procedure on the other.

The failure by EASO properly to register and grant access to complaints it received

Arguments presented to the Ombudsman

28. The complainant considers that, even though EASO is not required to implement a complaints mechanism, it is still good administrative practice to ensure that complaints are duly registered and filed. He emphasizes that he wishes to get access to all complaints received by EASO. He therefore takes issue with the fact that the list of complaints is not exhaustive.

29. EASO explains that a complaints mechanism is still being put in place. It argues that it was not able to do so in the past due to the lack of a legal basis for the processing of personal data under the Regulation founding EASO[9]. The deployment of a complaints mechanism is foreseen under the future Regulation for establishing the European Union Agency for Asylum (EUAA).[10]

30. Since a formal complaints mechanism is not in place, EASO does not have a standard procedure in place for the registration and storage of complaints it receives. Consequently, EASO contends that, hypothetically, it could be possible that not all complaints received in the previous years were duly stored.

31. Nonetheless, EASO launched an extensive effort to identify the complaints it received. EASO provided access to all complaints it could identify (after redacting the personal data contained therein).

The Ombudsman's assessment

32. The Ombudsman notes that the complainant wishes to have access to all complaints received by EASO.

33. The Ombudsman agrees with the complainant that it is problematic that EASO cannot guarantee that all the complaints it received could be found. She notes that she suggested to EASO, in a previous case, “to follow up on its commitment to set up a complaint mechanism and do so as a matter of priority”.[11]

34. In reply to the Ombudsman’s suggestion for improvement in that case[12], EASO affirmed that it was in the process of establishing a computerised complaints mechanism (it was at the time conducting a feasibility study). The Ombudsman welcomed EASO's positive response and the steps it had taken to implement her suggestion for improvement.

35. Once such a system is in place, complaints dealt with through that system will be easily identified.

36. The Ombudsman notes that, in this context, EASO did conduct an extensive search of its records in an attempt to identify those complaints that it might have and provided partial access to those that it found.

37. Therefore, with due regard to the need to improve the system, the Ombudsman finds nothing to suggest that EASO acted with maladministration in its attempts to identify and grant access to complaints it received on its operational support activities in Greece and Italy between 2015 and 2019.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Asylum Support Office.

The complainant and EASO will be informed of this decision.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 23/07/2020

 

 

[1] In accordance with Article 4(1)(b) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049

[2] In accordance with Article 4(3), second indent, of Regulation 1049/2001.

[3] Article 15(2) of the Directive 2013/32/EU on common procedures for granting and withdrawing international protection, available at: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013L0032.

[4] Article 48 of Directive 2013/32/EU.

[5] The guidelines are available at the following link: https://easo.europa.eu/practical-tools.

[6] Article 4(3), second indent, of Regulation 1049/2001.

[7] Article 3(1) of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[8] Judgment of the General Court (First Chamber) of 27 November 2018, VG v European Commission, T‑314/16 and T‑435/16, paragraph 74: http://curia.europa.eu/juris/document/document.jsf?text=anonymised&docid=208102&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5615506#ctx1

[9] Regulation 439/2010 establishing a European Asylum Support Office, available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:132:0011:0028:EN:PDF <.

[10] The European presented seven legislative proposals on 4 May and 13 July 2016 regarding a Regulation on the European Union Agency for Asylum and repealing Regulation 439/2010.

[11]  Decision of the European Ombudsman in case 1139/2018/MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, available at: https://www.ombudsman.europa.eu/en/decision/en/119726.

[12] EASO’s full reply is available at the following link: https://www.ombudsman.europa.eu/en/correspondence/en/125885.