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

Background to the complaint

1. When replying to requests under the EU legislation on public access to documents (Regulation 1049/2001),[2] the European Border and Coast Guard Agency (Frontex) is currently not providing requesters with a list of documents it identifies as falling within the scope of an access to documents request.

2. The complainant, a researcher, contested Frontex’s practice. In two requests for public access to documents he made, the complainant specifically asked Frontex to list the identified documents. Referring to EU case law, specifically the Campbell judgment,[3] the complainant said that EU institutions have a duty to provide such a list. By refusing to do so, Frontex undermines the right of requesters to submit effective and informed requests for review.

3. In reply to both access requests, Frontex refused to provide a list of documents, arguing that providing a list would constitute the creation of a new document, which is not required under Regulation 1049/2001.

The inquiry

4. The Ombudsman opened an inquiry and asked Frontex to reply to the complaint.[4] She also informed Frontex of her view that, in the context of public access to documents requests, providing requesters with a list of identified documents is a matter of good administration.

5. In the course of the inquiry, the Ombudsman received the reply of Frontex[5] and, subsequently, the comments of the complainant on Frontex’s reply.

Arguments presented to the Ombudsman

6. In its reply to the Ombudsman, Frontex stated that Regulation 1049/2001[6] obliges EU institutions to i) provide a written reply to the applicant, ii) state the reasons for non-disclosure,[7] and iii) inform the applicant of their right to submit a confirmatory application or on the available legal remedies.

7. Regarding its practice of processing public access requests, Frontex clarified that it always indicates in its replies the number of identified documents. It also gives detailed reasons on how disclosure of the identified documents would undermine the interests protected under one or several of the exceptions provided for in Article 4 of Regulation 1049/2001. Frontex thus took the view that its initial decisions contain sufficient information for requesters to understand why (partial) access is refused. Frontex emphasised that it needs to ensure that it does not harm the interests protected by revealing too much of the documents’ content in its replies to access requests.

8. Frontex further maintained that there is no general obligation to provide lists of identified documents. Frontex’s interpretation of the Campbell judgment is that institutions are obliged to provide such lists only when they apply a general presumption of confidentiality. In such cases, the institutions are not required to conduct an individual examination of the documents. Providing a list of documents would therefore replace this function (of stating reasons for non-disclosure) and may enable the applicant to make an informed and effective request for review. If an institution has not relied on a general presumption, but has made an individual assessment of the documents and thus has provided detailed reasons as to why disclosure of the relevant documents undermines the protected interest(s), Frontex considered that there is no obligation to provide a list of identified documents.

9. Frontex further argued that providing lists of documents would constitute the creation of a new document. As long as such a list does not form part of a written response to a request, which could be the case for example where a general presumption applies, a separate document would need to be created. The right of public access applies only to existing documents and, according to EU case-law, an EU institution is not obliged to create a new document.[8]

10. The complainant considered that although a general presumption of confidentiality was relied on in the confirmatory decision that was at stake in the Campbell judgment, this does not mean that the provision of a list of documents is an obligation only in that scenario. Rather, the judgment indicates that even in those cases where a general presumption is applied, and an individual assessment of the identified documents is not required, the EU institution concerned should still provide a list of such documents.

11. The complainant further said that, from his experience, other EU institutions provide a list of identified documents when replying to requests for public access to documents. He mentioned that the European Commission’s internal guidance on public access to documents refers to the Campbell judgment as imposing a general obligation on the EU institutions to provide requesters with a list of identified documents.

12. The complainant also argued that applicants are not able to properly contest decisions to refuse disclosure in the absence of a list of identified documents. A public access request may cover different categories of documents over long periods. Without a list of identified documents, a requester cannot understand their nature. It also makes it difficult to understand which exception was applied to which specific document. In practice, a requester’s ability to formulate a confirmatory application is impaired without this information. To illustrate this, the complainant provided two further examples of Frontex’s replies to access requests, in which he considered the reasons provided for non-disclosure of several documents to be very generic.

13. The complainant said that more generally, in its replies, Frontex uses generic templates of justifications for non-disclosure, instead of providing a case-by-case assessment of applicable justifications for each individual document. These justifications appear entirely divorced from the specific context and nature of the documents.

14. Finally, the complainant considered the interpretation of Frontex that providing a list would entail creating a new document contrary to the interpretation and practice of all other EU institutions that draw up such a list as part of their replies to access requests.

The Ombudsman's assessment leading to a recommendation

15. This case concerns Frontex’s refusal to provide those seeking public access with lists of documents identified by the agency as falling within the scope of their requests. To support its position, Frontex relies on the Campbell judgment. Frontex also argues that there is no obligation under Regulation 1049/2001 to provide lists of identified documents.

16. The Ombudsman cannot agree with Frontex’s interpretation of the Campbell judgment. The Court held in this judgment that the application of a general presumption does not exempt an EU institution from its duty to identify the documents falling within the scope of a request and from providing the requester with the list of those documents.[9] In view of this, the Ombudsman does not consider this duty to be limited to situations in which the institution concerned applies a general presumption.

17. In any case, the Ombudsman has consistently taken the view that providing lists of identified documents is a matter of good administration.[10] Indeed, providing such lists should give requesters a basic understanding of the identified documents, such as their title, date, their nature and from where they originate. In turn, this facilitates a requester’s understanding of the institution’s decision and the formulation of a request for review, if necessary. Furthermore, individuals may use such lists to narrow down their requests for review, and make a confirmatory application only for certain documents. This can also simplify an institution’s processing of requests for review.

18. The Ombudsman considers that documents should, at least, be listed with a title, a date and - when available - a record keeping reference number. Where many documents are at stake and their disclosure is refused, the institution should further mention which exception was applied to which document.

19. The Ombudsman notes, in this context, that when processing an access request, the institution concerned has to first identify the documents falling within its scope. If it decides to refuse (full) access, the institution has to show, for each identified document, how its disclosure would undermine one or several of the public and private interests protected by Article 4 of Regulation 1049/2001. In practice, this means that a list of documents should already be available within the EU institution as a consequence of the internal handling of the access request. Providing requesters with the list should therefore not entail an additional administrative burden.

20. In those limited instances where a list cannot be provided to the requester, because the very disclosure of the list would undermine the interest(s) to be protected, it is important that the documents are described in such a way as to enable the requester to understand the number and nature of the documents at stake.

21. In practice, many EU institutions, bodies, offices and agencies are already providing lists of identified documents. The Ombudsman receives a high number of complaints concerning public access to documents and thus sees initial and confirmatory replies from a variety of EU institutions. Most replies contain lists of identified documents, either as part of the reply itself or as an annex to it.

22. Having reviewed replies by Frontex in the context of complaints related to public access to documents, at initial and at confirmatory stage, the Ombudsman understands the complainant’s concerns, namely that the replies can be difficult to follow in the absence of a list of documents identified. This is particularly relevant where the documents are considered sensitive and not too many details about their content can be disclosed. Even if Frontex argues that it provides the number of documents and detailed reasons when access is refused, in practice it can be very difficult for requesters to understand which reasoning, and thus exception, was applied to which (part of) document.[11]

23. In light of the above, the Ombudsman finds that the systematic refusal by Frontex to provide lists of documents it identifies as falling within the scope of requests for public access to documents constitutes maladministration. She therefore makes a corresponding recommendation below and trusts that Frontex will seek this opportunity to adapt its practice.

Recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following recommendation to Frontex:

Frontex should provide lists of documents it identifies as falling within the scope of requests for public access to documents, unless the very disclosure of a list undermines the interest(s) to be protected.

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 16 May 2024.

Emily O'Reilly
European Ombudsman

Strasbourg, 15/02/2024

 

[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: 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] The complainant referred to the judgment of the General Court of 28 May 2020, Campbell v European Commission, T-701/18: https://curia.europa.eu/juris/document/document.jsf?text=&docid=226879&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=558889.

[4] The letter of the European Ombudsman to Frontex is available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/172709.

[5] The reply of Frontex to the complaint is available at: https://www.ombudsman.europa.eu/doc/correspondence/181530.

[6] Articles 7(1) and 8(1) of Regulation 1049/2001.

[7] In this context, Frontex refers to established case-law requiring EU institutions to explain how access would specifically and actually undermine an interest protected under an exception, and that the risk of undermining must be reasonably foreseeable and not purely hypothetical. Judgment of the General Court of 27 November 2019, Izuzquiza and Semsrott v Frontex, T-31/18, available at: https://curia.europa.eu/juris/liste.jsf?num=T-31/18.

[8] Frontex referred to Judgment of 2 October 2014, Strack v Commission, C-127 /13, para 38: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-127/13%20P and Judgment of 11 January 2017, Typke v Commission, C-491 /15 P, paras 31 and 46: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-491/15.

[9] See in particular para 44 of the Campbell judgment: “More generally, although the application of a general presumption of confidentiality permits the institution to dispense with carrying out an individual examination of each document, it cannot, however, exempt it from indicating to the applicant which documents it identified as being part of a file covered by that presumption and from providing him or her with the list of those documents.”

[10] See the Ombudsman’s decision in case 1278/2022/JK, point 34, available at: https://www.ombudsman.europa.eu/en/decision/en/171366.

[11] See by way of example case 344/2023/PVV ongoing at the time of this recommendation.