Executive Director European Border and Coast Guard Agency (Frontex)

 

Dear Dr X,

I am writing to seek a solution to this case^[1], which is based on a complaint I received on 4 July 2024.

The complainant submitted a request for public access to documents[2] to the European Border and Coast Guard Agency (Frontex) in April 2024. Her request concerned “any correspondence on the creation of the following publications: "Activity Book" on returns for 4-11 year olds and "My guidebook on return (Child Version)"”. Frontex registered the complainant’s request under reference number PAD-2024-00201.

In May 2024, Frontex issued its initial reply to the request. It informed the complainant that it had identified 76 documents, to which no access could be granted. The complainant challenged Frontex’s decision by making a confirmatory application, which Frontex registered under reference number PAD-2024-00249. The complainant insisted that Frontex should provide her with a list of the documents identified and grant the widest access possible to them.

In June 2024, Frontex confirmed its initial position that it could not grant access to the documents. Frontex relied on several exceptions set out in Regulation 1049/2001, namely the protection of public security, privacy, commercial interests, and the internal decision-making process.[3] It refused to provide a list of documents, arguing that doing so would de facto constitute the creation of a new document, which is not an obligation under Regulation 1049/2001.

I opened an inquiry into this complaint and asked Frontex to provide my inquiry team with copies of the documents at issue. Frontex also provided its additional views on the complaint.

On the basis of the inspection of documents that was carried out, my view is that Frontex should have granted wide partial access to the 76 documents at issue.

The documents are e-mails exchanged between June 2022 and September 2023 concerning a project undertaken by Frontex to create a toolbox for children involved in return operations. The documents contain feedback of Frontex staff members or external experts on draft versions of the publications that does not appear to be sensitive throughout. The comments and suggestions made are, in their vast majority, of an editorial or technical nature. The final version of the publication is publicly available.[4] In my view, Frontex has failed to demonstrate how disclosure of the documents, in their entirety, would undermine the public interest as regards public security. It has also not convincingly explained how access to the documents might actually and specifically undermine its decision-making process.

It is also not clear how the commercial interests of the external experts, or Frontex’s ability to participate in the market, would be undermined by disclosure of the documents and I note that Frontex did not consult the external experts on the public access request. The feedback received from the external experts on draft versions of the publications is mostly of an editorial nature.  If any parts of the documents were to fall under the commercial interest exception, Frontex could easily redact them. The same argument applies to any personal data in the documents.

More generally, I take the viewthat disclosing the emails to the public could reassure citizens about the quality work and careful efforts that Frontex has put into the drafting of the toolbox for children involved in return operations.

A more detailed assessment by my inquiry team is available in an Annex to this letter.

In addition, I note that Frontex did not provide the complainant with a list of documents it identified as falling within the scope of her access request. Frontex insisted, in its additional views, that it was under no obligation to provide the complainant with such a list. In this case, Frontex considered it sufficient to give the complainant the number of identified documents, and the reasons for their non-disclosure, in order to enable her to make an informed request for review.

I have consistently taken the view that providing lists of identified documents is a matter of good administration, as it facilitates a requester’s understanding of the institution’s decision and the formulation of a request for review, if necessary. In a parallel inquiry,[5] I found that Frontex’s systematic refusal to provide lists of documents it identifies as falling within the scope of requests for public access to documents constituted maladministration and I recommended that Frontex should provide such lists. In May 2024, Frontex informed me that it would consider providing lists to applicants “where deemed necessary” and “on a case by case basis”, so as “to further enhance applicants’ ability to make an effective and informed appeal”. In this case, unfortunately, Frontex drafted its initial reply in a way which did not allow the complainant to understand the nature of the documents Frontex had identified. The confirmatory decision is equally sparing in the details it provides about the nature and content of the documents. A list of identified documents would have clearly been essential for the complainant to understand Frontex’s position. It is therefore difficult to understand why the list of documents, which was provided to my inquiry team, was not shared with the complainant in reply to her access request.

In light of the above, I would like to propose the following solution in this case:

Frontex should reconsider its position on the complainant’s request, with a view to granting the widest possible access to the documents at issue.

Frontex should provide the complainant with a list of identified documents.

I would be grateful to receive your reply to my proposal within two months, that is by 20 December 2024.

At this stage, the solution proposal and its accompanying annex are confidential. My inquiry team has, however, informed the complainant of my intention to seek a solution in this case.^[6] Please note that our usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution’s reply to it, once we have received that reply. We will also publish the solution proposal and Frontex’s reply on our website at the end of the inquiry. I would therefore ask Frontex to inform us if any information contained in the solution proposal, or in its reply, should not be shared with the complainant.^[7]

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 28/10/2024

 

Annex: Detailed assessment related to the Ombudsman’s proposal for a solution in case 1259/2024/NH

Description of the documents at issue

The 76 documents at issue are e-mails exchanged between June 2022 and September 2023 concerning a project undertaken by Frontex to create a toolbox for children involved in return operations. The toolbox consists of six documents:

1. My Guidebook on Return (Children version)

2. My Guidebook on Return (Youth version)

3. My Guidebook on Return (Unaccompanied children version)

4. Manual for parents and guardians

5. Activity book (4-11 years)

6. Manual for migration officers.

The final version of documents 1 to 5 listed above is published on the Publications Office’s website. The sixth document, “Manual for Migration Officers”, is not publicly available.

All e-mails concern the drafting of the documents (with the help of two external experts) and the feedback process by which the external experts and several Frontex staff members gave comments and/or made suggestions on the documents. There is also at least one e-mail exchange between Frontex and the Dutch Ministry of Interior.

Protection of privacy and the integrity of the individual (Article 4(1)(b) of Regulation 1049/2001)

The complainant has made it clear in the confirmatory application that she is not interested in receiving personal data. The Ombudsman considers that redacting personal data would not constitute a disproportionate administrative burden on Frontex.

The protection of the public interest as regards public security (Article 4(1)(a) first indent of Regulation 1049/2001)

After having inspected the documents, the Ombudsman is not convinced that Frontex could invoke the exception to public access, which concerns the protection of the public interest as regards public security, to refuse access to the 76 documents in their entirety. The documents include, for example, e-mail exchanges that contain feedback on the Activity Book and/or the Guidebook on Return (Children version). These documents are addressed to children between 4 and 11 years of age. The feedback and comments are editorial in nature, as they relate to aesthetic changes (altering a drawing, a colour, etc.) or to adaptations aimed at the specific target group. It is difficult to understand how the feedback provided could concern operational or sensitive information, such as the modus operandi of border guards during return operations. While some comments refer to practical examples of return operations, based on the experience of some Frontex staff members, this does not mean that their disclosure would undermine the public interest as regards the EU’s public security.

The draft versions of the publications attached to some of the e-mails deviate only slightly from the final versions, which are publically available.[8] It is therefore difficult to accept that these contain any operational or sensitive information.

The protection of commercial interests of a natural or legal person, including intellectual property (Article 4(2) first indent of Regulation 1049/2001)

Frontex argued in its confirmatory decision that the documents at issue contain detailed information including intellectual property, which would affect the Frontex Copyright Policy. Disclosure would also impede Frontex’s current and future ability to participate in the market.

It is difficult to understand how disclosure of the documents could affect Frontex’s copyright and/or its rights derived from intellectual property. The design and proprietary features of the documents have not changed significantly between the drafting phase and the final publication. Since the documents are publically available, and include the standard disclaimer related to copyright protection,[9] it is difficult to see how disclosure of the attached draft publications would undermine the protection of intellectual property.

In its additional views, Frontex further argued that the documents contain economically sensitive proprietary information, including of currently ongoing publication efforts, which, if unilaterally released, would infringe on the service-providing third party’s proprietary rights. Moreover, Frontex’s ability to participate in the market, stemming from and closely related to the principle of mutual trust between the contracting parties, would be seriously undermined by the disclosure of documents containing information particular to that undertaking and that would reveal the expertise and specific form of cooperation provided by the contractor, whose services Frontex obtained. Such disclosure would result in detrimental implications for Frontex’s position in concluding contracts for similar publications, in particular rendering more difficult the position of the Agency in future negotiations for contracts of a similar kind.

The documents at issue contain feedback received from (i) external experts contracted to help in drafting the publications at issue and (ii) Frontex staff members. Some of the comments made by the external experts, if disclosed, could reveal the expertise provided by the contractor and potentially breach the climate of trust between these experts and Frontex. However, as mentioned above, a large part of the comments and feedback given by the external experts appears to be editorial and non-substantive in nature, and thus not covered by the commercial interest exception. In any case, it seems that Frontex did not consult the relevant experts on the public access request so as to understand whether the documents’ disclosure would affect their commercial interests.

The protection of Frontex’s decision-making process (Article 4(3) of Regulation 1049/2001)

Frontex argued in the confirmatory decision that disclosure of the documents in question would seriously undermine internal decision-making processes regarding current and future activities of Frontex and the Member States. In particular, disclosing the documents would reveal negotiation positions of the stakeholders, which would erode the mutual trust among all participants.

Frontex also said that public disclosure of the requested documents would reveal contentious opinions for internal use as part of deliberations and preliminary consultations within Frontex. The respective authors of the passages, if disclosed, could be led to self-censorship.

In the additional views, Frontex said that “public disclosure of limited passages of the requested documents would reveal contentious positions of the Frontex Return Division and Communications Office as well as Frontex senior management, partially also making explicit references to the cooperation with consultants, contractors, and Member States.” Frontex added that giving access could have a detrimental impact on the ongoing discussions and planned dissemination of the publications. It listed as examples the current work of the Return Division on a publication/tool for youth focused on their emotional wellbeing, expected at the end of 2024, or journals for youth and adults including exercises focused on stress relief, expected at the beginning of 2025. The projects involve comparable, for the most part identical, stakeholders.

EU case law has consistently held that EU institutions are under a duty, in principle, to provide explanations as to how access to a document might actually and specifically undermine the interest protected.^[10] Frontex has not provided convincing explanations as to how disclosure of the internal feedback contained in some of the documents would actually and specifically undermine Frontex’s internal decision-making process.

The inspection of the documents shows that the input or feedback provided by Frontex staff members to the various drafting stages of the publications is not sensitive throughout. It mostly relates to cosmetic changes or clearer writing targeted at children. The feedback, in the Ombudsman’s view, is very standard in nature and does not differ from “normal” suggestions that an EU staff member would make to any type of communication document under revision. Frontex has not explained why its staff members, if their feedback were disclosed to the public, would “practise self-censorship” and “cease putting forward any views” in future. In any case, all personal data of Frontex staff members would be redacted and the public would not be able to know who made a specific comment.

EU case law has acknowledged that the protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents. However, it has also emphasised that the reality of such external pressure “must be established with certainty” and that “evidence must be adduced to show that there was a reasonably foreseeable risk” for the decision in question to be substantially affected by that external pressure.^[11] Frontex’s argument regarding external pressure does not meet these requirements.

The fact that Frontex is currently working on similar publications involving, for the most part, the same people, does not change that assessment.

 

[1] In accordance with Article 2(10) of the Statute of the European Ombudsman (Regulation 2021/1163 of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties) available at: https://www.ombudsman.europa.eu/en/legal-basis/statute/en.

[2] Under the rules set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[3] Set out in Article 4(1)(a), first indent, Article 4(1)(b), Article 4(2), first indent, and Article 4(3) of Regulation 1049/2001 respectively.

[4] Available at: https://op.europa.eu/en/publication-detail/-/publication/d6ea7345-9297-11ee-8aa6-01aa75ed71a1/language-en (with the exception of the “Manual for migration officers”).

[5] See my recommendation on the refusal by Frontex to provide lists of documents it identifies as falling within the scope of requests for public access to documents (case 1129/2023/OAM), available at: https://www.ombudsman.europa.eu/en/recommendation/en/182124

[6] In line with Article 2(10) of the Statute of the Ombudsman.

[7] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‚Confidential‘. Encrypted emails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.

[8] With the exception of the “Manual for migration officers”.

[9] “© European Border and Coast Guard Agency, 2023.”

[10] See Judgment of the Court of 21 July 2011, Kingdom of Sweden v European Commission and MyTravel Group plc, case C-506/08 P, paragraph 110, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-506/08

[11] Judgment of the Court of First Instance of 18 December 2008, Pablo Muñiz v Commission of the European Communities, case T‑144/05, para. 86, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-144/05.