Background to the complaint

1. On 26 July 2018, the complainant asked the European External Action Service (EEAS) for public access to all briefing material supplied (between 1 June 2013 and 26 July 2017) to the European Union’s two most recent Heads of Delegation in Tel Aviv, on the Horizon 2020 scientific research programme.

2. On 5 September 2018, the complainant asked the EEAS for public access to all briefing notes supplied to the current European Union’s Head of Delegation in Tel Aviv, for his meeting with a senior Israeli politician on 28 August 2018.

3. On 14 September 2018, the EEAS replied to both of the complainant’s requests. The EEAS stated that, as regards the first request, it did not identify any briefing note drafted for the two Heads of Delegation on the topic of Horizon 2020.

4. With reference to the second request, the EEAS clarified that the EU Delegation in Tel Aviv had informed it that no written briefing note was drawn up for the current Head of Delegation in preparation for the EU Heads of Mission meeting of 28 August 2018.

5. On 17 September 2018, the complainant asked for a review of those conclusions by way of a so-called confirmatory application to the EEAS. The EEAS confirmed that the documents requested did not exist and gave reasons to justify this conclusion.

6. The complainant was not satisfied with this reply and turned to the Ombudsman on 17 October 2018.

The inquiry

7. The Ombudsman opened an inquiry into the EEAS’ refusal to disclose the requested documents.

8. In the course of the inquiry, the Ombudsman carried out a thorough analysis of the arguments made by the parties. The Ombudsman’s inquiry team also met with EEAS’s representatives and inspected the EEAS’ file.

Arguments presented to the Ombudsman

9. The complainant claims that the EEAS failed to grant him access to (i) the briefing material supplied to the two most recent EU Heads of Delegation in Tel Aviv on the Horizon 2020 programme between 1 June 2013 and 26 July 2017, and (ii) the briefing notes supplied to the current EU Head of Delegation in Israel, for his meeting with a senior Israeli politician, on 28 August 2018.

10. The EEAS initially clarified that the term “briefing” is mainly used by the EEAS to describe documents that can be requested by a Commissioner or senior managers. According to the EEAS, it is less common to prepare such documents for Heads of Delegations, especially in the context of recurrent meetings or on subject matters already familiar to them.

11. With reference to the request for “briefing material provided to two most recent EU Heads of Delegation in Tel Aviv on the Horizon 2020 programme”, in the confirmatory reply, the EEAS clarified that the Horizon 2020 programme is a major EU programme led by the Commission where a great amount of information is already publicly available online. The EEAS considers it reasonable that a Head of Delegation can inform himself [or herself] about the Horizon 2020 Programme and has staff available in the Delegation with whom he [or she] can discuss if some points need clarification.

12. The EEAS explained to the Ombudsman’s inquiry team that that they had conducted a search for the requested briefing material in the EEAS document management database in Brussels and in the archive of the EU delegation in Tel Aviv, but did not identify any document falling within the scope of the request.

13. With reference to the request for “access to briefing provided to the EU Head of Delegation to Israel for a meeting with the senior Israeli politician on 28 August 2018” the EEAS explained that no written briefing note was drawn up for the current Head of Delegation in preparation of the meeting on 28 August 2018.

14. The EEAS further clarified that the meeting in question was not a bilateral meeting with the politician, but rather a regular meeting of EU Heads of Missions to which the politician had been invited. EU Heads of Mission meetings are meetings of all EU Member States’ Ambassadors and the relevant EU Head of Delegation. The EU Delegation usually acts as a facilitator in those meetings. Whenever a guest is invited to those meetings, the meeting would normally start with opening remarks by the guest followed by questions. They further clarified that in the context of the meetings of Heads of Missions, the EU Head of Delegation does not require any specific written briefing to be prepared. For this reason, no document existed to which access could be given.

The Ombudsman's assessment

15. In accordance with the presumption[1] of legality attaching to Union acts, where the institution concerned asserts that a particular document to which public access has been sought does not exist, there is a presumption that it does not[2].

16. The Ombudsman’s inquiry team focused on the likely existence of the requested documents and assessed the manner in which the EEAS conducted the search to identify any documents which might have been be relevant to the request.

17. In the course of the inspection meeting, the EEAS explained to the Ombudsman’s inquiry team, in a very comprehensive manner, the searches it had conducted and the reasons for concluding that it was not surprising that those searches had been unproductive. Documents identified and shown to the Ombudsman’s inquiry team clearly fell outside the scope of the request.

18. The Ombudsman recognises and commends the fact that the EEAS carried out a thorough search of the documents and has applied a very wide approach in interpreting which documents could fall in the request of public access.

Conclusion

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

There was no maladministration by the European External Action Service.

The complainant and the European External Action service will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 06/12/2018

 

[1] That is a simple presumption that the applicant may rebut in any way by relevant and consistent evidence.

[2] Order of the Court of first instance of 30 April 2001 in case T-41/00, BAT v Commission.