Strasbourg, 16 November 2007

Dear Mr T.,

On 29 June 2005, you made a complaint to the European Ombudsman concerning the handling of a request for access to documents that you had submitted to the European Anti-Fraud Office ("OLAF").

On 8 July 2005, I forwarded the complaint to the Director-General of OLAF, asking for an opinion to be submitted by 30 September 2005.

In an e-mail sent on 22 July 2005, you informed me that you also wished to complain about the handling of another request for access to documents that you had submitted to OLAF.

On 30 August 2005, I informed OLAF of your further allegation. Given that the object of the two requests for access was similar and that OLAF had rejected these requests on what appeared to be identical grounds, I considered that the most sensible way to proceed was to include the grievance raised in the e-mail of 22 July 2005 in the scope of the present inquiry. I therefore asked OLAF to address your further allegation in its opinion on the present complaint. In order to allow OLAF sufficient time to do so, I extended the deadline for submitting the opinion until 31 October 2005.

OLAF sent its opinion on 28 October 2005 (English original) and 28 November 2005 (German translation). I forwarded it to you on 11 November 2005 (English original) and 29 November 2005 (German translation) with an invitation to make observations, which you sent on 21 November 2005.

On 13 December 2005, I asked OLAF to provide further information concerning this case. You were informed accordingly the same day. OLAF sent its reply on 31 January 2006.

Given that OLAF's letter only replied to two of the three questions I had put to it, I asked it, by letter of 10 February 2006, to provide a reply to the remaining question. You were informed accordingly the same day.

On 2 March 2006, OLAF replied to my letter of 10 February 2006. I forwarded this reply to you on 15 March 2006 for your observations, which you sent on 10 April 2006.

On 11 July 2006, my services telephoned you in order to ascertain which documents you had had in mind when making your request to OLAF.

On 12 July 2006, I asked both OLAF and the European Commission to provide further information concerning your case. In my letters, I requested this information to be provided by 15 September 2006. You were informed accordingly the same day.

By letter of 13 July 2006, the Commission asked for an extension of time for its reply until 31 October 2006. In my reply of 17 July 2006, I informed the Commission that I considered an extension until 15 October 2006 to be sufficient.

In an e-mail sent on 17 July 2006, you informed me that you had received my letter informing you of the further inquiries.

On 15 September 2006, OLAF replied to my request for further information. The Commission's reply was received on 19 October 2006.

On 23 October 2006, I forwarded the English original versions of these replies to you. The translations into German were forwarded to you on 30 (OLAF) and 31 October (Commission) 2006.

On 1 November 2006, you submitted observations on these replies to me.

On 14 December 2006, I submitted a proposal for a friendly solution to OLAF. You were informed accordingly the same day.

OLAF replied to this proposal on 30 January 2007. Upon having examined this reply, it appeared to me that OLAF might have overlooked certain passages of my proposal. On 31 January 2007, I therefore invited OLAF to submit any further comments it might wish to make. You were informed accordingly the same day.

On 28 February 2007, OLAF submitted further comments to me. I forwarded these comments and OLAF's reply to my proposal for a friendly solution to you on 8 March 2007 for your observations, which you sent on 20 March 2007.

On 15 May 2007, I addressed a draft recommendation to OLAF. You were informed accordingly the same day.

OLAF sent its detailed opinion on 24 July 2007 (English original) and 7 August 2007 (German translation). I forwarded it to you on 29 August 2007, with an invitation to make observations by 30 September 2007 at the latest.

No such observations were received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Background

On 30 March 2005, the complainant (a German journalist) submitted a request for access to documents to the Secretariat-General of the European Commission. This request was based on 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(1) ("Regulation 1049/2001") . In his request, he asked for access to "a complete list of the correspondence that OLAF had had with services of the German Federal Government and of governments of the German Länder in 2003 and 2004". The complainant added that this list should comprise the date, the names of the sender and the addressee and the subject of the letters.

On 14 April 2005, Mr P. (a director of OLAF) informed the complainant that it was not possible to give him the document requested since such a document did not exist.

On the same day, and in reply to this message, the complainant submitted what he referred to as a confirmatory application. The complainant argued that Mr P.'s statement appeared be in contradiction with Article 11 of Regulation 1049/2001. In the complainant's view, this provision stipulated that "all" documents should be listed in a publicly available register. The complainant pointed out that his request aimed at obtaining an excerpt from this register. He noted that the Commission and other Community bodies had, in the past, provided him with such excerpts or produced them at his request. The complainant, therefore, renewed his request for access. He pointed out that, alternatively, he would also be content with receiving a complete list of all of OLAF's correspondence with third parties in 2003 and 2004, as well as of all other documents drawn up by OLAF.

In his reply of 11 May 2005, Mr P. submitted that Article 11 of Regulation 1049/2001 did not oblige the institutions concerned to include all documents in the register. Mr P. noted that the Commission had established a register as regards its essential documents. A reference to the website of the Commission's register was provided. Mr P. further pointed out that there was no list of OLAF's correspondence as requested by the complainant and that it would be a disproportionate burden on OLAF to produce one. He concluded by saying that, given that this had already been the second query made by the complainant concerning the same issue, any further correspondence would, according to point 4 of the Commission's Code of Conduct(2) ("the Commission's Code"), be regarded as repetitive and would therefore not be replied to.

On 20 May 2005, the complainant submitted a complaint addressed to the Commission's Secretary-General and to OLAF's Director-General, in which he reiterated his views as to the substance of the matter. The complainant acknowledged that the Commission's register did not constitute a complete listing of all documents. He added, however, that the Commission appeared to be conscious of the fact that its register did not comply with the requirements set out in Article 11 of Regulation 1049/2001 and that he had always been provided, upon request, with lists of documents that appeared to be complete. The complainant also criticised (1) the fact that Mr P. had not informed him, in his letter of 14 April 2005, of his right to make a confirmatory application; (2) the fact that, contrary to the Commission's implementing provisions, the person who dealt with the initial request for access had also decided on his confirmatory application; (3) the fact that Mr P. had indicated that further letters would not be replied to; and (4) the fact that the letter of 11 May 2005 did not inform him of his right to bring an action or to make a complaint to the Ombudsman.

On 10 June 2005, OLAF's Director-General informed the complainant that, in view of the complexity of the issues raised by his e-mail of 20 May 2005, a reply would be sent by 28 June 2005 at the latest and asked for the complainant's understanding.

Complaint 2174/2005/GG

In a complaint to the Ombudsman, which was lodged on 13 June 2005 (complaint 2174/2005/GG), the complainant alleged that he had been denied access to documents, that OLAF and the Commission had violated various relevant provisions, and that his rights as a citizen had been infringed. The complainant submitted that, in view of the fact that his request for access had already been made on 30 March 2005, a further delay, as announced in the letter of 10 June 2005, was unacceptable.

In his decision of 24 June 2005 on this complaint, the Ombudsman noted that OLAF had announced that it would reply to the complainant's complaint of 20 May 2005 by 28 June 2005. Given that this reply was bound to be of some importance for the complainant's case, it did not appear appropriate to open an inquiry before this reply had been sent or before this time-limit had expired. It was true that this would cause some further delay. It had to be noted, however, that if the Ombudsman decided to open an inquiry, he would have to give the Commission and/or OLAF at least two months to provide an opinion. Opening an inquiry into the complaint would, therefore, not save any time. In view of the above, the Ombudsman informed the complainant that there were insufficient grounds for an inquiry.

The new complaint

On 29 June 2005, the complainant renewed his complaint. This letter was therefore registered as a new complaint (complaint 2350/2005/GG).

The complainant pointed out that OLAF had, in the meantime, replied to his letter of 20 May 2005. He added, however, that the reply was not satisfactory. In this reply of 28 June 2005, Mr P. pointed out that the complainant had submitted two requests for access to lists of documents, the first one on 30 March 2005 (concerning OLAF's correspondence with German authorities in 2003 and 2004) and the second one on 20 May 2005 (concerning OLAF's correspondence with German authorities in 2000, 2001 and 2002). OLAF confirmed that no such lists existed and that the requests had, therefore, been treated as requests for information. According to Mr P., providing the information that had been requested would require a list of some 8 000 documents to be drawn up. Doing so would thus, in OLAF's view, require a disproportionate effort. However, OLAF was ready to help as much as possible. It, therefore, asked the complainant to provide more specific information on the correspondence he was interested in (e.g., name of sender or recipient, date or reference).

In his complaint, the complainant essentially alleged that the Commission and OLAF had failed, both as regards substance and as regards procedure, properly to deal with his request for access made on 30 March 2005, with the confirmatory application made on 14 April 2005 and with the complaint of 20 May 2005.

The complainant stressed that Article 11 of Regulation 1049/2001 provided that every document should be included in a register. According to the complainant, there was no doubt that such a list existed, given that all OLAF documents known to him had a number.

The complainant's e-mail of 22 July 2005

In an e-mail sent on 22 July 2005, the complainant explained that, on 20 May 2005, he had submitted a further request for access to documents to the Commission. This request was again based on Regulation 1049/2001. In his request, he asked for access to "a complete list of the correspondence that OLAF had had with services of the German Federal Government and of governments of the German Länder in 2000, 2001 and 2002". In his above-mentioned letter of 28 June 2005, Mr. P. had informed him that no such list existed and that the request had, therefore, been treated as a request for information. On 29 June 2005, the complainant had lodged a confirmatory application. In his reply of 15 July 2005, Mr P. had confirmed OLAF's position.

In his e-mail of 22 July 2005, the complainant informed the Ombudsman that he wished to complain about this decision.

THE INQUIRY

The Ombudsman's approach

The original complaint was directed at both the Commission and OLAF. However, given that OLAF (and OLAF alone) appeared to have handled the matter from the very beginning, the Ombudsman considered that there were insufficient grounds for an inquiry as regards the Commission.

On 8 July 2005, the Ombudsman therefore sent the complaint to OLAF, asking for an opinion to be submitted by 30 September 2005.

On 22 July 2005, the complainant informed the Ombudsman that he wished to complain about a further decision by OLAF refusing access to documents. Given that the arguments and allegations submitted by the complainant in this e-mail were mutatis mutandis identical to those made in the original complaint, the Ombudsman took the view that it would make sense to extend the scope of the present complaint so as to cover OLAF's handling of the second request for access as well.

On 30 August 2005, the Ombudsman informed OLAF accordingly, extending the deadline for submitting the opinion until 31 October 2005.

OLAF's opinion

In its opinion, OLAF made the following comments:

Regulation 1049/2001 provided that, where an initial application for access to documents was not fully satisfied, the applicant had to be informed of the possibility of making a confirmatory application. Where the confirmatory application was also rejected, the applicant had to be informed of the possibility to appeal to the Court of First Instance or to the Ombudsman. However, these procedures did not apply where an application was made for a document that did not exist, since it was impossible to grant access to a non-existent document. Instead, the application was treated as a request for information, in accordance with section 4 of the Commission's Code. Under this Code, the responsible official was obliged to provide members of the public with the information they requested or to inform them of the reasons why the information could not be provided. However, there was no requirement to inform the person of a right to submit a confirmatory application or of remedies open to him, as these procedures did not apply with respect to a request for information.

OLAF had provided the complainant with the information he had requested, namely, that the list of documents that he had asked for did not exist, that in order to provide him with that information for all the years in question, OLAF would have had to create a list of more than 8 000 documents, and that this would have been a disproportionate administrative burden.

Accordingly, OLAF's treatment of the complainant's requests had been fully in compliance with the requirements of the Commission's Code.

Article 11 of Regulation 1049/2001 provides as follows:

"Registers

1. To make citizens' rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay.
2. For each document the register shall contain a reference number (including, where applicable, the interinstitutional reference), the subject matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. References shall be made in a manner which does not undermine protection of the interests in Article 4.
3. The institutions shall immediately take the measures necessary to establish a register which shall be operational by 3 June 2002."

Article 8 of Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its Rules of Procedure(3), which implements Article 11 of Regulation 1049/2001, addresses the coverage of the register. It provides:

"The coverage of the register provided for by Article 11 of Regulation (EC) No 1049/2001 shall be extended gradually. It shall be announced on the EUROPA homepage."

The Commission had taken substantial steps to implement these requirements. As explained to the complainant in the letter of 11 May 2005, the Commission had exercised its discretion by creating a register of its most important documents. The complainant had been provided with a link to that register. On the 'Europa' homepage, the following statement was made as regards the Commission's register:

"The Commission has therefore decided to create a register listing in the first instance certain categories of documents, primarily legislative documents with COM, C and SEC numbers and other categories such as the agendas and minutes of the Commission's meetings. This register contains references to documents produced since 1 January 2001 only. Coverage will gradually be extended to other categories of documents."

Since OLAF was part of the Commission, it partook in the Commission's register and, consequently, documents concerning antifraud policy and the domain of OLAF's activities were included therein. The register was constantly evolving to include an ever-increasing number of documents. In this manner, the Commission and OLAF had fully satisfied the requirements of Article 11.

The complainant quoted the words "each document" from Article 11(2) of Regulation 1049/2001 out of context to suggest that all the documents of an institution had to be included in its register. However, that paragraph simply specified the type of information that should be included for each document listed in the register. It did not establish a requirement that all of an institution's documents had to be listed. Article 11 of Regulation 1049/2001 and Article 8 of the Commission's implementing provisions were silent on the subject of which documents should be included in the register, leaving it to the discretion of the institution to implement this requirement in an appropriate manner. As shown above, the Commission had exercised its discretion in this regard in good faith.

For the reasons set out above, OLAF's handling of the complainant's requests had been fully correct.

The complainant's observations

In his observations, the complainant maintained his complaint and made the following further comments:

Article 11(1) of Regulation 1049/2001 provides: " References to documents shall be recorded in the register without delay." This could hardly be interpreted otherwise than meaning that all documents have to be included in the register as soon as they are produced. This interpretation was corroborated by Article 9 of the Regulation, which provides that, as regards "sensitive" documents, it has to be assessed which references are to be made in the register and that these documents are to be recorded in the register "only with the consent of the originator". It had to be concluded therefrom that the legislator had intended that, in principle, all documents should be recorded in a public register but had foreseen exceptions for specific documents. OLAF's refusal would, therefore, be legitimate if the relevant documents fell under the categories set out in Article 9 of Regulation 1049/2001. However, this was manifestly not the case and had also not been invoked by OLAF.

The Commission appeared to take the duty to maintain a register less seriously than the wording of Regulation 1049/2001 required. Although the Regulation had been in force since 3 December 2001 and although the register had been meant to be operational by 3 June 2002, the Commission had, so far, only taken one step, namely, publishing a list of COM, C and SEC documents. Whilst the Council and Parliament had set up relatively complete registers, the Commission was de facto even reducing its public registers. Whereas Mr Prodi had published an (incomplete) list of correspondence, his successor as President of the Commission, Mr Barroso, had decided to discontinue this practice.

In its recently published "Commission Staff Working Document - Report of the Inter-Departmental Working Group on a Possible European Transparency Initiative", the Commission acknowledged that the scope of its registers was "still relatively limited" and that this caused a "considerable amount of administrative work", since, somewhat inevitably, requests for access by citizens were often imprecise.

In any event, the question remained whether OLAF maintained a register. Although OLAF denied this, it was manifest that OLAF had a system of registering documents. There were thus without any doubt registers that were accessible in principle. OLAF had not addressed this issue. Nor had it dealt with his offer to inspect the complete register so as to avoid any extra effort for OLAF.

The complainant pointed out that OLAF had tried to justify the numerous procedural errors it had committed by arguing that his request had not been a request based on Regulation 1049/2001. However, this argument had not been used when OLAF had rejected his first application.

The complainant concluded by saying that OLAF's arguments failed to convince. He reiterated his view that access to the relevant lists of documents or to the complete register of all OLAF documents should be granted.

Further inquiries

After careful consideration of OLAF's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The first request for further information

On 13 December 2005, the Ombudsman, therefore, addressed a request for further information to OLAF. The Ombudsman asked OLAF to reply to the following questions:

(1) In its opinion, OLAF addressed the substantive issue raised by the present complaint and two of the four points that the complainant had made in his e-mail of 20 May 2005. However, OLAF did not address the complainant's criticism as regards (1) the fact that, contrary to the Commission's implementing provisions, the person who dealt with the initial request for access (Mr P.) had also decided on his confirmatory application, and as regards (2) the fact that, in his reply of 11 May 2005, Mr P. had indicated that further letters concerning the relevant matter would not be replied to. The Ombudsman asked to comment on these issues.

(2) In his observations, the complainant argued that OLAF manifestly had a system of registering documents and that thus without any doubt registers did exist. The complainant appeared to argue that OLAF would thus be able to provide him with the requested lists without having to shoulder a disproportionate administrative burden. The complainant also referred to his offer to inspect the complete register so as to avoid any extra effort for OLAF. The Ombudsman asked OLAF to comment on these points.

(3) In his observations, the complainant submitted further arguments to support his view that the register foreseen by Article 11 of Regulation 1049/2001 should be complete. In the context of his inquiry into complaint 917/2000/GG, the Ombudsman had already had occasion to consider the issue as to whether the rules on public access require that a complete list or register of documents be maintained. This inquiry led to a draft recommendation and subsequently to a special report to Parliament. The Ombudsman asked OLAF to submit its views on the arguments put forward by the complainant and the possible relevance of the above-mentioned special report for the present case.

In the draft recommendation made in case 917/2000/GG (which concerned the Council of the European Union), the Ombudsman expressed the view

"that principles of good administration require that in order to allow citizens to make proper use of their right to access to documents, all the documents that are put before the Council are listed in a document or register that is accessible to citizens. The additional administrative work that this will entail for the Council would have to be accepted in view of the fundamental importance which the right of citizens to have access to documents held by the Council has in order to guarantee openness and transparency in the latter's decision-making."

In his special report in this case, the Ombudsman noted that the Council had, in its detailed opinion, accepted his draft recommendation to provide a complete list or register. In the Ombudsman's view, the Council's reply did, however, leave room for doubts. The Ombudsman then stated:

"Regard needs to be had, however, to [Regulation 1049/2001]. Article 11(1) of this regulation, that was adopted on the basis of Article 255(2) of the EC Treaty, stipulates that each of these three institutions shall provide public access to a register of documents. Article 11(2) of the regulation provides that this register shall contain a reference for 'each' document. As pointed out in Article 11(1), the duty to keep such a register is imposed in order '[t]o make citizens’ rights under this Regulation effective'. However, Article 1 of the regulation specifies that the purpose of the regulation is to ensure the widest possible access to documents. It should also be noted that according to its Article 2(3), the regulation shall apply to 'all' documents held by the said institutions. (...)

The Ombudsman concludes from the above that Regulation 1049/2001 has created a legal duty to establish and make available a public register of all the documents put before the Council. (...)"

OLAF's replies

OLAF replied to this request for information on 31 January 2006. Given that this letter only replied to two of the three questions the Ombudsman had put to OLAF, the Ombudsman, by letter of 10 February 2006, asked it to provide a reply to the remaining question. OLAF sent a further reply on 2 March 2006.

In its replies, OLAF made the following comments:

As regards the first question, OLAF had addressed all the issues raised by the complainant. OLAF's letter of 14 April 2005, signed by Mr P., did not constitute a refusal to grant access, since the document requested by the complainant did not exist. Rather, it constituted a reply to a request for information. The complainant's reply of 14 April 2005 was addressed to Mr P. Thus, it was fully appropriate for Mr P. to sign the reply, which was sent on 11 May 2005. For the reason already indicated, the complainant's e-mail of 14 April 2005 did not constitute a confirmatory application. Rather, it constituted a repetitive request for the same information that the complainant had already requested on 30 March 2005. Since the letter of 11 May 2005 was already OLAF's second letter concerning the same request for information, it was fully appropriate to state that, pursuant to point 4 of the Commission's Code, further correspondence on this subject would be regarded as repetitive and would not receive a reply. Notwithstanding this statement, in an effort to ensure absolute clarity on the matter and to accommodate the complainant to the maximum extent possible, OLAF had sent a third reply on 28 June 2005. This letter had again explained that the complainant's request was being treated as a request for information.

As regards the second question, OLAF had never argued that it has no system of registering documents. On the contrary, OLAF fully complied with the Commission's rules and procedures for document management, including the rules on registration and keeping registers of documents. Accordingly, all incoming, internal and outgoing mail is handled in accordance with the OLAF Mail Registration System ("MRS"). Mail is registered within 'Adonis', the Commission's central registering software for incoming and outgoing documents, and scanned. OLAF's MRS is a crucial management tool. However, it is not designed to allow for access by a member of the public. It does not allow for a limited search, where specified data fields could be screened out. Thus, it would flagrantly violate Community provisions on data protection to allow the complainant to inspect the complete register.

In order to provide him with the information he requested, OLAF would be obliged not only to create a list of all incoming and outgoing mail to the German federal government and the German regional governments over a five-year period, but to review each item on the list to ensure that the revelation of the information contained therein would not breach Community professional secrecy and data protection requirements, as well as national judicial secrecy requirements. It goes without saying that creating such a list of all OLAF incoming and outgoing correspondence to and from any addressee and author would be even more burdensome.

As stated in OLAF's earlier comments, OLAF had invited the complainant to provide further details as to which correspondence was of interest to him. Until now, he had declined to do so. If the Ombudsman were to encourage him to limit his request, for example to a more limited period of time, this could enable OLAF to satisfy his request. In a demonstration of OLAF's commitment to reach a satisfactory result, a list covering the last three months of 2004 was enclosed.

As regards the third question, since OLAF was part of the Commission, it partook in the Commission's register. It was for the Commission, not for OLAF, to decide which documents to include in its register. The Commission's registers currently comprised references to more than 73 000 documents. These registers were continuously being expanded to include an ever increasing number of documents. However, for the time being, the Commission did not intend to include references to correspondence in its on-line registers, or documents dealing with sensitive matters, such as OLAF operations.

The Commission had to make a reasonable application of the requirement of Article 11 of Regulation 1049/2001, and balance it with other obligations, such as that of professional secrecy as well as requirements of data protection. Given the sensitive nature of the work of services entrusted with investigative powers, such as OLAF, disclosure of even the existence of documents related to operational matters could, in some circumstances, be harmful to the purpose of investigations, and could reveal confidential information subject to professional secrecy and data protection requirements. Correspondence between OLAF and national authorities frequently involved highly sensitive issues, such as transmission of the findings of an OLAF investigation which were being forwarded to a national judicial authority for follow-up action.

The Commission's choice as to which documents to include in its publicly available electronic registers was consistent with the choice made by the other institutions as to their registers. The Council's register included all standard documents which were the subject of discussion by the Council, including its preparatory bodies. However, no correspondence was included in the register, and there were no immediate plans to do so. Similarly, the European Parliament's register included official legislative documents. While some correspondence was included in the register, this was only official correspondence, mainly with other institutions. The Commission's approach was also in line with the practice of the Ombudsman himself, who did not include a register of all correspondence on his site.

An obligation that each and every one of an institution's documents be included in its publicly accessible register would be an overwhelming administrative burden. It would even be impossible to operate fully comprehensive registers due to the very large amount of documents dealt with by the Commission's services every day. The Commission had, however, undertaken the systematic internal registration of its documents on the basis of binding rules applicable to all its services.

In an effort to give full effect to Articles 6(2) and 11 of Regulation 1049/2001, the Commission supplemented its publicly available online registers in response to specific requests for access to documents by providing a list of documents designed to help an applicant identify the documents he is seeking. Consistent with this policy, OLAF had already provided a list to the complainant covering a three-month period, and would be willing to provide some further listing of documents if he narrowed down his request.

If there were any further questions as to the Commission's register, it was suggested that these should be addressed directly to the Commission.

The complainant's observations

In his observations, the complainant made the following comments:

It was positive to note that OLAF now recognised implicitly that registers of documents should at least be made accessible upon request. It was also to be welcomed that OLAF had been able to provide such a list at least for a period of three months.

Since OLAF's replies explicitly referred to Regulation 1049/2001, it admitted implicitly that this Regulation was relevant as regards his requests for access. The criticism concerning the procedural handling of these requests was, therefore, still valid.

The fact that some EU institutions possibly did not yet fully comply with their duty to maintain public registers of documents would not constitute an argument against the existence of such a legal obligation.

The fact that lists of documents could, under certain circumstances, omit sensitive documents was nothing new. As he had already pointed out in his observations on OLAF's opinion, this possibility was explicitly foreseen by Article 9 of Regulation 1049/2001.

The legal provisions currently in force did not foresee that a register of documents could only be made available as regards "a more limited time period". The request for the relevant lists of documents was, therefore, maintained. However, it was of course acceptable for OLAF first to provide a list for 2004 and then, step by step, send the lists for 2003, 2002, 2001 and 2000, for example one every few weeks.

The second request for further information

On 12 July 2006, the Ombudsman addressed a second request for further information to OLAF. The Ombudsman also asked the Commission for information concerning this case.

As regards OLAF, the Ombudsman noted that OLAF had, as a sign of its good will, provided a list of documents which covered the last three months of 2004 and which included references to some 300 documents. However, only a small part thereof (some 60 documents) would appear to concern correspondence with services of the German Federal Government and of governments of the German Länder as such, whereas the rest concerned correspondence with other German authorities or courts. The Ombudsman pointed out that his services had, therefore, contacted the complainant to check which documents he had had in mind when making his request to OLAF. The complainant had confirmed that his request only concerned OLAF's correspondence "with services of the German Federal Government and of governments of the German Länder" and that OLAF had listed more documents than he had envisaged. The Ombudsman, therefore, asked OLAF to inform him whether this clarification could affect its position concerning the present complaint.

In his letter to the Commission, the Ombudsman asked for a reply to the following questions:

(1) Could the Commission please explain whether it considers that the register of documents that it has established in order to comply with Article 11 of Regulation 1049/2001 should, in principle, cover documents in the possession of all Commission services, including for that purpose OLAF, or whether it takes the view that OLAF's independent status as regards the tasks assigned to it requires a different solution?

(2) In case the Commission considers that its register of documents should, in principle, also cover documents in the possession of OLAF, could the Commission please specify how documents in the possession of OLAF are included in this register, notably as regards the authority that decides on such inclusion?

(3) In case the Commission considers that its register of documents should, in principle, also cover documents in the possession of OLAF, could the Commission please explain why OLAF's correspondence does not appear to be included in this register?

OLAF's reply

In its reply, OLAF pointed out that the list it had provided had been established by first making a computer search of all correspondence to or from German authorities. There was no possibility to limit this computer search to only the authorities of the German Federal Government and governments of the German Länder, as the software would not allow for such a refinement in the search. Indeed, the relevant correspondence was never addressed to a government as such, but indicated a specific service or authority in the government as addressee or sender. Therefore, there was no suitable search word that one could use. According to OLAF, it would thus be necessary for a staff member to review each item on the list and manually delete all entries which do not involve correspondence with the German Federal Government and the governments of the German Länder. This would be more burdensome than creating a list of all correspondence to and from German authorities. OLAF, therefore, submitted that the clarification mentioned by the Ombudsman did not affect OLAF's position, because the increased burden of manually creating the initial list would counterbalance any decrease in the burden of reviewing each item on the shorter list to ensure compliance with professional secrecy, data protection and national judicial secrecy requirements.

The Commission's reply

In its reply, the Commission made the following comments:

(1) OLAF is a Commission department, but enjoys complete independence with regard to its investigations. Since OLAF is not an institution and has no distinct legal personality, it should be considered as part of the Commission for the application of Regulation 1049/2001. The independent status of OLAF does not prevent the inclusion of documents held by OLAF in the Commission's register of documents.

(2) The Commission operates mainly two public registers of documents, one covering the documents of the COM, C and SEC series, including agendas and minutes of the Commission's meetings, and another one covering documents related to the working of committees assisting the Commission in its decision-making. All OLAF documents falling within the scope of these registers are included in them.

(3) The scope of the Commission's public registers does not yet include correspondence. Regulation 1049/2001 does not require the institutions to set up comprehensive public registers of all the documents. However, the Commission is considering possible extensions of the scope of its registers.

The complainant's observations

In his observations, the complainant maintained his complaint.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and of the observations, the Ombudsman was not satisfied that OLAF had responded adequately to the complainant's arguments.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman(4) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned in order to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to OLAF:

1. OLAF could consider apologising to the complainant for the procedural irregularities that had occurred.
2. OLAF could consider providing the information that the complainant had requested.

In this letter, the Ombudsman inter alia set out the following provisional conclusions:

• OLAF had acted incorrectly when it informed the complainant, in its letter of 11 May 2005, that given that this was already the second query concerning the same issue, any further correspondence would be regarded as repetitive (according to point 4 of the Commission's Code) and would, therefore, not be replied to. (Point 10 of the proposal)
• It was doubtful whether producing the relevant lists was as cumbersome and time-consuming as OLAF claimed. (Point 18 of the proposal)
• OLAF had not provided any specific reason why the correspondence to which the complainant's request referred could or should not be included in the public register of documents maintained by the Commission. OLAF could thus not now be allowed to argue that complying with the complainant's request might now require a considerable amount of work. (Point 21 of the proposal)

OLAF's opinion

In its opinion, OLAF made the following comments:

As regards procedural issues, the mechanism established by Regulation 1049/2001 related to a denial of access to an existing document. In the present case, it was manifest at the moment of the first reply that no document existed that corresponded to the complainant's request. In these circumstances, the only logical treatment of the request was to view it as a request for information. OLAF had, therefore, handled the complainant's request in a correct manner.

As regards the substance of the case, the Commission's approach until now not to include correspondence in its public electronic register was based on the particular difficulties in implementing a comprehensive system for this type of documents in a way that did not undermine the protection of the interests specified in Article 4 of Regulation 1049/2001. OLAF should, therefore, not be blamed for not having previously created a public register including all correspondence.

OLAF was ready to provide a list of some of the documents, provided that the complainant narrowed his list down, so that it would not be a disproportionate administrative burden for OLAF to create such a list.

The complainant's proposal to provide him step by step with the list he had requested had been carefully considered. However, providing this list was still a disproportionate administrative burden. Even spread out over time, this would constitute a substantial task which would reduce the resources available for OLAF's core task of deterring and detecting fraud.

The Ombudsman's request for further information

On the basis of this opinion, the Ombudsman considered it possible that OLAF might have overlooked certain passages of his proposal, namely point 10 as regards procedural issues and points 18 and 21 as regards the substance of the case. The Ombudsman, therefore, asked OLAF whether it had, in the light of the above, any comments to add to the ones already made in its letter of 30 January 2007.

OLAF's reply

In its reply, OLAF made the following comments:

As regards point 10 of the Ombudsman's proposal, OLAF had not refused to provide the complainant with a second reply, but simply drawn his attention to the fact that any further correspondence would be considered repetitive. However, using the relevant provision (point 4 of the Commission's Code) would in the future be regarded as a last resort, which OLAF should only use after careful consideration and when the circumstances clearly merited such treatment of correspondence.

As regards points 18 and 21 of the Ombudsman's proposal, there was nothing to add to the previous reply, which had been made after a careful consideration of the issues. The complainant's request could not be met simply by conducting an electronic search on the basis of specific search words. This was the reason why OLAF needed to check all 300 entries relating to correspondence with German authorities when it had undertaken a sampling exercise to measure the extent of work required. OLAF could, therefore, only repeat, with regret, that it could not accept the Ombudsman's suggestion in this respect.

For the reasons already explained it would not be practicable to include OLAF's correspondence in a public register. The broad interpretation of Article 11 of Regulation 1049/2001 suggested by the Ombudsman would also not be in accordance with the practice of the other institutions.

The complainant's observations

In his observations, the complainant maintained his complaint. He submitted that he did not consider the administrative burden that dealing with his request would necessitate to be particularly unusual. The complainant further stressed that, as he had already pointed out before, Article 9 of Regulation 1049/2001 explicitly envisaged the possibility to omit sensitive documents from the public register. If the documents concerned should all be confidential and "sensitive", they would obviously not have to be included in the register or the list. The complainant added that OLAF had not addressed this issue.

The Ombudsman's appraisal

On the basis of OLAF's opinion and the complainant's observations thereon, the Ombudsman concluded that no friendly solution could be achieved.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 15 May 2007, the Ombudsman addressed the following draft recommendation to OLAF(5):

1. OLAF should apologise to the complainant for the procedural irregularities that had occurred.
2. OLAF should provide the information that the complainant had requested.

This draft recommendation was based on the Ombudsman's view that OLAF had failed to provide a reasonable explanation for its position and that it had, in particular, not established that preparing the lists requested by the complainant would constitute a disproportionate burden(6).

OLAF's detailed opinion

In its detailed opinion on the draft recommendation, OLAF made the following comments:

As regards procedural issues, the relevant request concerned a non-existent document and thus, in fact, constituted a request for information. The request, therefore, fell outside the scope of Regulation 1049/2001. This request for information had been treated correctly.

As regards the substance of the case, OLAF had used the 'Adonis' system to produce the list of 300 items covering the last three months of 2004. The Ombudsman had considered that 'only' 60 of these documents had been relevant. Even if one were to assume that only one in five items were relevant, an 'Adonis'-produced list of 8000 items would still result in a final list of 1600 relevant items over the entire five-year period. Moreover, it would still involve the review of 8000 entries by OLAF staff to refine the list beyond what was possible from the 'Adonis' search. As had been the case with producing the sample list, most of OLAF's heads of units would have to be involved to check the correspondence falling under their scope of responsibility. In addition, a German lawyer and the data protection officer would have to review the list in order to ensure that all requirements with regard to data protection were fulfilled.

This would consume many hours of OLAF's limited human resources, preventing other pressing matters from being dealt with. The suggestion made by the complainant to send the whole list step by step would not reduce the administrative burden, but only spread it over time.

Even with regard to Regulation 1049/2001, the Community courts had confirmed that the principle of proportionality must be applied. In its judgment in Case T-2/03, the Court of First Instance had stressed that this principle "requires measures adopted by Community institutions not to exceed the limits of what is appropriate and necessary to attain the objectives pursued; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."(7)

OLAF was reiterating its offer for the complainant to narrow down his request so that it focuses more specifically on his needs, thereby reconciling his interests with those of good administration. The degree of assistance due to the complainant largely depended on his willingness to co-operate with OLAF to target his request at individually identified or identifiable documents.

The same considerations should a fortiori apply to a request for access to information.

OLAF thus felt that it had not denied the complainant's rights when it had invited him, on several occasions, to narrow down his request to what was essential. However, and until now, the complainant had not responded to this invitation.

OLAF agreed that the underlying idea expressed in Article 11(1) of Regulation 1049/2001 was to make citizens' rights effective. OLAF and the Commission supported this idea, and the range of matters covered in the Commission's register would be gradually extended. As already pointed out, even the Ombudsman had not yet created an exhaustive register so as to include all correspondence.

Accordingly, OLAF had to use other tools when following up the request for information submitted by the complainant. However, these tools had been created for other purposes and their use required intensive individual entry-based scrutiny. Using 'Adonis' to create the requested list involved a substantial administrative burden since (i) doing so required an individual review of each listing, to ensure that no personal data or other confidential information was included, and (ii) the search function in 'Adonis' was limited and would not, without substantial manual refinements, permit the creation of lists such as that necessary to respond to the complainant's request.

In view of the above, OLAF did not agree that procedural irregularities had occurred in the handling of the complainant's request. Furthermore, and after careful consideration, OLAF was not able, in applying reasonable standards of good administration, to accept the disproportionate administrative burden involved in producing the complete list for the five-year period request by the complainant.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 The relevant facts and the Ombudsman's approach

1.1 The present case concerns OLAF's handling of two requests that the complainant, a German journalist, submitted to it. Both requests were based on 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(8) ("Regulation 1049/2001").

1.2 In his first request, made on 30 March 2005, the complainant asked for access to "a complete list of the correspondence that OLAF had had with services of the German Federal Government and of governments of the German Länder in 2003 and 2004". In his second request, which was made on 20 May 2005, the complainant asked for "a complete list of the correspondence that OLAF had had with services of the German Federal Government and of governments of the German Länder in 2000, 2001 and 2002".

1.3 Given that, with the exception of the period of time which they concern, the two requests are identical and that the handling of the second request does not involve any issues that would go beyond those raised by OLAF's handling of the first request, the following considerations will focus on the latter.

1.4 On 14 April 2005, Mr P., a director of OLAF, informed the complainant that it was not possible to give him the document requested since such a document did not exist. On the same day, and in reply to this message, the complainant submitted what he referred to as a confirmatory application. The complainant argued that Mr P.'s statement appeared be in contradiction with Article 11 of Regulation 1049/2001. In the complainant's view, this provision stipulated that "all" documents should be listed in a publicly available register. The complainant pointed out that his request aimed at obtaining an excerpt from this register. He noted that the Commission and other Community bodies had in the past provided him with such excerpts or produced them at his request.

1.5 In his reply of 11 May 2005, Mr P. submitted that Article 11 of Regulation 1049/2001 did not oblige the institutions concerned to include all documents in the register. Mr P. noted that the Commission had established a register as regards its essential documents. He further pointed out that there was no list of OLAF's correspondence as requested by the complainant and that it would be a disproportionate burden on OLAF to produce one. Mr P. concluded by saying that, given that this had already been the second query made by the complainant concerning the same issue, any further correspondence would, according to point 4 of the Commission's Code of Conduct(9) ("the Commission's Code"), be regarded as repetitive and would, therefore, not be replied to.

1.6 On 20 May 2005, the complainant submitted a complaint to OLAF in which he reiterated his views as to the substance of the matter. The complainant also criticised (1) the fact that Mr P. had not, in his letter of 14 April 2005, informed him of his right to make a confirmatory application; (2) the fact that, contrary to the Commission's implementing provisions, the person who dealt with the initial request for access had also decided on his confirmatory application; (3) the fact that Mr P. had indicated that further letters would not be replied to; and (4) the fact that the letter of 11 May 2005 did not inform him of his right to bring an action or to make a complaint to the Ombudsman.

1.7 On 10 June 2005, OLAF sent a holding letter to the complainant and, on 28 June 2005, it replied to the complainant's letter of 20 May 2005. In this reply, OLAF confirmed that the lists requested by the complainant did not exist and that his requests of 30 March and 20 May 2005 had, therefore, been treated as requests for information. Providing the information that had been requested would require a list of some 8 000 documents to be drawn up and would thus, in OLAF's view, require a disproportionate effort. However, OLAF was ready to help as much as possible. It, therefore, asked the complainant to provide more specific information on the correspondence he was interested in (e.g., name of sender or recipient, date or reference).

1.8 In his complaint to the Ombudsman, made on 29 June 2005, the complainant essentially alleged that OLAF had failed, both as regards substance and as regards procedure, properly to deal with his request for access made on 30 March 2005, with the confirmatory application made on 14 April 2005, and with the complaint of 20 May 2005. The complainant subsequently made corresponding allegations concerning OLAF's handling of his second request of 20 May 2005.

1.9 The Ombudsman noted that the original complaint was directed at both the Commission and OLAF. However, given that OLAF (and OLAF alone) appeared to have handled the matter from the very beginning, the Ombudsman considered that there were insufficient grounds for an inquiry as regards the Commission. The Ombudsman, therefore, opened an inquiry exclusively as regards OLAF.

1.10 During this inquiry, OLAF maintained its position. However, and stressing that it wished to show its commitment to reach a satisfactory result, OLAF provided the complainant with a list covering the relevant items of correspondence that had been exchanged in the last three months of 2004.

1.11 On 14 December 2006, the Ombudsman submitted a proposal for a friendly solution to OLAF, which was rejected by the latter. On 15 May 2007, the Ombudsman, therefore, addressed a draft recommendation to OLAF. However, this draft recommendation was also rejected by OLAF.

1.12 The Ombudsman considers it appropriate to deal with the procedural issues before examining the substance of the case.

2 As regards procedural aspects

2.1 The complainant criticised (1) the fact that, in his letter of 14 April 2005, Mr P. had not informed him of his right to make a confirmatory application, (2) the fact that, contrary to the Commission's implementing provisions, the person who dealt with the initial request for access had also decided on his confirmatory application; (3) the fact that Mr P. had indicated that further letters would not be replied to; and (4) the fact that the letter of 11 May 2005 did not inform him of his right to bring an action or to make a complaint to the Ombudsman.

2.2 In its opinion, OLAF acknowledged that Regulation 1049/2001 provided that, where an initial application for access to documents was not fully satisfied, the applicant had to be informed of the possibility of making a confirmatory application. Where the confirmatory application was also rejected, the applicant had to be informed of the possibility to appeal to the Court of First Instance or to the Ombudsman. According to OLAF, however, these procedures did not apply where an application was made for a document that did not exist, since it was impossible to grant access to a non-existent document. OLAF submitted that the application had instead been treated as a request for information, in accordance with section 4 of the Commission's Code. Under this Code, the responsible official was obliged to provide members of the public with the information they requested or inform them of the reasons why the information could not be provided. However, there was no requirement to inform the person of a right to submit a confirmatory application or of remedies open to him, as these procedures did not apply with respect to a request for information. OLAF's handling of the complainant's requests had therefore been fully correct.

2.3 In his observations, the complainant p ointed out that OLAF had tried to justify the numerous procedural errors it had committed by arguing that his request had not been a request based on Regulation 1049/2001. However, this argument had not been used when OLAF had rejected his first application.

2.4 On 13 December 2005, the Ombudsman asked OLAF for further information concerning these issues.

2.5 In its reply, OLAF stressed that its letter of 14 April 2005, signed by Mr P., did not constitute a refusal to grant access, since the document requested by the complainant did not exist. The complainant's reply of 14 April 2005 was addressed to Mr P. In OLAF's view, it was thus fully appropriate for Mr P. to sign the reply, which was sent on 11 May 2005. For the reason already indicated, the complainant's e-mail of 14 April 2005 did not constitute a confirmatory application. According to OLAF, it rather constituted a repetitive request for the same information that the complainant had already requested on 30 March 2005. Since the letter of 11 May 2005 was already OLAF's second letter concerning the same request for information, OLAF took the view that it was fully appropriate to state that, pursuant to point 4 of the Commission's Code, further correspondence on this subject would be regarded as repetitive and would not receive a reply. Notwithstanding this statement, in an effort to ensure absolute clarity on the matter and to accommodate the complainant to the maximum extent possible, OLAF had sent a third reply on 28 June 2005. This letter had again explained that the complainant's request was being treated as a request for information.

2.6 In his observations, the complainant maintained his observations.

2.7 Both in its reply to the Ombudsman's proposal for a friendly solution and in its detailed opinion, OLAF reiterated its belief that no procedural irregularities had occurred in the handling of the complainant's request.

2.8 According to Article 23 of the European Code of Good Administrative Behaviour(10), requests for public access to documents shall be dealt with in accordance with the rules and principles set out in Regulation 1049/2001.

2.9 The Ombudsman notes that the complainant's request of 30 March 2005 was explicitly based on Regulation 1049/2001. OLAF has submitted a copy of the acknowledgement of receipt that was sent to the complainant on 31 March 2005. In this e-mail, the complainant was informed that his "request for access to documents" had been received and that he would, in conformity with Regulation 1049/2001, receive a reply within 15 working days. OLAF's reply of 14 April 2005 also refers to the complainant's "request for access to documents made in conformity with Regulation 1049/2001". It is thus clear that OLAF was aware of the fact that the complainant's request had been made on the basis of Regulation 1049/2001 and had to be handled accordingly.

2.10 Article 7(1) of Regulation 1049/2001 provides that, where access is refused, the applicant shall be informed of his right to make a confirmatory application. The Ombudsman understands that OLAF did not provide this information on the grounds that the document did not exist. At first sight, OLAF's argument that an applicant does not need to be informed of his right to make a confirmatory application in such a case appears attractive. Where a document does not exist, making a confirmatory application would indeed represent an empty formality, given that the institution concerned could only provide the same answer that it already gave to the original application, namely, that no access can be granted because the relevant document does not exist. However, regard should be had to the fact that the possibility to make a confirmatory application foreseen by Regulation 1049/2001 serves the purpose of allowing the institution to reconsider its position with a view to correcting any mistakes that might have occurred. Given that it cannot be excluded that this review might lead to the result that a document that the institution believed to be non-existent does after all exist, a confirmatory application can nevertheless be useful in such circumstances. As a matter of fact, the Ombudsman has already had to deal with cases where documents were only discovered after a confirmatory application had been made or after he had opened an inquiry into a complaint concerning the rejection of a request for access. In view of these circumstances, the Ombudsman considers that OLAF's view that the complainant did not need to be informed about his right to make a confirmatory application was erroneous.

2.11 OLAF has argued that its le tter of 14 April 2005 did not constitute a refusal to grant access, but rather a reply to a request for information. It is indeed conceivable that a request for access to a document could, where this document indeed does not exist, instead be understood as a request for information concerning the object of the presumed document. To that extent, the Ombudsman agrees with the view expressed by OLAF, in its reply to the Ombudsman's proposal for a friendly solution in this case, according to which it was logical to deal with the complainant's request as being a request for information. However, in such a case, the applicant would have to be informed in clear terms that his request for access has been re-interpreted as being a request for information. Furthermore, and since the rights foreseen by Regulation 1049/2001 have to be respected by the administration, the applicant would also have to be informed that, if he wished to pursue his request for access, he could make a confirmatory application. However, the Ombudsman notes that, in the present case, OLAF neither informed the complainant about his right to make a confirmatory application nor gave any clear indication, in its letter of 14 April 2005, that it intended to treat the request as one for information. The first suggestion to that effect was only contained in OLAF's reply to the confirmatory application, in which it referred to a "request for access to information". However, this letter was ambiguous, since the reference itself mentioned a request for "access to documents". It was only in its letter of 28 June 2005 that OLAF explained that it considered the complainant's inquiries as "requests for information". It must, therefore, be concluded that the way in which OLAF implemented its own approach to the complainant's application was unsatisfactory.

2.12 By its Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure(11), the Commission adopted detailed rules for the application of Regulation 1049/2001 by its services, including (for that purpose) OLAF. Article 4 of these rules provides that decisions on confirmatory applications are to be taken, as far as OLAF is concerned, by its Director-General(12). The fact that the decision of 11 May 2005 on the complainant's confirmatory application was sent by Mr P., a director within OLAF (that is to say, the head of one of OLAF's Directorates), was therefore not in conformity with the rules.

2.13 Article 4 of the Commission's implementing rules also provides that the decision on a confirmatory application shall inform the applicant of his right to bring an action before the Court of First Instance or to lodge a complaint with the Ombudsman. OLAF's failure to do so in its letter of 11 May 2005 thus constitutes a further procedural irregularity.

2.14 Instead of providing the information prescribed by the Commission's rules implementing Regulation 1049/2001, OLAF, in its letter of 11 May 2005, informed the complainant that, given that this was already the second query concerning the same issue, any further correspondence would, according to point 4 of the Commission's Code, be regarded as repetitive and would, therefore, not be replied to. In view of the fact that Regulation 1049/2001 provides for a two-tier procedure and thus presupposes a second application in cases where the original request is rejected, OLAF's reply clearly constituted an incorrect reaction to the complainant's e-mail of 14 April 2005. An application of the relevant provision of the Commission's Code could only have been conceivable if OLAF had unambiguously and from the very beginning informed the complainant that it considered it appropriate to deal with his request for access to documents as a request for information instead. Given that no such information was provided, OLAF was clearly not able to rely on the said provision in the present case. The Ombudsman considers it useful to add that, even if such information had been given, it would have been inappropriate to rely on point 4 of the Commission's Code, since (as explained in point 2.10 above) the rights foreseen by Regulation 1049/2001 have to be respected by the administration. For the sake of completeness, regard should be had to the fact that point 4 of the Commission's Code refers to correspondence "which can reasonably be regarded as improper, for example because it is repetitive". The Ombudsman fails to see how the complainant's e-mail of 14 April 2005 could be considered as being improper, even if OLAF's view that it had to be regarded as a second request for information were to be accepted.

2.15 On the basis of the above, the Ombudsman arrives at the conclusion that OLAF committed a number of procedural irregularities and that these constitute instances of maladministration.

2.16 The Ombudsman takes the view that the irregularities concerning issues (1), (2) and (4) set out in point 2.1 above are linked and could be considered as being comparatively minor. However, regard should be had to the fact that OLAF has not even expressed regrets in this regard, let alone apologised for these irregularities, even though the Ombudsman had suggested that it do both in his proposal for a friendly solution and in his draft recommendation. Instead, OLAF has insisted that it had handled the complainant's request in a correct manner. The Ombudsman regrets that OLAF thus omitted to avail itself of a possibility to resolve this aspect of the case that would have been both simple and citizen-friendly.

2.17 As regards the fourth irregularity, which concerns the allegedly repetitive nature of the complainant's correspondence, the Ombudsman is pleased to note that, in its reply to the proposal for a friendly solution, OLAF has stressed that the relevant provision, that is, point 4 of the Commission's Code, would in the future be regarded as a last resort, which OLAF should only use after careful consideration and when the circumstances clearly merited such treatment of correspondence. However, the Ombudsman again notes that OLAF has not expressed regrets or apologised to the complainant regarding this matter.

2.18 In view of the above, the Ombudsman concludes that OLAF acted incorrectly, given (1) that, in its first reply to the complainant, it failed to inform the complainant of his right to make a confirmatory application, (2) that, contrary to the Commission's implementing provisions, the person who dealt with the initial request for access had also decided on his confirmatory application; (3) that it indicated to the complainant, after having received the latter's confirmatory application, that further letters would not be replied to; and (4) that its reply to the complainant's confirmatory application for access did not inform him of his right to bring an action or to make a complaint to the Ombudsman. These are instances of maladministration. The Ombudsman considers it important to underline that his conclusion would have been different as regards items (1), (2) and (4) if OLAF had made it clear from the very beginning that it considered the complainant's request to be a request for information and not as a request for access under Regulation 1049/2001.

3 As regards the substance of the case

3.1 On 30 March and 20 May 2005 respectively, the complainant asked OLAF for access to a complete list of the correspondence that it had had with services of the German Federal Government and of governments of the German Länder in 2000, 2001, 2002, 2003 and 2004. The complainant argued that Article 11 of Regulation 1049/2001 stipulated that "all" documents should be listed in a publicly available register. The complainant pointed out that his request aimed at obtaining an excerpt from this register. He noted that the Commission and other Community bodies had in the past provided him with such excerpts or produced them at his request. OLAF took the view that Article 11 of Regulation 1049/2001 does not oblige the institutions concerned to include all documents in the register. It added that there was no list of OLAF's correspondence as requested by the complainant and that it would be a disproportionate burden on OLAF to produce one.

In his complaint to the Ombudsman, the complainant in substance alleged that OLAF had failed properly to deal with the substance of his requests for access.

3.2 In its opinion, OLAF confirmed that no such lists existed and that the requests had, therefore, been treated as requests for information. According to OLAF, providing the information that had been requested would require a list of some 8000 documents to be drawn up. Doing so would thus, in OLAF's view, require a disproportionate effort. However, OLAF was ready to help as much as possible. It therefore asked the complainant to provide more specific information on the correspondence he was interested in (e.g., name of sender or recipient, date or reference).

3.3 In his observations, the complainant pointed out that Article 11(1) of Regulation 1049/2001 provided that " [r]eferences to documents shall be recorded in the register without delay." According to the complainant, this could hardly be interpreted otherwise than meaning that all documents had to be included in the register as soon as they had been produced. This interpretation was corroborated by Article 9 of the Regulation, which provided that as regards "sensitive" documents, it has to be assessed which references were to be made in the register and that these documents are to be recorded in the register "only with the consent of the originator". The complainant submitted that it had to be concluded therefrom that the legislator had intended that, in principle, all documents should be recorded in a public register but had foreseen exceptions for specific documents. OLAF's refusal would, therefore, be legitimate if the relevant documents fell under the categories set out in Article 9 of Regulation 1049/2001. However, this was manifestly not the case and had also not been alleged by OLAF.

3.4 In its reply to the first request for further information addressed to it by the Ombudsman, OLAF submitted that, in order to provide him with the information he requested, OLAF would be obliged not only to create a list of all incoming and outgoing mail to the German federal government and the German regional governments over a five-year period, but to review each item on the list to ensure that the revelation of the information contained therein would not breach Community professional secrecy and data protection requirements, as well as national judicial secrecy requirements. OLAF had, therefore, invited the complainant to provide further details as to which correspondence was of interest to him. Until now, he had declined to do so. If the Ombudsman were to encourage him to limit his request, such as to a more limited period of time, this could enable OLAF to satisfy his request. OLAF added that in a demonstration of its commitment to reach a satisfactory result, a list covering the last three months of 2004 was enclosed.

OLAF pointed out that, in an effort to give full effect to Articles 6(2) and 11 of Regulation 1049/2001, the Commission supplemented its publicly available online registers in response to specific requests for access to documents by providing a list of documents designed to help an applicant identify the document he is seeking. It added that, consistent with this policy, OLAF had already provided a list to the complainant covering a three-month period, and would be willing to provide some further listing of documents if he narrowed down his request.

3.5 In his observations, the complainant insisted that the legal provisions currently in force did not foresee that a register of documents could only be made available as regards "a more limited time period". The request for the relevant lists of documents was, therefore, maintained. The complainant stressed, however, that it was of course acceptable for OLAF first to provide a list for 2004 and then, step by step, send the lists for 2003, 2002, 2001 and 2000, for example one every few weeks.

3.6 In its reply to the proposal for a friendly solution submitted to it by the Ombudsman, OLAF reiterated its view that creating a list for all the years concerned would constitute a disproportionate administrative burden. OLAF added that the complainant's proposal to provide him step by step with the list he had requested had been carefully considered. According to OLAF, however, providing this list still constituted a disproportionate administrative burden. Even spread out over time, this would constitute a substantial task which would reduce the resources available for OLAF's core task of deterring and detecting fraud.

3.7 In its detailed opinion on the draft recommendation, OLAF reiterated its view and elaborated on it in the light the of the comments the Ombudsman had made. OLAF submitted that even if one were to assume that only one in five items were relevant, a list of 8000 items that was established on the basis of the 'Adonis' system would still result in a final list of 1600 relevant items over the entire five-year period. Moreover, it would still involve the review of 8000 entries by OLAF staff to refine the list beyond what was possible from the 'Adonis' search. OLAF added that most of its heads of units would have to be involved to check the correspondence falling under their scope of responsibility. In addition, a German lawyer and the data protection officer would have to review the list in order to ensure that all requirements with regard to data protection were fulfilled. According to OLAF, this would consume many hours of its limited human resources, preventing other pressing matters from being dealt with.

OLAF added that the importance of the principle had been highlighted, with regard to Regulation 1049/2001, by the Court of First Instance in its judgment in Case T-2/03. In OLAF's view, the degree of assistance due to the complainant largely depended on his willingness to co-operate with OLAF to target his request at individually identified or identifiable documents. OLAF submitted that the same considerations should a fortiori apply to a request for access to information.

OLAF noted that it agreed that the idea underlying Article 11(1) of Regulation 1049/2001 was to make citizens' rights effective. It referred to the fact that the range of matters covered in the Commission's register would be gradually extended. OLAF also pointed out that even the Ombudsman had not yet created an exhaustive register so as to include all correspondence.

3.8 The Ombudsman notes that the complainant’s allegation is based on the view that OLAF ought to provide him with the lists he required on the basis of Article 11 of Regulation 1049/2001. According to this provision, each institution shall, in order to make citizens' rights under this Regulation effective, "provide public access to a register. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay."

3.9 The Ombudsman has already had occasion to consider this provision in the d raft recommendation and the subsequent special report that he submitted in case 917/2000/GG, which concerned the Council of the European Union(13). In that case, the Ombudsman arrived at the conclusion that the register maintained by the Council should comprise all the documents put before the Council. Given that the complainant in that case was only concerned about this type of document, the Ombudsman did not have to examine whether other documents, such as correspondence with other institutions or third parties, should also be included in the register. However, it should be noted that the relevant register is intended, as Article 11 of Regulation 1049/2001 underlines, "[t]o make citizens' rights under this Regulation effective". Article 2(3) provides that the Regulation shall apply to "all" documents held by an institution, "that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union". Recital 4 indicates that the purpose of Regulation 1049/2001 is to give "the fullest possible effect to the right of public access". In view of these facts, the Ombudsman considers that the register referred to in Article 11 can only achieve its aim "[t]o make citizens' rights under this Regulation effective" if it is as comprehensive as possible. It is indeed difficult to see how a citizen could make proper use of his right of access if she or he does not even know which documents are held by an institution.

3.10 In order to avoid misunderstandings, it is important to stress that this principle does not mean that legitimate interests that may justify secrecy would be jeopardised. First of all, Article 11(2) provides that references in the public register are to be made in a way "which does not undermine protection of the interests in Article 4". Since Article 4 provides for exceptions from the right of access to protect certain public and private interests, it is clear that the need to protect the interests to which OLAF has referred must be taken into account when registering the relevant documents. Second, as the complainant has correctly pointed out, Article 9(2) provides that the institution has to assess, "without prejudice to Article 11(2)", which references to "sensitive" documents (that is to say, documents within the meaning of Article 9(1) of Regulation 1049/2001) can be made in the public register. It is, therefore, perfectly possible that certain "sensitive" documents do not need to be listed in a public register of documents. In view of the possibilities to protect legitimate interests of confidentiality that Regulation 1049/2001 thus affords, the Ombudsman is not convinced by OLAF's argument (in its reply to the proposal for a friendly solution) that it would not be practicable to include references to OLAF's correspondence in a public register. The Ombudsman is pleased to note that OLAF did not appear to reiterate this position in its detailed opinion.

3.11 However, the Ombudsman considers that the present case does not oblige him to examine in more detail the extent of the obligations arising under Article 11(1) of Regulation 1049/2001(14). It should be noted that OLAF has not denied that the complainant can be given access to lists such as the ones he has requested. On the contrary, OLAF has expressly referred to the fact that the Commission, in an effort to give full effect to Articles 6(2) and 11 of Regulation 1049/2001, supplemented its publicly available online registers in response to specific requests for access to documents by providing a list of documents designed to help an applicant identify the documents he is seeking. OLAF added that, consistent with this policy, it had already provided a list to the complainant covering a three-month period, and would be willing to provide some further listing of documents if he narrowed down his request. It thus appears that OLAF does not deny the complainant's right to receive information of the type he is requesting but only contends that providing all the information would require a disproportionate effort on its part.

3.12 In its opinion, OLAF has argued that complying with the complainant's request would oblige it to create a list of more than 8 000 documents and that this would be a disproportionate administrative burden. In its detailed opinion on the Ombudsman's draft recommendation OLAF has, as mentioned above, expanded on this view.

3.13 It appears useful to note that the Court of First Instance has already had to deal with the question as to whether access to documents can be refused under Regulation 1049/2001 if dealing with the relevant request would constitute an overly great burden on the administration.

3.14 In its judgement in Case T-2/03(15), the Court held as follows:

"101 It should however be borne in mind that it is possible for an applicant to make a request for access, under Regulation No 1049/2001, relating to a manifestly unreasonable number of documents, perhaps for trivial reasons, thus imposing a volume of work for processing of his request which could very substantially paralyse the proper working of the institution. It should also be noted that, where a request relates to a very large number of documents, the institution’s right to seek a ‘fair solution’ together with the applicant, pursuant to Article 6(3) of Regulation No 1049/2001, reflects the possibility of account being taken, albeit in a particularly limited way, of the need, where appropriate, to reconcile the interests of the applicant with those of good administration.

102 An institution must therefore retain the right, in particular cases where concrete, individual examination of the documents would entail an unreasonable amount of administrative work, to balance the interest in public access to the documents against the burden of work so caused, in order to safeguard, in those particular cases, the interests of good administration (see, by analogy, Hautala v Council, cited in paragraph 69 above, paragraph 86).

103 However, that possibility remains applicable only in exceptional cases.

(...)

112 Accordingly, it is only in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible (see, by analogy, Kuijer II, paragraph 57).

113 In addition, in so far as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, it is with the institution relying on an exception related to the unreasonableness of the task entailed by the request that the burden of proof of the scale of that task rests."

3.15 As mentioned above, OLAF has explained that the list to which the complainant wishes to be given access does not yet exist but would have to be created first. The present case thus does not concern a request for access to documents in the normal meaning of Regulation 1049/2001, but a request for a list of documents that still needs to be prepared. The Ombudsman considers, however, that the above-mentioned case-law can also be applied to the present case, particularly since preparing a list of documents, on the basis of data or material that is already available in electronic form, can hardly be more burdensome and time-consuming than examining whether access to the documents themselves can be granted.

3.16 OLAF has consistently claimed that complying with the complainant's request would constitute a disproportionate burden of work. However, it was only in its detailed opinion on the Ombudsman's draft recommendation that OLAF provided more specific arguments to support this claim.

3.17 The only concrete element that had been mentioned previously was the figure of 8 000 documents to which OLAF already referred in its letter to the complainant of 28 June 2005. According to this letter, OLAF would have to draw up a list of 8 000 documents in order to find the information requested by the complainant. However, this figure would appear to include many documents that are not covered by the complainant's request. The Ombudsman has studied the list of the correspondence covering the last three months of 2004 which OLAF provided to the complainant as a gesture of its good will. This list comprises some 300 documents, of which only a small part (some 60 documents) were relevant for the complainant since they concerned correspondence with services of the German Federal Government and of governments of the German Länder. In the Ombudsman's view, it is, therefore, highly likely that the overall number of the documents that match the complainant's request is far smaller than the figure provided by OLAF.

3.18 In its reply to a question put to it by the Ombudsman, OLAF argued that it had created the list it had provided by making a computer search for all correspondence to or from German authorities. According to OLAF, there was no possibility to limit this computer research to correspondence exchanged with authorities of the German Federal Government and of governments of the German Länder, as the software would not allow for such a refinement in the search. OLAF explained that the relevant correspondence was never addressed to a government as such, but indicated a specific service or authority in the government as addressee or sender. According to OLAF, there was, therefore, no suitable search word that one could use. OLAF submitted that it would thus be necessary for a staff member to review each item on the list and manually delete all entries which do not involve correspondence with the German Federal Government and the governments of the German Länder. According to OLAF, this would be more burdensome than creating a list of all correspondence to and from German authorities. In its detailed opinion, OLAF reiterated its argument that even if one were to accept that only one out of five of the documents on the original list was relevant, dealing with the complainant's request would still involve the review of 8000 entries by OLAF staff to refine the list beyond what was possible from the 'Adonis' search.

3.19 The Ombudsman is not convinced by this argument. It is true that the list that OLAF provided to the complainant confirms that OLAF's correspondence is not addressed to the federal government or one of the Länder governments as such but to a specific service or authority. It should be noted, however, that the 'specific service or authority' in this case is the relevant ministry or minister in the government concerned. An examination of the above-mentioned list shows that all but one of the entries that would appear to be relevant for the complainant's requests are referred to as correspondence with a German (federal or Land) "ministry". The German equivalent ("Ministerium") is always indicated, either as a separate word or as part of a compound like "Bundesministerium" ("federal ministry"). The only exception is a letter received from a German "minister" (in German, "Minister"). It would, therefore, not appear to be excluded that by carrying out a further search, using a search term like "Minister", OLAF could easily remove all those documents that are not relevant for present purposes. The Ombudsman, therefore, remains unconvinced that the technical problems to which OLAF has referred are such that OLAF would by necessity have to spend a disproportionate amount of time and work in order to establish a list comprising all its correspondence with the German federal government and the governments of the German Länder.

3.20 It is true that even if one were to assume that only one in five of the items included in the original list of all correspondence with German authorities was relevant, this would still result in a final list of some 1600 relevant items over the entire five-year period.

3.21 The Ombudsman accepts that examining such a this list with a view to ascertaining that it does not include confidential data is likely to require a considerable amount of work.

3.22 However, the Ombudsman continues to believe that OLAF has not established that the work thus required would be disproportionate. This view is based on the following reasons.

3.23 First, the Ombudsman remains unconvinced that producing a version of the relevant list that does not disclose any confidential information is as cumbersome and time-consuming as OLAF claims. OLAF has made it clear that as regards the list it provided (which covers the last three months of 2004), it considers that limiting this list to those items matching the complainant's request would be more burdensome than providing lists that also indicate correspondence with other authorities in Germany, since it would then be necessary for a staff member to review each item on the list and manually delete all entries which do not involve correspondence to the German federal government and the governments of the German Länder. Even on the assumption that such a manual elimination of non-relevant items of correspondence were needed (which appears doubtful, see point 3.19 above), it would seem obvious that the relevant work, tedious though it would no doubt be, would require no more than a few seconds per item. As a matter of fact, all that would need to be done is to ascertain in the last of the four boxes set out on the relevant list whether the sender or addressee of a given letter was a ministry or minister of the federal government or of one of the Länder governments in Germany and, in case of a negative finding, delete the entry concerned. It is further obvious that this work could be carried out by a person not disposing of any further knowledge of the contents of the correspondence concerned. However, OLAF has also submitted that it needs to check all items on the list in order to ensure compliance with professional secrecy, data protection and national judicial secrecy requirements. In the case of the list that was disclosed, this meant that OLAF had to check all 300 entries rather than the 60 that were relevant. If doing so is - as OLAF suggested - less burdensome than removing the items that are not relevant, it is difficult to avoid concluding that the relevant examination cannot be very time-consuming and that the preparation of the relevant lists cannot be overly burdensome, even if this list were to comprise more than a thousand items.

3.24 Second, OLAF has stressed that whereas it considers that complying with the complainant's requests in their entirety would require a disproportionate effort on its part, it remains ready to assist the complainant on condition that he narrowed down his request. OLAF insisted that the complainant's suggestion that it could provide in instalments the information he was looking for was not acceptable, since this would not affect the overall amount of work involved. It is certainly true that the complainant continues to insist that OLAF should provide him with all the information he required. However, spreading the work involved over a longer period of time would, in the Ombudsman's view, clearly have made it easier for OLAF to comply with the complainant's wishes. The Ombudsman, therefore, continues to believe that the suggestion made by the complainant was both sensible and constructive and that it needs to be taken into account when examining whether dealing with his request would have required a disproportionate effort on the part of OLAF.

3.25 Third, regard needs to be had to the fact that the possibility for an administration to invoke the fact that dealing with a request would entail an unreasonable amount of administrative work is, as the Court of First Instance held in its judgment in Case T-2/03, only applicable in "exceptional circumstances". The Court also confirmed that it is the institution wishing to rely on this exception that has to bear the burden of proof in this respect(16). In the Ombudsman's view, OLAF has not established that providing the complainant with the information he has requested would indeed necessitate an unreasonable, disproportionate amount of work on its part. Even though the number of the documents concerned by this request would appear to be considerable, it should not be forgotten that OLAF does not have to decide whether access can be granted to these documents but simply whether the description of the subject of the items of correspondence concerned that is available on the 'Adonis' system contains any confidential data that would need to be removed before the list can be disclosed or, in exceptional cases, whether a document is so sensitive that it cannot be mentioned at all on this list. To the extent that this can be deduced from the information that is set out in the list that was made available, it would appear that the amount of information per item that needed to be checked by OLAF was very limited(17).

3.26 Fourth, and most importantly, if citizens are to be able to make use of their rights under Regulation 1049/2001 they need to know what documents are in the possession of the administration concerned. As long as there is no easily accessible register listing these documents or as long as this register is not sufficiently complete, the institutions and bodies of the EU must, therefore, be prepared to provide citizens with ad-hoc lists of the documents in their possession, even if the preparation of these lists constitutes a considerable burden on them. In this context, the Ombudsman wishes to confirm that he agrees that OLAF's resources must primarily be directed towards the core task to which it referred. However, this does not mean that OLAF should be relieved of its duty, following from its status as part of the Commission, to comply with the obligations arising under Regulation 1049/2001.

3.27 The Ombudsman considers that one further issue should be addressed in this context, even though it is not relevant for dealing with the present case. OLAF has, on more than one occasion, referred to the fact that the Ombudsman himself does not have an easily accessible register of the documents in his possession. The Ombudsman considers it useful to point out that such a register of incoming and outgoing correspondence does indeed exist in the European Ombudsman's Office and is maintained and up-dated in permanence. This register contains links to the digitalised version of all those documents sent or received since 2002. If this register is still not directly available through internet it is exactly because the technical requirements which need to be put in place, with an eye to guaranteeing the confidentiality of certain documents, are still being developed. In the meantime, were any citizen to wish to be informed of the documents sent or received by the Ombudsman's and in its possession, the Ombudsman's administration would be in a position to give the list of that correspondence and of the specific documents concerned. Wherever such a request would be made, the Ombudsman's services would do their utmost to give to citizens as promptly as possible the information requested. The Ombudsman's office also disposes of a complete register of all correspondence and documents sent out, received or produced in the framework of his inquiries. That register of complaint and inquiry related documents is fully digitalised and encompasses all the inquiries of the Ombudsman since its creation in 1996. The Ombudsman would like to underline that his own administration must obviously be subject to the same (if not more demanding) requirements as regards transparency and service-mindedness that he expects to be respected by all other Community institutions and bodies.

3.28 I n view of these considerations, the Ombudsman takes the view that OLAF has not established that preparing the list requested by the complainant would constitute a disproportionate burden.

3.29 In these circumstances, the Ombudsman considers that OLAF has failed to provide a valid reason for not complying with the complainant's request for access to a complete list of the correspondence that it had had with services of the German federal government and of governments of the German Länder in 2000, 2001, 2002, 2003 and 2004. This constitutes a further instance of maladministration.

4 Conclusion

4.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

According to Article 23 of the European Code of Good Administrative Behaviour(18), requests for public access to documents shall be dealt with in accordance with the rules and principles set out in Regulation 1049/2001.

As regards procedural issues, the Ombudsman considers that OLAF acted incorrectly, given that, (1) in its first reply to the complainant, it failed to inform the complainant of his right to make a confirmatory application, (2) contrary to the Commission's implementing provisions, the person who dealt with the initial request for access had also decided on his confirmatory application; (3) it indicated to the complainant, after having received the latter's confirmatory application, that further letters would not be replied to; and (4) its reply to the complainant's confirmatory application for access did not inform him of his right to bring an action or to make a complaint to the Ombudsman. These are instances of maladministration. The Ombudsman considers it important to underline that his conclusion would have been different as regards items (1), (2) and (4) if OLAF had made it clear from the very beginning that it considered the complainant's request to be a request for information and not as a request for access under Regulation 1049/2001.

As regards the substance of the case, the Ombudsman considers that O LAF has failed to provide a valid reason for not complying with the complainant's request for access to a complete list of the correspondence that it had had with services of the German federal government and of governments of the German Länder in 2000, 2001, 2002, 2003 and 2004 . This constitutes a further instance of maladministration.

4.2 Article 3(7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned.

4.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work. He added that special reports should, therefore, not be presented too frequently, but only in relation to important matters where the Parliament was able to take action in order to assist the Ombudsman(19). The Annual Report for 1998 was submitted to and approved by the European Parliament.

4.4 As mentioned above, the present case concerns a request for access to a list of documents. Important though this issue may be for the complainant, the Ombudsman takes the view that the likely consequences of the maladministration identified in the present case are not of a sufficiently serious nature so as to justify the submission of a special report to the European Parliament.

4.5 The Ombudsman will, therefore, send a copy of this decision to OLAF and include a short summary in the annual report for 2007 that will be submitted to the European Parliament. The Ombudsman thus closes the case.

4.6 The Director-General of OLAF will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 L 145, p. 43.

(2) Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public. This Code was added as an Annex to the Commission's Rules of Procedure (OJ 2000 L 308, p. 26).

(3) OJ 2001 L 345, p. 94.

(4) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(5) The draft recommendation is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(6) Details are set out in the draft recommendation itself which is available on the Ombudsman's website.

(7) Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 99.

(8) OJ 2001 L 145, p. 43.

(9) Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public. This Code was added as an Annex to the Commission's Rules of Procedure (OJ 2000 L 308, p. 26).

(10) Available on the website of the European Ombudsman (http://www.ombudsman.europa.eu).

(11) OJ 2001 L 345, p. 94.

(12) The provision refers to "the Director of OLAF". Article 12 of Regulation (EC) No 1073/1999 of the European Parliament and the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) makes it clear that the person referred to is the head of OLAF who, in accordance with the nomenclature used by the Commission, uses the title "Director-General".

(13) Both documents are available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(14) This issue of principle has been raised in a recent complaint against the Commission (complaint 3208/2006/GG) that was submitted by Statewatch, an NGO from the United Kingdom. The inquiry into this case is still pending.

(15) Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121.

(16) Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraphs 103 and 112.

(17) To quote an example, this list contains a reference to a letter from the "Bundeszentrum [in effect, the correct title would be 'Bundeszentrale'] für Politische Bildung", a public body whose mission it is to further citizens' awareness and knowledge of political matters. The subject of this letter (which is clearly not relevant for the complainant's request) is described as follows: "'Aus Politik und Zeitgeschichte', B 44/20[0]4". In other words, this description is limited to a simple reference to a publication that the German authority presumably sent to OLAF. It is highly likely that this is the information that is also to be found in the Adonis system itself.

(18) Available on the website of the European Ombudsman (http://www.ombudsman.europa.eu).

(19) Annual Report for 1998, pages 27-28.