THE BACKGROUND TO THE COMPLAINT

1. The present case concerns applications for public access to documents, submitted to the European Commission under Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ('Regulation 1049/2001')[1].

2. The complainant is a former Commission official who submitted various complaints to the European Data Protection Supervisor (EDPS) against the Commission. He subsequently asked for access to the correspondence between the Commission and the EDPS concerning two of his complaints.

3. The complainant received the Commission's final decision on his application seven months after his initial application. He found the Commission's handling of his application unsatisfactory and complained to the European Ombudsman.

4. The complaint raises issues of timeliness regarding the handling of access applications, the applicability of Regulation 1049/2001 as regards data protection rules, and other more specific related issues. A more elaborate account of the correspondence and events linked to the complaint is set out below in paragraphs 8-16.

THE SUBJECT MATTER OF THE INQUIRY

5. The Ombudsman opened his present inquiry into the complainant's following allegations and claim:

Allegations

1. The Commission failed to handle his application for access to documents and his confirmatory application within the relevant deadlines provided for in Regulation 1049/2001;
2. The Commission gave legally incorrect and contradictory explanations concerning the applicability of Regulation 1049/2001;
3. The Commission made legally incorrect statements concerning the applicability of Article 4(1) of Regulation 1049/2001;
4. The Commission concealed the existence of certain documents exchanged in the framework of the handling of his complaint to the EDPS dated 9 March 2006 and failed to give him access to these documents; and
5. The Commission failed to grant him access to any documents related to his complaint to the EDPS dated 26 January 2005, although it was clear that such documents existed.

Claim

The complainant claims that he should be granted access to the documents he has not yet received and to all further correspondence between the Commission and the EDPS in relation to his complaints to the EDPS.

THE INQUIRY

6. On 27 March 2007, the Ombudsman asked the Commission for an opinion on the complainant's above-mentioned allegations and claim. Due to an attempt, by the complainant, to seek a global solution to his numerous disputes with the Commission, and related support for this attempt by the European Ombudsman, the latter suspended his handling of all complaints from this complainant for a period of several months in 2007. The Commission finally sent its opinion on 9 January 2008. The opinion was forwarded to the complainant, who sent his observations on 14 February 2008.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

7. For the purpose of the assessment below, it is useful to set out the following overview of facts and correspondence.

8. On Friday 28 July 2006, the complainant made a request under Regulation 1049/2001 for access to all correspondence between the Commission and the European Data Protection Supervisor (EDPS) concerning two complaints he submitted to the EDPS on 26 January 2005 and 9 March 2006 respectively.

9. The Commission registered the request on Monday 31 July 2006 and sent the complainant an acknowledgment of receipt on the same day.

10. On 1 September 2006, the Commission's Office for the Administration and Payment of Individual Entitlements (PMO) sent a holding reply, explaining that the handling of the complainant's request had been delayed due to the limited staff available during the summer holiday break. In its reply of 7 September 2006, the PMO mentioned the dates on which letters were exchanged with the EDPS concerning the complainant's complaints. In this regard, it explained that no access under Regulation 1049/2001 could be granted to these letters, since the exception laid down in Article 4(1)(b) of this Regulation applied[2].

11. In the meantime, after receiving no reply from the Commission within the time-limit foreseen in Regulation 1049/2001, the complainant had sent an e-mail on 6 September 2006, submitting a confirmatory application for failure to reply to his initial application[3]. The Commission's Secretariat-General informed the complainant that a holding reply had been sent to him by the PMO on 1 September 2006 and sent him an electronic copy thereof. It further asked whether he wanted to maintain his confirmatory application for failure to reply or whether he would prefer to wait for the substantive reply instead. The complainant replied on 19 September 2006, contesting the PMO's reply. On 21 September, the Secretariat-General registered this e-mail as a confirmatory application.

12. Since the complainant's request concerned access to exchanges between the EDPS and the Commission regarding a pending complaint, the Secretariat-General consulted the EDPS' office with regard to its disclosure policy relating to pending cases. The time limit for replying to the confirmatory application was extended on 12 October 2006 until 6 November 2006, on the basis of Article 8(2) of Regulation 1049/2001[4]. Pending a reply from the EDPS, a holding reply was sent to the complainant on 6 November 2006.

13. On 28 July 2006, that is, on the same date that he submitted his initial application to the Commission, the complainant had apparently made a request for access to the EDPS' file concerning his complaint.

14. On 30 October 2006, the EDPS replied to the complainant's above request for access. The EDPS took the view that, since Regulation 1049/2001 governs the right of public access to documents, a request under this Regulation would only result in a restricted disclosure in order to protect the privacy of an individual to whom the requested documents relate. He therefore considered the request under Article 13 of Regulation 45/2001[5] and handled it in a way most favourable to the complainant's position. The EDPS granted partial access to the exchange of correspondence with the Commission regarding the complainant's case. The Commission shared the EDPS' approach.

15. The Commission's final reply was sent on 28 February 2007. It confirmed its view that Regulation 1049/2001 is not the appropriate instrument for granting a natural person access to documents related to proceedings concerning their personal situation. Therefore, and subject to certain restrictions, the Commission disclosed the documents to the complainant as a person concerned by the proceedings. This alternative solution enabled the Commission to grant the complainant's request without making the requested documents public, as disclosure under Regulation 1049/2001 would imply.

16. The complainant was granted access to three letters and partial access to two further letters. The parts that were blanked out concerned (a) provisional findings of the Commission's medical officer and (b) further inquiries made by the Assistant EDPS.

A. Allegation that the Commission failed to handle his application for access to documents and his confirmatory application within the relevant deadlines provided for in Regulation 1049/2001

Arguments presented to the Ombudsman

17. In support of this allegation, the complainant referred to the facts contained in the correspondence relating to this case.

18. In its opinion, the Commission responded to the allegation as follows.

19. The initial application was sent on 28 July 2006 and registered on 31 July 2006. The time limit expired on 22 August 2006. The PMO only reacted on 1 September and replied on 7 September 2006. The Commission agreed that it should have extended the time limit, pursuant to Article 7(3) of the Regulation[6], with the result that the reply would have been sent within the extended time limit, which expired on 12 September 2006.

20. The confirmatory application sent on 19 September 2006 was registered on 21 September 2006. The time limit was extended on 12 October 2006 and a further holding reply was sent to the complainant on 6 November 2006. The Commission acknowledged that its final reply of 28 February 2007 was sent well after the expiry of the time limit.

21. The Commission regretted the time it took to send a final reply to the complainant. At the same time, it pointed out that this delay was caused by the fact that, rather than denying access under Regulation 1049/2001, its services tried to find a solution which would grant the complainant the widest possible access to the requested documents.

22. In his observations, the complainant essentially maintained his allegation and rejected as unconvincing the Commission's attempt to explain the delay.

The Ombudsman's assessment

23. Regulation 1049/2001 provides that "an application for access to documents shall be handled promptly". In addition, the Regulation lays down specific time-limits for taking a decision on access applications. Initial as well as confirmatory applications, shall be dealt with within 15 working days. In both cases, the institution has the possibility to extend the time-limit by 15 working days in "exceptional cases".

24. In this case, the complainant submitted an application on 28 July 2006. Following his confirmatory application, which was timely and clear, the Commission sent him its final decision on 28 February 2007. That is seven months after the complainant's initial application.

25. It is obvious that the Commission's handling of the complainant's handling was not 'prompt' and that its replies clearly exceeded the legal time-limits laid down in Regulation 1049/2001.

26. Furthermore, the Commission has not provided valid and convincing explanations for this delay. With specific regard to the extended time-limits for reply, the Commission has made no reference to any factors that could be considered "exceptional". It is obvious that the staff shortage resulting from the Commission's annual summer holiday cannot be considered 'exceptional'. The Commission has also not demonstrated that the consultation of the EDPS was 'exceptional'. The act of consulting when handling access applications is an integrated feature of Regulation 1049/2001 and the consulting institution is obviously allowed to set a deadline for replies. This is especially so in relation to other EU public authorities which have a duty to collaborate.

27. With regard to the Commission's statement that its services attempted to "find a solution which would grant the complainant the widest possible access to the requested documents", this can only be considered as a description of the Commission's intentions. The Commission has not provided any information or explanations, pursuant to which the above statement could reasonably be understood to constitute a justification for the delays that occurred in this case.

28. In light of the above, the Ombudsman concludes that there were gross and unjustified delays in the Commission's handling of the complainant's access applications, which constituted maladministration. The Ombudsman will therefore make a critical remark below.

B. Allegations (a) that the Commission gave legally incorrect and contradictory explanations concerning the applicability of Regulation 1049/2001, and (b) that the Commission made legally incorrect statements concerning the applicability of Article 4(1) of Regulation 1049/2001

Arguments presented to the Ombudsman

29. It appears from the complaint and the complainant's subsequent observations that these allegations concern, in essence, his understanding, based on the Commission's correspondence, that the latter had the following views: (a) that disclosure of personal data under Regulation 1049/2001 renders that data public and - irrespective of whether it is the data subject who made the access request - subject to the exception on the protection of personal data; and (b) that data protection rules may apply as lex specialis[7] with respect to public access rules. Having examined the Commission's correspondence in this case, the Ombudsman considers that parts of this correspondence could indeed reasonably have been understood to convey these messages. The question is therefore whether the Commission's legal views were correct.

30. In its opinion, the Commission addressed these issues as follows.

31. The Commission did not deny that Regulation 1049/2001 may be invoked to request access to any documents held by it. Therefore, the applicability of this Regulation is not the issue. The Commission informed the complainant that, since Regulation 1049/2001 governs the public's right to have access to documents, it is not the most appropriate instrument for granting a natural person access to documents relating to his/her personal situation. The documents to which the complainant requested access could not, or could only very partially, be disclosed to the public under the provisions of Regulation 1049/2001.

32. Under these circumstances, the Commission looked for an alternative way of dealing with the complainant's request. The Commission consulted the EDPS since it was not aware of the latter's disclosure policy with regard to pending complaints. It appeared that the complainant had made a similar access request to the EDPS, who granted him full access to some documents and partial access to others. In its final decision of 28 February 2007, the Commission granted the complainant the same access as the EDPS to those documents that were in its possession.

33. In his observations, the complainant remarked that, for the applicant, it is fairly irrelevant on which legal basis access is granted to the documents concerned. What matters is that access is granted quickly. He also put forward certain arguments to why data protection rules cannot, in his view, be considered as a lex specialis in the context of the application of Regulation 1049/2001.

The Ombudsman's assessment

34. With regard to the first above-mentioned issue, the Ombudsman considers that the Commission's position cannot be considered unreasonable. The access regime laid down in Regulation 1049/2001 concerns public and not individual access to documents. The institution's decision on whether access can be granted pertains solely to the documents themselves and the situation or status of the applicant concerned is, in principle, irrelevant.

35. It is correct that, as the complainant indicates, this may produce the situation where data subjects are refused access to their own data. It is also fully understandable that this may be met with disbelief. The institution is nevertheless free to avoid using such a formalistic approach, for instance by granting individual access under other relevant legislation such as Regulation 45/2001 regarding the processing of personal data. It can do so irrespective of whether the applicant has expressly made reference to that other legislation. The institution may also, if it considers it necessary or appropriate, contact the applicant at an early stage of its examination of a complaint in order to seek his or her consent to make public the personal data specifically under Regulation 1049/2001. In the present case, the Ombudsman welcomes the fact that, notwithstanding the unacceptable delays that occurred, the Commission explored such possibilities for granting access.

36. With regard to the second above-mentioned issue, it is to be noted that, following the opening of the present inquiry, the Court of First Instance gave judgment in the case Bavarian Lager v Commission[8]. This was the first court decision examining in detail important elements in the relationship between the rules on public access to documents and data protection rules. In its judgment, the Court of First Instance found that access to documents containing personal data is governed by Regulation 1049/2001, which implies that, where personal data are transferred in order to give effect to Article 2 of this Regulation, laying down the right of access to documents for all citizens of the Union, the situation falls within the scope of that Regulation[9]. The Court also found that the mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of the persons concerned is affected[10].

37. In its opinion (finalised and sent shortly after the above-mentioned judgment), the Commission fully recognised that Regulation 1049/2001 applies to any document that it holds. Although it avoided any express reference to the above-mentioned judgment, it appears that the Commission does not deny that Regulation 1049/2001 also applies to documents containing personal data.

38. In light of the above, it appears that the basic question regarding the applicability of Regulation 1049/2001 is no longer in dispute.

39. Since the Ombudsman closes the present inquiry with suggestions for appropriate future actions by the Commission (see point E. below), in the context of which the Commission would have to take into account the above-mentioned case-law, it is not necessary to further examine this aspect of the present case. Similarly, the Ombudsman considers that, in light of the above findings which are relevant to the substance of the questions raised, it is no longer necessary to examine the issue of alleged contradictions in the Commission's correspondence.

C. Allegations that the Commission concealed certain documents and failed to grant access

Arguments presented to the Ombudsman

40. The complainant considered that the Commission concealed the existence of certain documents exchanged in the framework of the handling of his complaint to the EDPS of 9 March 2006 and failed to give the complainant access to these documents. In this context, the complainant specifically referred to a fax dated 13 September 2006 and to a letter of 18 October 2006. He also put forward that the Commission failed to grant him access to any documents relating to his complaint of 26 January 2005 to the EDPS, although it was clear that such documents existed.

41. In its opinion, the Commission, addressed these issues as follows.

42. In the PMO letter of 2 June 2006 to the Assistant EDPS, two paragraphs reflecting the provisional findings of one of the Commission's medical officers were blanked out. In the letter of 27 July 2007, from the Assistant EDPS to PMO, four small paragraphs which concerned further inquiries of the EDPS were deleted. These deletions were due to the fact that, at the time, both the medical examination of the complainant's situation and the EDPS' investigation regarding the complaint were ongoing. The Commission felt that, even if the documents were not being released pursuant to Regulation 1049/2001, disclosure of this specific information to the complainant at that stage of the proceedings would have adversely affected the conduct of those investigations.

43. With regard to documents which it allegedly failed to identify, the Commission stated that it was examining whether there were documents which fell within the scope of the complainant's request for access, which were not examined when the request was handled. If such documents were identified, the Commission would decide whether or not they should be disclosed under the provisions of Regulation 1049/2001 or, where applicable, under a privileged access legal basis. The Commission would also inform the Ombudsman of the results.

44. In his observations, the complainant maintained his allegation. He posed, in summary, the question of whether the Commission's decision to allow it more time to look for additional documents was in bad faith, or whether the alleged need to search for documents was related to the "absolute chaos" of the Commission's record-keeping.

The Ombudsman's assessment

45. The allegation here concerned contains two main elements. First, that certain documents were, as a matter of fact, not revealed to the complainant by the Commission and second, that the Commission deliberately and in bad faith concealed those (additional) documents from the complainant.

46. The Commission's opinion on these issues is considerably lacking in precision. However, it appears clear that the Commission has not accepted the complainant's allegations.

47. In the present case, the complainant expressly made reference to two important documents that he alleges were not brought to his attention (let alone provided to him). One document is a fax dated 13 September 2006; the other is a letter dated 18 October 2006. Both communications were allegedly sent by the Commission to the EDPS.

48. The Ombudsman has received no evidence of any fax of 13 September 2006, and no clear information to demonstrate that such a fax exists.

49. With regard to the communication of 18 October 2006, the Ombudsman notes that the complainant submitted a copy of such a communication in his observations in another of the Ombudsman's inquiries (723/2006/(WP)PB). The communication was made in reply to a written request, made by the EDPS by letter of 4 October 2006. One of the letters to which the complainant had access in the present case was dated 4 October 2006. Both this letter and the above-mentioned letter of 18 October 2006 carry the same reference number. After studying these letters, there appears to be no scope for doubt that the letter of 18 October 2006 was a letter made in reply to the letter of 4 October 2006. It remains undisputed, however, that the letter of 18 October 2006 was neither referred to nor otherwise dealt with in the Commission's decision of 28 February 2007 on the complainant's confirmatory application in the present case.

50. With regard to access applications that concern a category of documents, it is, in principle, good administration for the institution to ensure that its decision on the access application (be it initial or confirmatory) includes documents that are obviously covered by the application. This applies even when the documents in question were added to the file/record subsequent to the application but before the institution's relevant decision to either grant or refuse access. It seems beyond reasonable doubt that the letter of 18 October 2006 from the EDPS to the Commission constituted such a document. The Commission was therefore under an obligation to include this document in its examination regarding possible disclosure. Its failure to have done so constitutes an instance of maladministration and the Ombudsman will make a critical remark below.

51. With regard to the question of whether the Commission deliberately and in bad faith concealed the existence of the letter of 18 October 2006 (and, according to the complainant, other documents for which there is no evidence in the present case), the Ombudsman considers that he has not received information or evidence that would unequivocally demonstrate the existence of the alleged bad faith. The Ombudsman recalls, however, that the Administration must not only act in good faith, but must also act in such a way that a reasonable person would not, in the circumstances of the case, be led to form the impression that the acts concerned were tainted by bad faith. In the present case, and taking into account that the complainant has several ongoing disputes with the Commission, it was not unreasonable for the complainant to form such an impression. In light of the critical remark announced in paragraph 50 above, the Ombudsman does not consider it necessary, however, to issue a separate remark regarding this aspect of the case.

D. Claim that the Commission should grant the complainant access to the documents he has not yet received and to all further correspondence between the Commission and the EDPS relating to his complaints to the EDPS

52. The Ombudsman notes that he limited his inquiry (and informed the complainant accordingly in due course) to the correspondence existing at the time of the Commission's decision of 28 February 2007. He understands, however, that the complainant would like to be granted access to the entire correspondence between the Commission and the EDPS relating to the above-mentioned matter, including any correspondence that may have been produced subsequent to the opening of the present inquiry.

53. The Ombudsman has examined the usefulness of a proposal for a friendly solution in this case, based on the above findings of maladministration. However, he does not consider it appropriate to take this step, for the following reasons. A relevant proposal for a friendly solution would, in the first place, consist of a suggestion to the Commission that it provide an overview of all the correspondence referred to in the complainant's access request and (re)consider the possibility of granting access. As noted further above, the Commission has already, in principle, committed itself to re-examining the issue regarding documents that were not identified and to reconsider disclosure. Given the time that has elapsed and the new case-law referred to under point B. above, such re-examination will provide an opportunity for the Commission to re-consider the relevant parts of its initial decision on the complainant's confirmatory application.

E. Conclusions

On the basis of his inquiries into this complaint, the Ombudsman makes the following critical remarks:

1. In light of his findings in relation to allegation 1, the Ombudsman concludes that there were gross and unjustified delays in the Commission's handling of the complainant's access applications. This constituted maladministration.
2. With regard to access applications that concern a category of documents, it is, in principle, good administration for the institution to ensure that its decision on the access application (be it initial or confirmatory) includes documents that are obviously covered by the application. This applies even when the documents in question were added to the file/record subsequent to the application but before the institution's relevant decision to either grant or refuse access.

It seems beyond reasonable doubt that the letter of 18 October 2006 from the EDPS to the Commission constituted such a document. The Commission was therefore under an obligation to include this document in its examination regarding possible disclosure. Its failure to have done so constitutes an instance of maladministration.

The complainant and the European Commission will be informed of this decision. The Commission will be expressly reminded of its commitment referred to in paragraph 53 above.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 19 February 2009

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[1] OJ 2001, L 145, p. 43.

[2] The provision provides as follows: "The institutions shall refuse access to a document where disclosure would undermine the protection of: (...) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."

[3] Regulation 1049/2001 provides, in Article 7(2), that "In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position."

[4] Article 8(2) of Regulation 1049/2001 provides that "In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

[5] Regulation 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p. 1. Article 13 of the Regulation concerns the right of data subjects to have access to their data.

[6] Article 7(3) of Regulation 1049/2001 provides that "[i]n exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

[7] According to the principle of lex specialis, a law governing a specific subject matter (lex specialis) is not overridden by a law which only governs general matters (lex generalis).

[8] Case T-194/04 Bavarian Lager v Commission [2007] ECR II-4523.

[9] See paragraphs 100, 107 and 138 of Case T-194/04 Bavarian Lager v Commission, cited above.

[10] See paragraph 123 of Case T-194/04 Bavarian Lager v Commission, cited above.