To Mr Constantinos Manolopoulos Director ad interim European Union Agency for Fundamental Rights

 

Dear Mr Manolopoulos,

I am writing to seek a solution in this case concerning a request for public access to documents related to the conditions in the Pournara and the Kofinou reception centres in Cyprus.

The access request originally concerned 17 documents. FRA granted (partial) access to nine documents and refused to give access to the remaining eight documents in their entirety, based on several exemptions under Article 4 of Regulation 1049/2001. The complainant challenged the decision to deny access to eight documents in full, arguing that, in light of the poor conditions in the two reception centres at issue, there is an overriding public interest in disclosure. Two of these documents (‘documents 3 and 4’) originate from the European Border and Coast Guard Agency (Frontex) and the European Union Agency for Asylum (EUAA) respectively.

My inquiry team has now reviewed the eight documents at issue as well as the additional comments provided by FRA in reply to the complaint. For the reasons set out below, I consider that FRA should give wide public access to those parts that are covered by the access request.

Specifically, document 3 is the Frontex Fundamental Rights Officer’s Report to its management board for the period January to May 2022. The report is not limited to Frontex’s activities in Cyprus and thus appears to fall largely outside the scope of the complainant’s access request.

In its reply to the complaint, FRA acknowledged this and, following its own renewed assessment that took into account additional comments from Frontex, proposed to give wide access to the relevant part of this document. As regards some information, the FRA maintained that disclosure would undermine the public interest as regards public security.

I welcome FRA’s readiness to disclose the majority of the relevant part of this document, which seems appropriate. Following our review of the document, the application of the need to protect public security to the information indicated in FRA’s reply does not appear manifestly unfounded. I also note that this exception cannot be set aside by an overriding public interest.

Furthermore, document 4, a draft version of the EUAA’s multiannual work programme for the years 2024 to 2026, was withheld by FRA so as to protect the EUAA’s ongoing decision-making. FRA has now clarified that it considers this document to fall largely outside the scope of the access request. FRA added that the EUAA has, in the meantime, published the final version of its work programme.[1] It considered that this should satisfy the access request.

Following our inspection, I agree that, as this document is not limited to the EUAA’s work in Cyprus, only very limited parts appear to be covered by the complainant’s access request. In addition, the publication of the final version of this document means that the EUAA’s decision-making process has ended. Given that the relevant part remained unchanged in the final version, I consider that the EUAA’s decision-making can no longer be deemed to be at risk. Accordingly, the relevant part should now be disclosed to the complainant.

Concerning the refusal to disclose the remaining six documents, the FRA relied on the need to protect its decision-making.

In this regard, I note that documents 5 and 5a are draft chapters of FRA’s Fundamental Rights Report 2022. That report was disclosed to the complainant in full and is also publicly available on the FRA website.[2]

Both draft chapters appear to contain only very limited information[3] on the reception centres at issue. In addition, it seems that only some minor editorial changes were made to this text in the final version of the report (including as regards the footnotes indicating the sources of the information). It is not clear how disclosure of this information could seriously undermine FRA’s decision-making.

While the FRA has already disclosed its final report (document 16), I do not agree that this sufficiently addresses the complainant’s access request. Rather, if the limited information at issue in documents 5 and 5a were to be withheld, there is a risk that FRA would be perceived as concealing information, which is not the case.

In light of the above, I propose that FRA give the complainant full access to those parts of documents 5 and 5a that fall within the scope of his request.

Finally, our inspection showed that also documents 1, 7, 8 and 10, which are internal mission reports and drafts thereof, do not fall within the scope of the complainant’s access request in their entirety. In particular, not all information contained therein concerns the reception centres at issue and/or the conditions in these centres.

As regards those parts that can be considered to be covered by the access request, I note that these mainly consist of factual information (rather than opinions), some of which is rather general in nature, and that the information in the draft versions of document 8 (documents 1 and 10) largely overlaps with the information in the final version. In addition, some of the relevant information was made public elsewhere, including by FRA itself (as indicated in its reply to the complaint).

The fact that the reports at issue were intended for internal use is not in itself a reason for non-disclosure under Regulation 1049/2001. It is only to the extent that the withheld information in these documents was obtained from third parties and that disclosure would likely prevent these third parties from sharing similar information in future could the exception that protects decision-making be reasonably invoked.

In light of all this, my proposal for a solution is that FRA should re-consider its position on the complainant’s request for public access to documents, with a view to granting significantly increased access to the documents at issue.

I would be grateful to receive your reply to my proposal by 8 April 2024.

At this stage, the solution proposal is confidential. My inquiry team has, however, informed the complainant of my intention to seek a solution in this case.[4] Please note that our usual practice is to send a copy of the solution proposal to the complainant for comments, together with a copy of the institution’s reply to it, once we have received that reply. I also intend to publish the solution proposal and the reply on my website then. I would therefore ask FRA to inform my Office if any information contained in the solution proposal, or in its reply, should not be shared with the complainant at that stage.[5]

 

Yours sincerely,

Emily O'Reilly 

European Ombudsman

 

Strasbourg, 07/02/2024

 

[1] See: https://euaa.europa.eu/publications/multi-annual-programming-2024-2026-work-programme-2024.

[2] See: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2022-fundamental-rights-report-2022_en.pdf.

[3] In particular, on page 12f (document 5) and page 17 (document 5a).

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

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