Made in accordance with Article 2(10) of the Statute of the European Ombudsman[1]

Background to the complaint

1. When people who seek asylum arrive in the EU, Member States are required to provide them with “reception conditions”. These include food, clothing, accommodation, as well as access to healthcare and to education for minors. In line with the 1951 Geneva Convention,[2] reception conditions play a crucial role in ensuring that refugees have access to dignified living conditions.

2. However, in recent years, the deteriorating reception conditions in some migration management facilities throughout the EU have been the subject of increased concern to civil society and human rights institutions.[3] Facilities located in the Greek Eastern Aegean islands have been particularly criticised.[4] The European Union Agency for Asylum (EUAA) is present in these facilities, where its experts help Greek authorities in providing reception conditions in line with the Common European Asylum System (CEAS).[5]

3. In October 2023, the complainant made a request[6] for public access to documents held by the EUAA on reception conditions in the Eastern Aegean islands. The request covered “all documents (including but not limited to reports, mission reports, notes from field visits, assessments, meeting minutes, email exchanges with Greek authorities and/or other EU institutions, including attachments) pertaining to and/or mentioning reception conditions in camps and/or detention centres on the Greek islands of Lesvos, Samos, Chios, Kos and Leros”, for the period 1 May 2023 - 9 October 2023.

4. The EUAA identified 133 documents as falling within the scope of the public access request, namely:

• 130 EUAA documents (“Category I” documents). These consist mostly of reports from field personnel, as well as a few email exchanges (11 documents about all islands, 31 about Lesvos, 15 about Chios, 29 about Samos, 25 about Kos, 19 about Leros);
• Two communications with the European Commission (“Category II” documents);
• The Ombudsman decision in case OI/3/2022/MHZ (“Category III” document).

5. The EUAA refused access to all documents except the Ombudsman’s decision.[7] In refusing access to the other 132 documents, the EUAA relied on the need to protect the public interest as regards public security[8], personal data[9], and its ongoing and future decision-making[10].

6. In January 2024, the complainant asked the EUAA to review its decision (by making a ‘confirmatory application’) and to provide (partial) access to the documents with the exception of personal data. He also asked the EUAA to provide him with a list of the documents at issue.

7. The EUAA maintained its decision to refuse access. However, it provided the complainant with a list of the documents (detailing also some of the shortcomings in reception conditions identified in the documents).

8. Dissatisfied with how the EUAA handled his access request, the complainant turned to the Ombudsman in April 2024.

The inquiry

9. The Ombudsman opened an inquiry into how the EUAA had dealt with the complainant’s request for public access, including the EUAA’s refusal to disclose the documents at issue based on the need to protect public security and its decision-making.

10. In the course of the inquiry, the Ombudsman inquiry team inspected the 132 documents at issue in the complaint as well as the replies from the third parties, which the EUAA had consulted on the access request and which had objected to disclosure. The EUAA also provided the Ombudsman with additional comments.

Arguments presented

11. In its confirmatory decision, the EUAA argued that it was not possible to give public access to the requested documents for the following reasons:

i. Protection of the public interest as regards public security: The documents contain sensitive operational information, for example, about the working procedures and modalities of the Greek authorities and their cooperation with the EUAA. Disclosure would seriously jeopardise the reception procedures at issue and violate the trust of the Greek authorities, thus undermining also the EUAA’s operations in Greece. This would in turn affect the implementation of the CEAS in Greece, with possible repercussions on the Member State’s internal security. The EUAA added that, as the operational information is inextricably linked with the information on reception conditions contained in the documents, the exception for the protection of public security must be applied to the documents in their entirety.

ii. Protection of the decision-making process: The documents are internal documents used for communication purposes within the EUAA (Category I) or between the EUAA and the Commission (Category II). Disclosing Category I documents would have a detrimental effect on the information received by the EUAA from its staff members as well as from the Greek authorities, thus impairing the EUAA’s ability to make informed decisions. Disclosure could also expose the EUAA and Greek authorities to undue external influence. As regards documents pertaining to Category II, the EUAA argued that disclosure would reveal preliminary views and information that was still pending confirmation when those documents were drafted. Disclosure of such non-final exchanges could ultimately result in civil servants’ self-censorship in the future.

12. When assessing the need to protect its decision-making process, the EUAA also concluded that there was no overriding public interest in disclosure.

13. As regards the possibility to provide partial disclosure, the EUAA argued that even in the theoretical scenario where limited access could be granted, the documents would be rendered meaningless due to the amount of redactions needed. Partial disclosure would thus put a disproportionate administrative burden on the EUAA compared to the benefits the complainant would draw from it. In the additional views sent to the Ombudsman in May 2024, the EUAA added that the (dis)proportionality of such burden is to be assessed in light of the comparatively limited resources, structures and tools that EU agencies have. The Agency further emphasised that it nonetheless provided the complainant with a detailed list of reception conditions mentioned in each document.

14. The complainant, in his confirmatory application as well as in his complaint to the Ombudsman, presented the following arguments:

i. Protection of the public interest as regards public security: The EUAA failed to demonstrate a specific and actual risk to public security, as well as the causal link between that risk and disclosure of the documents. Because the access request focused on reception conditions, which normally do not constitute operationally sensitive information, the complainant considered that the EUAA may have committed a manifest error by invoking the public security exception in relation to the 132 documents in their entirety. 

ii. Protection of the decision-making process: The EUAA failed to explain how disclosure of each document would foreseeably and seriously undermine its decision-making process. For the complainant, the fact that the documents are internal documents about the daily work of EUAA personnel is not relevant, because the purpose of Regulation 1049/2001 is to enable public scrutiny of the daily work of EU institutions and bodies.

15. As regards decision-making, the complainant argued that transparency about reception conditions in EU-funded migration facilities constituted an overriding public interest, especially in light of the concerns raised over potential rights violations in these facilities.

16. Moreover, on a procedural level, the complainant argued that the EUAA had failed to provide partial access to the documents on largely administrative grounds, without providing evidence of the disproportionate nature of the burden associated. He stated that the EUAA’s ability to describe reception conditions in the list of documents showed that there was meaningful information that could be (partially) released.

The Ombudsman's assessment

General considerations

17. When an EU institution is asked to disclose a document, it must conduct an individual assessment of whether the document is covered by an exception to the right of public access to documents.[11] Exceptions to public access must be applied as strictly as possible, [12] and only to those (parts of the) documents that are concerned by it. [13] When refusing access, EU institutions must explain how disclosure of the relevant document could specifically and actually undermine the interest protected by the exception on which it is relying.[14]

18. The EUAA refused access to the documents based on the need to protect the public interest as regards public security and on the need to protect its decision-making, arguing that the exceptions invoked “apply to essentially the entire contents of the [132] documents”. In explaining the reasons for which public access must be refused, the EUAA put forward the exact same arguments for 130 out of the 132 documents.[15]

19. As a preliminary remark, the Ombudsman notes that the documents identified are diverse in terms of nature, content and authors.[16] This diversity is not captured in the EUAA’s confirmatory decision, where the various 130 documents under Category I are approached “as a whole”. It is not readily clear why similar general considerations would apply to all those documents, nor, if that was the case, whether and how the EUAA established, for each document, that these general considerations are applicable.

20. An assessment of the application of the relevant exceptions to the documents is provided below. For greater clarity, the Ombudsman inquiry team has differentiated between four types of documents for the purposes of this solution proposal:

i. Documents offering a general overview of reception conditions. This category includes two quarterly country reports,[17] as well as 35 reports from Field Support Officers.[18]

ii. Activity reports from individual staff members. This category includes nine individual reports from staff located in the headquarters,[19] as well as 82 individual reports from staff operating in Eastern Aegean facilities, mostly assistants.[20]

iii. EUAA email exchanges.[21]

iv. EUAA-Commission email exchanges. This category includes two email exchanges between the EUAA and the European Commission in relation to a ‘Touch base’ meeting that took place in June 2023.[22]

21. The use of examples below is not exhaustive and it is for the EUAA to take account of the Ombudsman’s assessment as regards all of the documents at issue.

The public interest as regards public security

22. As regards public security, the EU institutions enjoy a wide margin of discretion when determining whether disclosing a document would undermine the protection of this public interest. The Ombudsman’s role in this regard is thus limited to determining whether there has been a manifest error of assessment. [23]

23. The EUAA argued that disclosure of the documents or parts thereof would reveal sensitive operational information about the working procedures and cooperation of Greek authorities with the EUAA. Disclosure of the document would violate the trust of the Greek authorities, and thus hamper EUAA operations in Greece and thus the implementation of the Common European Asylum System.

24. The Ombudsman does not take issue with the EUAA’s application of this exception to (parts of) individual reports from staff located in headquarters (documents 3 to 11). These staff members are involved in strategic planning activities and sometimes provide details about these activities in their reports. Nonetheless, the Ombudsman considers that not all parts of these reports can be considered to be covered by the exception on public security. For instance, information about strategic planning activities and information about reception conditions are covered in different sections or sub-sections. Such information about reception conditions does not appear sensitive, as it mostly refers to elements already reported in the media (shortage of medical staff and centres running over-capacity, lack of interpreters, etc.).[24] Therefore, it seems that it is possible to disentangle sensitive operational information from information about reception conditions and therefore to provide partial access to the documents.

25. As regards the other documents, they do not seem to contain, at first sight, sensitive operational insights. For instance, quarterly country reports (documents 1 and 2) mainly provide information about activities foreseen under the EUAA-Greece Operational Plan measure EL-REC 2. These activities are part of the EUAA Reception Operational Response Catalogue and of the official Operational Plan and thus do not appear to be sensitive. Likewise, large parts of the 35 Field Support Officers reports, such as the overall capacity of facilities, the number of arrivals, the number of staff, the situation in each facility, challenges and good practices, do not appear sensitive. Most of this information is in fact already public and can be found in reports by other stakeholders present in Greece.[25] It is thus not readily clear how disclosure of these documents could actually and specifically undermine that protected interest.

26. The same observation applies to the four emails and to the 82 individual reports from assistants deployed in Eastern Aegean facilities. Most of the contents of these emails seems to be publicly known,[26] possibly outdated, or not sensitive (interpretation, communication with residents, arrivals and departures, water shortages, etc.). As regards the 82 individual reports, many of these are very succinct and general in nature.

27. In sum, the Ombudsman takes the view that the EUAA has applied the exception on public security too broadly. The fact that a document relates to migration and contains information from staff working with national authorities as such does not suffice to demonstrate a specific and actual risk to public security, as otherwise this would imply that most documents about field operations could not be disclosed. The Ombudsman thus considers that the EUAA was manifestly wrong in applying the exception on public security to the extent it was done.

Decision-making process

28. The second exception invoked by the EUAA in refusing disclosure relates to the protection of its ongoing decision-making process. To rely on this exception, EU institutions must show that disclosure would seriously undermine their decision-making process - or, in other words, that it would have a substantial impact on the said process.[27]

29. The EUAA has argued that because the documents are internal and related to preliminary discussions of evolving issues, their disclosure would impair its “free space to think” and prejudice its trust-based relationship with the Greek authorities and the Commission. Moreover, the EUAA has argued that disclosure of Category I documents could open up the Agency and Greece “to undue external influence in the related decision-making process”.  

30. As regards the first argument, which is in essence that disclosure of the documents would prejudice the ability of the EUAA to make informed decisions in the context of its deployment in Greece, the Ombudsman notes that this country operation is indeed ongoing. However, EU case law makes it clear that the mere fact that a decision-making process is ongoing[28] or that documents are of a preliminary nature,[29] is not sufficient to refuse disclosure. Therefore, the internal or preliminary nature of the documents as such is not sufficient to demonstrate that there is a foreseeable risk that the decision-making process would be seriously undermined.

31. The review of the documents reveals that many of these contain information that is general in nature (capacity, arrivals, nationalities, new births, etc.), and is often reported on an ex-post basis. For instance, the events on which Field Support Officers regularly report (ranging from job fairs to visits from Greek officials and monthly verification exercises) are already well in the past when EUAA staff reports on them. Other issues of a more recent nature seem to be well known to the public and especially to civil society organisations - this is the case, for instance, of the shutdown of the Greek Asylum Service database,[30] the Greek authorities’ decision to exclude some categories of people from food distributions, [31] or of the lack of caregivers for unaccompanied minors.[32] It is therefore not clear how disclosure of such information would seriously undermine the EUAA’s decision-making process. In fact, very similar information about conditions in Greek migration facilities seems to have already been disclosed by the Commission in the context of other public access request(s).[33]

32. The second argument of the EUAA, namely that disclosure of Category I documents would expose the EUAA to external influence, is vague and does not mention the nature nor the source(s) of that pressure. The Ombudsman therefore finds that the explanations provided by the EUAA are not tangible enough to demonstrate that disclosure would increase the external pressure to which the Agency is presumably exposed so as to substantially affect the decision to be taken. [34]

33. To conclude, the refusal to disclose (parts of) a document must be related to its actual content. For what concerns the documents at issue in this access request, there are only very limited parts (mostly related to management issues) where the Ombudsman understands that full disclosure could undermine the EUAA’s relationship with the Greek authorities, thus affecting deployed staff’s frank feedback and the EUAA’s decision-making process. These elements, however, appear to be present only in a limited number of documents, and represent a small fraction of these documents’ content. Therefore, the Ombudsman does not find the extent of the EUAA’s application of the exception on decision-making to be reasonable.

Overriding public interest

34. When EU institutions consider that disclosing a document would undermine their decision-making process, they must balance the protection of that particular interest against the public interest in the document being made accessible. EU institutions should always seek to identify whether there is an overriding public interest in disclosure.

35. The EUAA’s confirmatory decision merely states that an overriding public interest could not be identified. The Agency did not explain why that is the case. Nor has it engaged with the argumentation put forward by the complainant, which emphasised the importance of transparency about reception conditions in EU-funded migration facilities in light of concerns raised over potential rights violations.

36. In a previous inquiry that focused precisely on the centres at issue in this complaint,[35] the Ombudsman emphasised the importance of respect for fundamental rights in EU-funded migration management facilities. On that occasion, the Ombudsman also called for greater transparency around these facilities, as such transparency enables civil society to monitor the situation and hold the relevant actors to account. Although the substantive list of documents provided by the EUAA to the complainant is highly commendable, it cannot replace the disclosure of documents if warranted.[36]

37. Therefore, should the EUAA consider, when replying to this solution proposal, that some redactions are required to protect its decision-making process, the Ombudsman urges the Agency to thoroughly balance this interest against the public interest mentioned above.

38. In light of all this, the Ombudsman considers that wide (partial) access should be given to the documents at issue.

The proposal for a solution

Based on the above findings, the Ombudsman proposes that the EUAA should reconsider its position on this public access request, with a view to giving significantly increased public access to the documents at issue.

The EUAA is invited to inform the Ombudsman by 3 October 2024 of any action it has taken in relation to the above solution proposal.

N.B. Some parts of the solution proposal are confidential and have been removed.

Emily O'Reilly
European Ombudsman

Strasbourg, 03/07/2024

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] Convention relating to the Status of Refugees, available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees

[3] In the case of Greece, see for instance the 2021 report of the Greek National Commission for Human Rights, available at: https://ennhri.org/wp-content/uploads/2021/07/Greek-National-Report.pdf ; or relevant press releases from the UNHCR: https://www.unhcr.org/news/news-releases/unhcr-alleviating-suffering-and-overcrowding-greek-islands-reception-centres

[4] See for instance: https://www.lemonde.fr/en/international/article/2023/10/07/refugee-camps-on-greek-islands-are-once-again-overcrowded_6155562_4.html

[5] EUAA-Greece Operational Plan 2022-2024, Measure EL-REC 2, actions EL-REC 2.0 (“Support to Reception governance, strategic planning, quality and procedures”) and EL-REC 2.1 (“Support to first- and second-line reception”). Available at: https://euaa.europa.eu/sites/default/files/EL_OP_amendment_3_FINAL.pdf

[6] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001R1049.

[7] The Ombudsman’s decision is publicly available at: https://www.ombudsman.europa.eu/en/decision/en/170792

[8] In accordance with Article 4(1)(a), first indent of Regulation 1049/2001.

[9] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[10] In accordance with Article 4(3), first subparagraph of Regulation 1049/2001.

[11] Judgement of 1 July 2018, Sweden and Turco v Council, Joined Cases C-39/05 and C-52/05 P, para 33, available at: https://curia.europa.eu/juris/liste.jsf?num=C-39/05&language=en

[12] Judgement of 1 February 2007, Sison v Council, Case C-266/05 P, para 63, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-266/05%20P

[13] Sweden and Turco v Council, Joined Cases C-39/05 and C-52/05 P, para 33 and 38.

[14] Access Info Europe v European Commission, Case T-851/16, para 37.

[15] The EUAA has differentiated between Category I and Category II documents, but as Category I contains 130 documents, the same argumentation has been put forward for all those documents.

[16] Some are general country reports, others are situational analyses of each Eastern Aegean facilities, but there are also email exchanges as well as individual feedback reports from staff members on their daily tasks. The authors of these documents have varying job profiles and responsibilities, and the contents and level of information provided are also heterogeneous.

[17] Documents 1 and 2.

[18] Documents 12, 20, 25, 29, 45 (Lesvos); 43, 46, 49, 52, 55 (Chios); 58, 60, 62, 64, 65, 68, 69, 74, 77, 83 (Samos); 87, 89, 91, 94, 96, 100, 101, 106, 107, 111 (Kos); 112, 117, 120, 123, 128 (Leros).

[19] Documents 3, 4, 5, 6, 7, 8, 9, 10, 11.

[20] Documents 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42 (Lesvos); 44, 45, 47, 48, 50, 51, 53, 54, 56, 57 (Chios); 59, 61, 63, 66, 67, 70, 71, 72, 73, 75, 76, 78, 79, 80, 81, 82, 84 (Samos); 88, 90, 92, 93, 95, 97, 98, 99, 102, 103, 104, 105, 108, 109, 110 (Kos); 113, 114, 115, 116, 118, 119, 121, 122, 124, 125, 126, 127, 129, 130 (Leros)

[21] Documents 85 and 86.

[22] Documents 131 and 132.

[23] Sison v Council, para 64.

[24] See for instance: https://www.thenewhumanitarian.org/news-feature/2023/12/04/inexcusable-whats-behind-deteriorating-conditions-greek-island-asylum-camps ; as well as https://www.aljazeera.com/features/2023/5/11/eu-details-alleged-violations-at-greeces-model-refugee-camps

[25] For instance, the UNHCR publishes detailed weekly statistics about arrivals and departures from each Eastern Aegean facilities since November 2023 (https://data.unhcr.org/en/documents/details/105247). To give another example of an issue recurrently mentioned by EUAA staff, the dysfunction of the Greek registration software Alkyoni II was known by civil society organisations (https://rsaegean.org/en/alkyoni/).

[26] To give examples, water shortages in Samos are reported by civil society (https://www.infomigrants.net/en/post/40579/greece-migrants-at-samos-camp-without-running-water). The fact that Greek authorities have cut off statutory refugees as well as people with a negative decision from access to food, is also known (https://www.europecares.org/news/update-emergency-food-distribution-on-lesvos). Major challenges to the provision of medical care in Samos is also of public knowledge (https://thepressproject.gr/samos-closed-controlled-access-centre-ccac-for-refugees-falls-short-of-basic-standards-national-commission-for-human-rights-visit-reveals/).

[27] Judgment of 22 March 2018, De Capitani v Parliament, T-540/15, para 64, available at: https://curia.europa.eu/juris/liste.jsf?num=T-540/15

[28] Judgement of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, Case C-60/14 P, para 82, available at: https://curia.europa.eu/juris/liste.jsf?num=C-60/15&language=EN

[29] Judgement of 9 September 2014, MasterCard and Others v Commission, Case T-516/11, para 67, available at: https://curia.europa.eu/juris/liste.jsf?num=T-516/11&language=EN

[30] See for instance: https://ihaverights.eu/joint-statement-shutdown-of-the-greek-asylum-service-database-leaves-people-unable-to-claim-asylum-and-in-limbo/

[31] https://euobserver.com/migration/ar3b2146fb

[32] https://www.aljazeera.com/features/2023/5/11/eu-details-alleged-violations-at-greeces-model-refugee-camps

[33] https://www.aljazeera.com/features/2023/5/11/eu-details-alleged-violations-at-greeces-model-refugee-camps

[34] MasterCard and Others v Commission, Case T-516/11, para 71.

[35] The Ombudsman decision available at: https://www.ombudsman.europa.eu/en/decision/en/170792

[36] Even more so as the list is not exhaustive. For instance, the list only refers to “gaps in interpretation” as regards document 2, while the document reveals broader gaps in the provision of legal, psychosocial and emergency support, accommodation of unaccompanied minors, etc.