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. In recent years, both civil society[3] and international organisations[4] have expressed their concerns about reception conditions in migration management facilities in Cyprus. The European Union Agency for Asylum (EUAA) is present in Cyprus, where it provides support to national authorities in improving reception standards in line with the Common European Asylum System (CEAS).[5] This includes operational support in managing facilities, as well as capacity-building support for national authorities.

3. In September 2023, the complainant made a request[6] for public access to documents held by the EUAA in relation to migration management and reception centres in Cyprus. The request, which was clarified in October and November 2023, covered “all meeting minutes and/or any other documents held by the EUAA and all correspondence (including, but not limited to, reports, letters, e-mails, minutes of meetings, and any attachments) exchanged between EUAA representatives and [the European Commission’s] DG Migration and Home Affairs (HOME) representatives (including Cabinet officials) regarding, related to, or mentioning First Reception and Reception Conditions at existing and forthcoming migration reception centres on Cyprus - including Limnes, Pournara First Reception Centre, and Kofinou Reception Centre”. The request covered the period 1 February 2023 - 12 September 2023.

4. In January 2024, as the EUAA had not replied within the timeframe set by Regulation 1049/2001, the complainant asked the EUAA to take a final decision on her request (by making a “confirmatory application”).

5. The EUAA identified 76 documents as falling within the scope of the public access request, namely:

i. nine EUAA/European Commission email exchanges on reception (Category I)

ii. two EUAA/European Commission exchanges on a Commission visit (Category II)

iii. three other email communications (Category III)

iv. 29 emails received from the European Commission (Category IV)

v. 33 emails sent to the European Commission (Category V)

6. The EUAA provided wide partial access to two documents (documents 20 and 34), redacting only personal data. The Agency refused access to the 74 remaining documents. In refusing access, the EUAA relied on the need to protect the public interest as regards public security,[7] personal data,[8] and its decision-making process (both ongoing and finalised).[9] 

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

The inquiry

8. 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 the public interest as regards public security and the need to protect its decision-making process. The redaction of personal data was not challenged by the complainant and is therefore not part of the inquiry.

9. In the course of the inquiry, the Ombudsman inquiry team inspected the 74 documents at issue in the complaint, as well as the documentation pertaining to the third-party consultation on the access request. The EUAA provided the Ombudsman with additional views on the complaint.

10. Based on the inspection, the Ombudsman inquiry team asked the EUAA to clarify whether additional documents (mostly attachments to e-mails) should have been identified as falling within the scope of the access request. In that context, the EUAA identified 14 additional documents. The EUAA proposed to contact the complainant regarding those documents and then assess them within the scope of a new access request. The Ombudsman inquiry team agreed with this approach.

11. The 14 additional documents do thus not fall within the scope of this inquiry and are not part of the Ombudsman’s assessment in this solution proposal. The Ombudsman nonetheless encourages the EUAA, when processing this new public access to documents request, to take into account the observations made in this solution proposal.

Arguments presented

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

i. Protection of the public interest as regards public security: Documents 9, 23, 45, 46, 56, and 67-73 contain non-public information about the layouts and characteristics of an envisaged reception centre, and their disclosure would pose a physical security risk. Moreover, these documents contain sensitive information from third parties (Cypriot authorities, the European Commission), which was confidentially shared with the EUAA. Disclosure would therefore have a serious negative effect on the mutual trust between the EUAA, Cyprus and the Commission, with direct repercussions on the Agency’s ongoing operational activities.

ii. Protection of the decision-making process: The documents contain information and exchanges of a preliminary nature, whose disclosure would violate the trust of third parties and result in staff self-censorship in the future. This would diminish the information flow to the EUAA and seriously impair the Agency’s ability to make informed decisions. Specifically, documents 9, 23, 56, and 67-73 contain preliminary opinions of the EUAA and other actors on the First Reception Centre of Cyprus. Documents 19, 25 and 26 contain the unofficial position of the EUAA on the implementation of an EU funded project, which was still being assessed during the time period covered by the access request. Documents 1-8, 10-18, 21, 22, 24, 27-33, 35-66, 74-76 contain informal exchanges at staff level and drafts that may have been superseded by a final version, and which were used solely for internal communication purposes.

13. When assessing the need to protect its decision-making process, the EUAA acknowledged the existence of a general public interest in issues related to fundamental rights, migration management and reception, but emphasised that this does not mean that all documents related to these matters are automatically covered by an overriding public interest. In this case, the EUAA emphasised that not all the documents identified directly dealt with these issues. The Agency further argued that the complainant had not sufficiently substantiated her arguments as regards the overriding nature of the public interest concerned. It concluded that, given that the documents at issue were not final documents, their disclosure would not serve any public interest.

14. As regards the possibility to provide partial access, the EUAA argued that the exceptions essentially applied to the entirety of the documents. Nonetheless, even in the theoretical scenario where very limited access could be provided, the documents would be rendered meaningless due to the amount of redactions needed. This would be because of the “particularly large volume of (complex) documents concerned and, inter alia, personal data contained therein”. Partial disclosure would thus put a disproportionate administrative burden on the EUAA compared to the benefits the complainant would derive from it. In the additional views sent to the Ombudsman in May 2024, the EUAA added that the (dis)proportionate burden is to be assessed in light of the comparatively limited resources that EU agencies have.

15. The complainant argued that the EUAA had made an excessive use of exceptions under Article 4 of Regulation 1049/2001, and had failed to demonstrate serious and foreseeable risks to the protected interests should the remaining documents be (partially) disclosed.

16. As regards decision-making, the complainant contended that transparency about EU-funded migration management activities in Cyprus constituted an overriding public interest, especially in light of the concerns raised over potential rights violations in these facilities. She stated that there were indications that Cypriot centres are modelled on their Greek counterparts and that both countries were closely cooperating on the matter. Considering the allegations of fundamental rights violations in Greece, the complainant stated that this increased the Agency’s obligation to ensure the widest possible transparency around these projects vis-à-vis EU citizens. 

17. Finally, the complainant argued that the EUAA had failed to provide partial access to the documents on largely administrative grounds.

The Ombudsman's assessment

18. 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.[10] Exceptions to public access must be applied as strictly as possible, [11] and only to the (parts of the) documents that are concerned by it. [12] 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.[13]

19. 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 the entire content of the 74 documents at issue.

20. An assessment of the application of the exceptions under Regulation 1049/2001 as invoked by the EUAA for the documents in question is set out below. The use of examples 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.

Protection of the public interest as regards public security

21. In accordance with EU case law, EU institutions enjoy a wide margin of discretion when determining whether disclosing a document would undermine the protection of the public interest as regards public security. The Ombudsman’s role in this regard is limited to determining whether there has been a manifest error of assessment.[14]

22. The EUAA has argued that disclosure of documents 9, 23, 45, 46, 56, and 67-73 would pose a security risk because it would allow third parties to have an overview of the layout and characteristics of the Pournara First Reception Centre. Moreover, disclosure would have a serious negative effect on the relationship of trust that the EUAA has built with Cypriot authorities, thus hampering the Agency’s ongoing operational activities.

23. The Ombudsman does not take issue with the EUAA’s application of this exception to document 56, which is a detailed map of the camp layout.

24. As regards the remaining documents, some of them concern the EUAA’s position on the fencing of migration facilities (documents 9, 23, 45, 46), while others contain information about EUAA containers used in migration centres (documents 67-73). These documents seem to contain information that is both generic in nature and, to a large extent, already available to the public.  

25. As regards the documents related to fencing, documents 9, 23 and 45 merely indicate that the EUAA and the Commission have had an exchange as regards the fencing of the Pournara facility. This fencing is publicly known,[15] and considering that Pournara upgrades receive EU funding, the fact that the Commission and the EUAA have exchanged on the topic does not seem sensitive per se. It is not clear how the fact that these exchanges took place could have a detrimental impact on the EUAA’s relationship with Cyprus. Document 46, which contains the EUAA position on the fencing of migration management facilities, mostly expands on principles laid out in two official guidance documents from the EUAA.[16] Besides this, the Ombudsman notes that the content of this document is reproduced - with a high level of detail, and sometimes featuring the exact same wording - in the EUAA 2022 Modular Approach to Reception[17] and the EUAA 2024 Guidance on Reception,[18] both of which are publicly available online. It is therefore not readily clear how disclosure of such already publicly available information could undermine the public interest as regards public security.

26. The same observation can be made as regards the documents about EUAA containers.  Document 67 seems to contain mostly technical information about the characteristics of EUAA containers (dimensions, etc.), while documents 68-73 are pictures of these containers. The Ombudsman notes that the EUAA Modular Approach to Reception[19] describes in great detail EUAA standard containers, including their dimensions, and that it features multiple pictures of various EUAA containers used in Cypriot facilities. Pictures of containers similar to those featured in documents 67-73 are also visible in EUAA YouTube video clips[20] and through any simple Internet search. Therefore, based on the reasons provided by the EUAA, it is unclear how giving public access to these documents could pose a risk to public security.

27. In light of this, the Ombudsman considers that the EUAA has made a manifest error of assessment in invoking the exception on the protection of the public interest as regards public security to refuse access to documents 9, 23, 45, 46, and 67-73. The vast majority of the information contained in these documents has been published by the EUAA itself on its website. Considering that this information is in the public domain, refusing to disclose it to the complainant in the context of her public access request appears to be manifestly wrong.  

Protection of the decision-making process

28. The second exception invoked by the EUAA in refusing disclosure is the protection of its decision-making process, both ongoing and finalised. 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.[21] When the decision-making process has ended, EU institutions can rely on this exception to refuse access only to documents that contain opinions for internal use as parts of deliberations and preliminary consultations. The exception does not cover factual background information, for instance. In such a scenario, EU institutions must be able to explain why, despite the fact that the procedure has ended, their decision-making process would nonetheless be seriously undermined by disclosure of the documents.[22]

29. The EUAA has argued that all 74 documents were covered by the exception pertaining to decision-making because they contain information and exchanges of a preliminary nature. Their disclosure would risk leading to self-censorship among staff members and third parties, thus impairing the Agency’s ability to make informed decisions in the future due to a diminished information flow. When reasoning its decision, the EUAA has differentiated between three types of documents, which will be addressed separately in what follows.

30.  First, the EUAA has argued that documents 9, 23, 56, and 67-73 contain preliminary opinions of actors and other drafts related to the First Reception Centre of Pournara. The Ombudsman will not reassess document 56 in this section (see paragraph 23). As regards the other documents, their detailed description can be found in paragraph 25 and 26. These documents appear to be generic exchanges referring to the official position of the EUAA as regards fencing and to standard information about EUAA containers. A large part of this information is available in several EUAA documents published on the Agency’s website. Therefore, the Ombudsman is not convinced that disclosure would seriously undermine the EUAA’s decision-making process.

31. Second, the EUAA stated that documents 19, 25 and 26 contain the preliminary position of the EUAA on the implementation of an EU-funded project, and that the assessment of the project was still ongoing during the time period covered by the access request. It is the Ombudsman’s understanding that this project came to an end in 2022.[23] Considering that the email exchanges date from February 2023, it can be assumed that the assessment had ended one year later at the time of the confirmatory decision. In any case, the Ombudsman considers that these documents are not sensitive throughout, and that it is not clear how disclosure of some elements of a generic nature - such as the presence of social services or of legal guardians - would seriously undermine the EUAA’s decision-making process.

32. Third, the EUAA argued that documents 1-8, 10-18, 21, 22, 24, 27-33, 35-66, 74-76 contain informal exchanges at staff level and drafts that may have been superseded by a final version, and which were used solely for internal communication purposes.

33. The Ombudsman notes that the preliminary nature of the documents as such is not sufficient to justify their non-disclosure. Rather, any refusal of public access must be based on the specific content of a document.

34. According to the inquiry team’s review, some of these documents contain elements to which the Agency has already granted public access in various ways. As underlined in the previous section, documents 45 and 46 on the fencing of Pournara mostly contain information already available on the EUAA’s website. In addition, the EUAA has refused access to two documents (4 and 8) while simultaneously granting full or wide access to two other documents that seem almost identical (20 and 34). As concerns document 8, considering that the most substantial information has been disclosed (via access to document 34), it is not clear how giving access to the remaining parts of the document could seriously undermine the EUAA’s decision-making process.[24]

35. The remaining documents are mostly email exchanges related to a variety of issues, including the situation of children,[25] stakeholder visits,[26] medical issues,[27] the upgrade of Pournara,[28] general information about facilities,[29] and other information.[30] In this regard, the Ombudsman’s observations are as follows:

• Documents related to the situation of children: These exchanges seem to contain information that is generic in nature and refers mostly to elements already known by relevant stakeholders, such as for instance education arrangements[31] or the project of the NGO Office for the New Earth.[32]
• Documents related to a stakeholder visit: This visit took place several months ago and is known to the public, as it was mentioned in a Commission press release.[33] The relevant documents show the official event programme and contain only factual and outdated information (practical arrangements, etc.) with a low level of detail.
• Documents related to medical issues: Many of these exchanges relate to the EUAA’s normal duties (provision of training, etc.) or to technical details (state of X-ray machine, etc.). As regards tuberculosis testing, the Ombudsman notes that this issue has been discussed in the 2024 report of the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment[34] and the Cypriot government’s response.[35]
• Documents related to the upgrade of Pournara: These are exchanges about the coordination of renovation works in Pournara. Considering that the upgrade has been ongoing for the past year, this information is likely to be outdated. Apart from that, these exchanges appear to be general in nature.

Documents related to migration management facilities in general: These documents contain exchanges aimed at organising meetings with Cypriot authorities, a paper to be discussed in that context, as well as general statistics. The factual information shared in this context is rather generic (statistics about nationalities, centre capacity, etc.). The same applies to the email exchanges. As regards the discussed allocation mechanism, it seems that not all sections are sensitive. However, it is not readily clear whether these discussions are still ongoing.

• Other documents: The information contained in documents 12 and 13 is generic, and it appears that document 13 was meant to be shared with external stakeholders. As regards document 54, the existence of attacks against staff members in Pournara is documented by the anti-torture Committee of the Council of Europe.[36]

36. Based on this overview, it is not clear how the disclosure of the vast majority of these documents could seriously undermine the EUAA’s decision-making in a manner that is foreseeable and not purely hypothetical. Most of the information in the documents does not seem to be sensitive. Rather, large parts appear to be factual, “for information” exchanges about general issues or topics. The argument that staff members would not have had these exchanges had they known that they could be disclosed seems implausible. Therefore, the Ombudsman considers that it was unreasonable for the EUAA to refuse to give public access to the 74 documents at issue in their entirety, based on the need to protect its decision-making.

Overriding public interest in disclosure

37. 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.

38. The EUAA’s confirmatory decision acknowledges the existence of a general public interest in issues related to fundamental rights, migration management, and reception conditions. However, the EUAA considered that the complainant had not sufficiently substantiated the overriding nature of the public interest at stake here. Moreover, the Agency stated that not all documents dealt directly with these matters, and stated that considering that the documents at issue were not final versions, it was not clear how their disclosure would serve any evident public interest.

39. The Ombudsman first notes that the fact that the documents at issue are not final does not exclude that there could be an overriding public interest in their disclosure. Second, as developed in paragraphs 28-36, the Ombudsman considers that the vast majority of the documents at issue cannot reasonably be considered to be covered by the exception on decision-making. While this means that it is not strictly necessary to assess whether there is an overriding public interest in disclosure, the Ombudsman further disagrees with the EUAA’s view that the complainant’s arguments are too general and do not suffice to demonstrate the existence of an overriding public interest. On the contrary, the complainant has made detailed reference to the heightened need for transparency considering the fact that Cypriot migration management facilities receive EU funding, the mandate of the EUAA as regards refugee protection, as well as evidence indicating that there may be shortcomings in the situation in Cypriot facilities. These arguments are not merely general considerations.

40. The Ombudsman further notes that the anti-torture Committee of the Council of Europe, in a report about a visit that took place in May 2023 (report[37] published in May 2024), described the conditions in the Pournara First Reception Centre as “an affront to human dignity [that] may amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights [(Prohibition of Torture)]”.[38] The Committee described the sanitary conditions as “a clear health hazard” and expressed concerns about respect for children’s rights, access to healthcare, protection from violence and harassment, and access to legal support or even to a complaint mechanism. At the end of its visit, the Committee invoked Article 8(5) of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,[39] which allows its experts to make observations to the national authorities before the visit has ended. This Article is used only in exceptional cases where urgent action is required.

41. The Ombudsman recalls that Article 3 of the European Convention on Human Rights is an absolute right that cannot be limited or infringed under any circumstances. In that context, the concerning findings of the anti-torture Committee of the Council of Europe, in combination with the apparent difficulties of civil society to monitor the situation in Pournara and the fact that Cypriot facilities receive EU funding, all suggest the existence of an overriding public interest in disclosure of all documents or parts thereof not covered by the exception on public security.

42. 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 decision 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 17 October 2024 of any action it has taken in relation to the above solution proposal.

Emily O'Reilly
European Ombudsman

Strasbourg, 12/07/2024

 

[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] Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees

[3] See for instance the 2023 Cyprus Country Report published by the European Council on Refugees and Exiles, available at: https://asylumineurope.org/wp-content/uploads/2024/05/AIDA-CY_2023-Update.pdf  

[4] UNHCR 2023 Thematic Factsheet on Reception in Cyprus, available at: https://www.unhcr.org/cy/wp-content/uploads/sites/41/2023/10/UNHCR-Cyprus_Reception_Fact-Sheet_2023-September_ENG.pdf

[5] EUAA-Cyprus Operational Plan 2022-2024, latest amended version available at: https://euaa.europa.eu/sites/default/files/EUAA_Operational_Plan_to_Cyprus_2022-2024_Amendement_2.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] In accordance with Article 4(1)(a), first indent of Regulation 1049/2001.

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

[9] In accordance with Article 4(3) first and second subparagraph of Regulation 1049/2001.

[10] 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

[11] 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

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

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

[14] Sison v Council, para 64.

[15] See for instance: https://www.financialmirror.com/2023/09/13/second-reinforced-fence-at-migrant-reception-camp/

[16] EASO 2016 Guidance on Reception Conditions, available at: https://euaa.europa.eu/sites/default/files/publications/EASO_Guidance_on_reception_conditions_-_operational_standards_and_indicators%5B3%5D.pdf ; as well as EASO 2018 Guidance on Reception Conditions for Unaccompanied Children, available at: https://euaa.europa.eu/sites/default/files/Guidance-on%20reception-%20conditions-%20for-unaccompanied-children.pdf

[17] See in particular p.43-47: https://euaa.europa.eu/sites/default/files/publications/2022-10/EUAA-modular-approach-reception-container-site-design.pdf

[18] See page 44, “Standard 11”: https://euaa.europa.eu/sites/default/files/publications/2024-05/2024-Guidance-reception-Operational-standards-and-indicators.pdf

[19] https://euaa.europa.eu/sites/default/files/publications/2022-10/EUAA-modular-approach-reception-container-site-design.pdf

[20] Video “Meet Costas, a caseworker at #Pournara Reception Centre #Cyprus”, available at: https://www.youtube.com/watch?v=3H0yZanV_aQ

[21] 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

[22] Judgement of 21 July 2011, Sweden v MyTravel and Commission, C-506/08 P, para 80 and 82, available at: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-506/08%20P 

[23] Overview available at: http://www.dmsw.gov.cy/dmsw/sws.nsf/All/604D866B615150C9C2258ADE003ED6E9?OpenDocument

[24] Especially as the project has now ended, and has been documented in great detail online: https://www.facebook.com/watershed.ngo/?locale=nl_BE

[25] Documents 1, 3, 17, 40, 41, 62.

[26] Documents 10, 11.

[27] Documents 14, 24, 27, 28, 29, 30, 31, 32, 42, 47, 48, 49, 58, 59, 61, 69, 76.

[28] Documents 18, 33, 44, 55, 57, 63, 64, 65, 66. This category also includes document 56, but the Ombudsman will not address it again here (see paragraph 23).

[29] Documents 2, 5, 6, 7, 15, 16, 21, 22, 35, 36, 37, 38, 39, 43, 50, 51, 52, 53, 74, 75.

[30] Documents 12, 13, 54.

[31] See in particular: https://asylumineurope.org/reports/country/cyprus/reception-conditions/employment-and-education/access-education/#:~:text=The%20Refugee%20Law%20provides%20that,of%20submission%20of%20the%20claim

[32] See: https://www.linkedin.com/posts/office-for-the-new-earth_one-cyprus-kofinou-activity-7113213941509447680-PoL6

[33] See: https://home-affairs.ec.europa.eu/news/re-construction-cyprus-first-reception-centre-pournara-2023-07-11_en

[34] Report to the Government of Cyprus on the visit to Cyprus carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 9 to 17 May 2023, CPT/Inf (2024) 18, para 197 and 222: https://rm.coe.int/1680afb22c 

[35] Response of the Government of Cyprus to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Cyprus, p. 49: https://rm.coe.int/1680afb22f

[36] See para 203 and 209: https://rm.coe.int/1680afb22c

[37] Available at: https://rm.coe.int/1680afb22c

[38] See in particular para 209: https://rm.coe.int/1680afb22c

[39] European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, available at: https://rm.coe.int/16806dbaa3