Background to the complaint

1. One of the tasks of the European Anti-Fraud Office (OLAF) is to conduct independent administrative investigations into serious misconduct by staff and members of the EU institutions. This can include a failure to seek approval for an outside activity or a failure to notify a conflict of interest. Following its investigations, OLAF can make recommendations for actions to be taken by the EU institution concerned, including ‘disciplinary recommendations’ aimed to sanction any wrongdoing by staff and members of EU institutions.[1] Through its annual report, OLAF informs the public about the number of disciplinary recommendations it made to the EU institutions concerned in a given period and whether the institutions followed-up on these.[2]

2. The complainant, a journalist, wanted to know more about OLAF’s findings and the  institutions’ follow-up decisions in the period 2015 to 2023. To this end, he made several requests[3] for public access to documents to relevant EU institutions, including, in June 2024, to the European Foundation for the Improvement of Living and Working Conditions (Eurofound), asking for

• OLAF’s final report(s) and recommendations (and related documents), and
• the final reports issued by Eurofound on the disciplinary follow-up action it had taken.

3. Between 2015 and 2023, OLAF had conducted one investigation concerning Eurofound in which it found that one of the staff members concerned had, amongst other things, failed to declare a conflict of interest.

4. Eurofound refused to give public access (without identifying specific documents), relying on the need to protect personal data and the need to protect the purpose of OLAF investigations.[4]

5. The complainant challenged Eurofound’s decision to refuse access (by making a ‘confirmatory application’). He did not challenge the redaction of the personal data.

6. In reply, Eurofound granted the complainant wide public access to the following documents:

• the OLAF final report,
• two recommendations issued by OLAF, and
• one document related to Eurofound’s follow-up (a decision imposing a reprimand).

Eurofound redacted parts of these documents, maintaining that disclosure would undermine the protection of personal data and the purpose of OLAF investigations. Eurofound added that the documents also contain commercially sensitive information the disclosure of which would undermine commercial interests.[5]

7. As regards “documents related to the OLAF report”, Eurofound stated that “these documents fall within the category of documents within the investigative file.” It thus refused access to the documents in their entirety, relying on a general presumption of confidentiality and arguing that disclosure would undermine OLAF’s decision-making going forward.[6] Eurofound did not, however, specify what documents it had identified in relation to this aspect of the access request.

8. Dissatisfied with the refusal of access, the complainant turned to the Ombudsman.

The inquiry

9. The Ombudsman opened an inquiry into Eurofound’s refusal to grant public access to the documents at issue in the complaint to the extent that the withheld information does not constitute personal data.

10. In the course of the inquiry, the Ombudsman received Eurofound’s reply on the complaint, including confidential information. The Ombudsman inquiry team also inspected the documents at issue, including the annexes to the OLAF report which Eurofound considered to be covered by a general presumption of confidentiality.

Arguments presented

11. The complainant argued that disclosure was of significant public interest for the following reasons: it would (i) illustrate the EU’s commitment to the principles of transparency and accountability, (ii) enhance public trust in the EU institutions’ integrity by demonstrating that misconduct is addressed effectively, and (iii) contribute to improving policies and procedures related to staff conduct.

12. In his confirmatory application, the complainant stated that it was important for the public to understand how OLAF and Eurofound had handled the misconduct at issue, even if it did not have financial implications. The complainant also suggested that sensitive personal information could be redacted to address privacy concerns while substantive content should be disclosed. Finally, the complainant questioned the application of the exception for the protection of the purpose of OLAF investigations, noting that the OLAF investigation and Eurofound’s follow-up had been completed.

13. Eurofound stated that the documents at issue were of an administrative rather than a legislative nature and that a lower level of transparency applied to such documents.

14. Concerning the documents that it disclosed in part, Eurofound said that it had redacted all information that could lead, directly or indirectly, to the identification of the individuals mentioned in the documents, including the persons concerned in the OLAF investigation. This encompassed, for example, names, contact details and opinions. Eurofound argued that this information constituted personal data and that its disclosure would undermine the privacy and integrity of the individuals concerned.

15. Eurofound also stated that the documents contained the value of a contract that had been awarded to a private company. It considered that disclosure of this information would undermine the commercial interests of the company concerned.

16. As regards the protection of the purpose of OLAF investigations, Eurofound contended that it had withheld information about informants, sources and witnesses. It argued that disclosure of this information would enable potential fraudsters to anticipate OLAF’s methods, timing and strategy and could thus undermine future investigations.

17. In addition, as regards the annexes to the OLAF report, Eurofound argued that these documents form part of OLAF’s investigatory file. It could thus be presumed that disclosure would undermine OLAF’s decision-making. It added that the general presumption of confidentiality continued to apply even after an investigation and the follow-up thereof have been completed.[7]

18. Finally, Eurofound took the view that there was no overriding public interest in disclosure and that the objective pursued by the complainant had been achieved by the partial disclosure granted.

The Ombudsman's assessment

On the documents that were disclosed in part

19. The concept of ‘personal data’ is very broad. It covers any information related to an identified or identifiable person.[8] The information does not need to be linked to a person’s private life. Information concerning a person’s professional activity can also constitute personal data, namely if it allows for the identification of the individual concerned.

20. Accordingly, Eurofound considered that the names, contact details and other information that would allow for the identification of the individuals concerned, including OLAF staff, witnesses and the persons concerned in the OLAF investigation, constitute personal data.

21. Based on the inspection of the documents to which Eurofound granted access in part, the Ombudsman confirms that the information that Eurofound redacted to protect the privacy and integrity of individuals can reasonably be considered personal data.

22. The inspection also showed that the redactions in three documents, that is, the two OLAF recommendations and the Eurofound decision, do not go beyond information of such nature.

23. As the complainant did not challenge Eurofound’s refusal to give public access to personal data and did not put forward a need for disclosure of this information in the public interest, these redactions were justified.

24. Concerning the OLAF report at issue, Eurofound withheld also very limited information that it considered to be commercially sensitive. Based on the inspection of the report and the additional explanations provided by Eurofound, the Ombudsman considers that this information can reasonably be considered to constitute personal data. The redaction of this information was therefore justified.

25. Finally, Eurofound redacted information based on the need to protect the purpose of the OLAF investigation. Based on the inspection of the OLAF report, the Ombudsman notes that it contains mainly information on the investigatory steps taken by OLAF and the list of annexes to the report. Other parts are related to Eurofound itself rather than the OLAF investigation.

26. Whilst it is not clear how disclosure of some of this information would undermine the purpose of the (closed) OLAF investigation, the Ombudsman notes that, overall, these redactions are rather limited and, to some extent, reflected in other parts of the report that have been disclosed. For example, whilst Eurofound redacted, on the first page of the report, the information that it conducted interviews with witnesses and how many such interviews there were, it is clear from the last paragraph on page seven that interviews with witnesses took place. Nor is this element surprising but rather a logical and expected step in any OLAF investigation.

27. Therefore, whilst the Ombudsman considers that parts of these rather limited redactions might not have been reasonable, the disclosure of this information would not provide a better insight into the OLAF investigation concerned.

On the documents to which access was refused in their entirety

28. As regards the annexes to the OLAF report, Eurofound refused to give public access relying on a general presumption that disclosure would seriously undermine OLAF’s decision-making going forward. This means that Eurofound did not assess the annexes to the OLAF report individually to decide whether access could be granted. Rather, Eurofound presumed that, due to their very nature, that is, the fact that they form part of the OLAF file, disclosure of these documents, even in part, would seriously undermine OLAF’s future decision-making.

29. In refusing access, Eurofound referred to the ruling in Strack[9] in which the General Court recognised that EU institutions may apply a general presumption of confidentiality after the relevant OLAF investigation and the follow-up to it have been completed, if disclosure can be deemed seriously to undermine OLAF’s future decision-making.[10]

30. Notably, however, this ruling concerned certain categories of documents in the investigation file only,[11] that is, case notes and internal correspondence containing the strategic analyses of investigators, as well as drafts of the final report. The General Court acknowledged that these specific categories of documents, if disclosed, could reveal OLAF’s strategies and methods, thereby seriously undermining the effectiveness of its future investigations.[12]

31. Whilst the annexes at issue here form part of the OLAF file, they cannot reasonably be considered to fall within the categories to which the Court decided that a general presumption of non-disclosure could be applied. The Ombudsman therefore conducted an individual assessment of the annexes to examine whether it had been reasonable for Eurofound to refuse to give public access to them, in part or in their entirety.

32. Based on this review, the Ombudsman considers it unlikely that an individual assessment by Eurofound would have led to a different outcome in this case.

33. The arguments put forward by the complainant in favour of the existence of an overriding public interest do not alter this finding. More specifically, in essence, the complainant argued that the information at issue should be disclosed so as to ensure transparency, accountability and public trust, and to improve the EU’s policies and procedures related to staff conduct.

34. The Ombudsman considers that the objective pursued by the complainant is legitimate. However, Eurofound has provided the complainant with wide partial access to the documents he requested, redacting mainly personal data. The redactions have not rendered the documents illegible. Rather, the redacted documents reflect all steps of the OLAF investigation, OLAF’s detailed findings and the specific follow-up measures taken by Eurofound. This information allows for public scrutiny and could also inform a debate on the applicable rules.

35. The Ombudsman therefore considers that there is no overriding public interest in disclosure.

On the identification of documents

36. The Ombudsman notes that Eurofound redacted the last page of the OLAF report, listing the annexes to it, and it did not describe the annexes or their content in its decisions on the complainant’s access request. Instead, it limited itself to referring to “documents [that] fall within the category of documents within the investigative file.” This was presumably due to the fact that Eurofound applied a general presumption of confidentiality.

37. In certain circumstances, it can indeed be warranted not to identify documents individually in reply to an access request. For example, this may be the case if the disclosure of the title of a document itself would undermine the very interest that the institution concerned is trying to protect by refusing to give public access.

38. However, the Ombudsman notes that the use of a general presumption can be rebutted by the applicant who made the access request. More specifically, the applicant can show that the general presumption does not apply to a specific document or category of documents, or that there is an overriding public interest in disclosure, that is, another public interest that is deemed more important than the interest that the institution is trying to protect.[13]

39. Therefore, it is not sufficient, as Eurofound has done here, to reply, in a general manner, that all the documents that fall within the scope of the access request are part of a file that is covered by a general presumption of confidentiality. Rather, the institution has to identify the documents in its reply, so as to enable the applicant to challenge its use of a general presumption.[14] This can be done, for example, by listing the documents individually or by describing them, including their specific nature.[15]

40. The Ombudsman trusts that Eurofound, where it refuses to give public access to documents based on a general presumption of confidentiality in the future, identifies the documents at issue in its reply to the applicant, so as to enable the applicant to challenge the use of a general presumption.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[16]:

There are no further inquiries justified.

The complainant and Eurofound will be informed of this decision.

Rosita Hickey
Director of Inquiries

Strasbourg, 10/02/2025

 

[1] For more information, visit: https://anti-fraud.ec.europa.eu/about-us/what-we-do_en or https://anti-fraud.ec.europa.eu/investigations/internal-administrative-investigations_en.

[2] See, for example, the OLAF report 2021, page 52: https://anti-fraud.ec.europa.eu/document/download/8d92a187-fae8-449f-8600-e84af9b2dabf_en?filename=olaf-report-2021_en.pdf.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: http://data.europa.eu/eli/reg/2001/1049/oj applicable to Eurofound according to Article 24(2) of Regulation 2019/127 establishing Eurofound: http://data.europa.eu/eli/reg/2019/127/oj.

[4] In accordance with Articles 4(1)(b) and 4(2), third indent, of Regulation 1049/2001.

[5] In accordance with Articles 4(2), first indent, of Regulation 1049/2001.

[6] In accordance with Articles 4(3), second subparagraph of Regulation 1049/2001.

[7] Eurofound referred to the judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08: https://curia.europa.eu/juris/document/document.jsf?text=&docid=177121&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=24193453.

[8] Article 3(1) of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data: https://eur-lex.europa.eu/eli/reg/2018/1725/oj.

[9] Strack v Commission (see footnote 7 above).

[10] Strack v Commission, paragraph 160.

[11] See also the Ombudsman’s preliminary views on OLAF’s partial refusal of public access to the case file and report from an investigation (case 1103/2024/MIK): https://www.ombudsman.europa.eu/en/doc/preliminary-finding/en/199384.

[12] Strack v Commission, paragraphs 152-153.

[13] Judgment of the General Court of 28 May 2020, Campbell v Commission, T‑701/18, paragraph 43: https://curia.europa.eu/juris/document/document.jsf?text=&docid=226879&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=26073593.

[14] Campbell, paragraphs 41 to 46.

[15] Judgment of the General Court of 2 October 2024, TotalEnergies v Commission, T-332/22: https://curia.europa.eu/juris/document/document.jsf?text=&docid=290606&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=2872684.

[16] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions.