28 March 2014
On 22 October 2012 Statewatch submitted to the European Ombudsman a complaint against Europol concerning its access to documents policy: Statewatch complaint (pdf). On 19 November the Ombudsman sent the complaint to Europol: Ombudsman's letter to Europol 19.11.12 (pdf). However, as the Ombudsman had already launched an own-initiative inquiry into Europol in May 2012, which included its policy on access to documents, the Ombudsman decided to end the Statewatch complaint but to include its substance in the Inquiry: Closing Statewatch complaint: Europol (pdf). The Ombudsman stated on 10 December 2012 that as Statewatch had agreed that its complaint be closed:
"you [Statewatch] would be informed of the Ombudsman's further steps in his own-initiative inquiries concerning Europol, Frontex and Eurojust and would be given the opportunity to submit observations on the replies submitted by the Ombudsman."
The Ombudsman further said this would cover any replies submitted by the Agencies: Ombudsman overall letter of 10.12.12 concerning his own inquiries and three Statewatch complaints (pdf).
The Ombudsman's own-initiative inquiry into Europol began in May 2012: Europol: Visit and Annexes (pdf). This was followed on 28 January 2013 by the Ombudsman's: Report on Europol (pdf) and subsequently Europol's Response to the Report (pdf) on 29 March 2013.
The substance of Statewatch's complaint against Europol
The Europol Convention (1996) was amended in 2007 and replaced by a Council Decision on 6 April 2009. The 2009 Decision states, in Article 45, that Europol's policy on access to its documents should "take into account the principles and limits" of EU Regulation 1049/2001 on public access to documents.
This phraseology gave some scope to Europol to pick and choose what to include in its rules, however, it did not allow Europol to diverge fundamentally from those principles and limits.
First, rules agreed by the Europol Management Board in 2007 and 2009 state that:
"Europol shall provide access to a register of publicly accessible documents and shall as far as possible make documents directly accessible in an electronic form"
Europol has failed to provide a public register of documents. Further, its rules say that the register will only contain "publicly accessible documents" whereas Article 11 of 1049/2001 states that all documents "shall be recorded in the register without delay".
Second, the rules deviate from the principles of 1049/2001 by allowing refusal of access to documents "if disclosure of the document would undermine Europol's decision-making process," whereas 1049/2001 says that such refusals are only possible where access would "seriously undermine..."
Third, 1049/2001 allows institutions and agencies 15 day time limits to respond to initial and confirmatory applications, but Europol's rules allow it 30 days.
Fourth, Europol's rules fail to provide for appeals to the ECJ or the European Ombudsman following a failed confirmatory applications (an appeal against refusal of access).
Fifth and finally, Europol's rules fail to include Article 17 of 1049/2001 which requires: i) the publication of an Annual Report on access to documents; including ii) the number of cases where access is refused and the reasons for refusal; iii) to give the number of "sensitive" documents not recorded in a register.
The Ombudsman's Report on his visit to Europol
The Ombudsman's report on his visit to Europol raises a number of issues which were also raised by the Statewatch complaint.
First, Europol "receives very few requests for public access from the public" but the 2009 Decision of the Management Board of Europol laying down the rules concerning access to Europol documents (pdf) sets the time limit for responding to requests as 30 working days as distinct from 15 working days in the Regulation (1049/201). The Ombudsman says that while Europol can adopt its own rules of procedure it must respect the "general principles and limits" as set out in Article 15(3) of the Lisbon Treaty and thus it has to "justify expressly the concrete reason" for any extension in the time limit.
Second, the Ombudsman notes that the Decision of the Management Board on access to documents does not refer to Article 8(1) of Regulation 1049/2001 regarding the right of an applicant to go to the Court of Justice or the Ombudsman if they are dissatisfied with the response to a confirmatory application. The Ombudsman's report notes that it is in the interests of transparency that this right is brought to the notice of an applicant and that Europol "could consider modifying Europol's MB [Management Board] Decision".
Third, the Ombudsman noted that Europol did not produce an annual report on public access to documents and that the Europol's MB Decision does not contain a provision to provide such a report as provided for in Article 17 of the Regulation (1049/2001). The Ombudsman said that in the light of the small number of requests this obligation could be met by including a section in its general annual report - though it must be observed that the small number of requests can largely be attributed to the failure to provide a public register of documents (see below).
Fourth, the Ombudsman noted the Europol MB Decision refers to a "register of publicly accessible documents" whereas Article 11(1) of Regulation 1049/2001 refers to a "register of documents":
"The wording of the Europol MB Decision would seem to suggest that its public register would not include those documents that are in Europol's possession but which it has not yet decided should be publicly accessible."
Fifth, on the issue of the obligation of Europol to provide a public register:
"The Ombudsman underlines that the purpose of a public register is to make it easier for citizens to exercise their rights of public access. If a citizen is unaware of the existence of a document, it will be difficult, if not impossible, for the citizen to exercise his or her fundamental rights to make a request for public access thereto."
Sixth, under Article 17 of the Regulation (1049/2001) the annual report on access has to state the number of "sensitive" (classified) documents "not recorded in the register". On this issue the Ombudsman "considers" that a reference "to the existence of these documents" could be include in the public register.
Seventh, the Ombudsman noted that Article 4 of the Europol MB Decision states that access to documents can be refused if access "would undermine Europol's decision-making process" whereas the Regulation (1049/2001) says that such documents can only be refused if disclosure would "seriously undermine the decision-making process". The Ombudsman says that Europol should either bring the MB Decision into line with the Regulation or justify the concrete reason why disclosure should be refused if it only "undermines" the decision-making process.
Europol's Response to the Ombudsman's Report
Europol's Response to the Ombudsman's Report (pdf) was sent on 29 March 2013.
First, Europol agrees that from 2013 its annual report will include a section on access to documents.
Second, that a project to establish a public register of documents is "planned for completion by the end of 2013".
Third, that its website will make clear the possibility for applicants to appeal to the Ombudsman and to the Court of Justice. Furthermore, "at the latest", Europol's MB Decision on access will be updated when the proposed new Europol Regulation (currently under negotiation) enters into force. The new Europol Regulation will include a provision to apply Regulation 1049/2001 within six months.
Fourth, with regard to its current rule of 30 days to reply to a request, instead of 15 days in the Regulation, Europol will in future rely on Article 6 which allows institutions to "find a fair solution" with the applicant as "the majority of Europol's documentation is based on information (at least partially) from external cooperation partners".
Fifth, on the issue of refusing access to documents where it would only "undermine" (rather than "seriously undermine") the decision-making procedure, Europol states that it will take the Ombudsman's comments into account and fully address the issue when it updates the MB Decision on access.
Europol's response does not directly answer points four and six (in the previous section). It could be inferred from Europol's response that it will not apply the criteria of only putting "publicly accessible documents" on its promised public register (point four) as it intends to apply Regulation 1049/2001.
However, its failure to directly refer to the obligation under Article 17 to include in its annual report the number of sensitive documents not recorded in the register, given the Ombudsman's view that a reference "to the existence of these documents" could be included in the public register, should be expressly clarified. Namely, that Europol accept both of these points.
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