FOI Request Case

Update 27 July 2023

 

Please find attached the response to the confirmatory application.

 

C_2023_5251_1_EN_ACT_part1_v2

 

C_2023_5251_1_EN_annexe_acte_autonome_nlw_part1_v1 C_2023_5251_2_EN_annexe_acte_autonome_nlw_part1_v1

 

C_2023_5251_3_EN_annexe_acte_autonome_nlw_part1_v1

 

C_2023_5251_4_EN_annexe_acte_autonome_nlw_part1_v1

 

C_2023_5251_5_EN_annexe_acte_autonome_nlw_part1_v1

 

Update 7 July 2023

 

Dear Sir,

We are writing concerning your confirmatory request for access to Commission documents for case 2023/2252 registered on 22/05/2023.

On 13/06/2023, we extended the time-limit for replying to your confirmatory request to 04/07/2023.

Unfortunately, we will not be able to send you the reply within this extended time limit as the decision is still pending adoption.

However, we assure you that we are doing our best to send a reply to your confirmatory request as soon as possible.

We regret this additional delay and sincerely apologize for any inconvenience this may cause.

Kind regards,

Access to documents team – Secretariat General – Unit C.1 (Transparency, Document Management and Access to Documents)

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Update 22 June 2023

The Commission replied to my confirmatory appeal, and  have asked for some more time to deal with the request. So, I look forward to the 4 July 2023.

 

 

Dear Sir,

We are writing concerning your confirmatory request for access to Commission documents for case 2023/2252 registered on 22/05/2023.

We are currently working on your confirmatory request. However, we have not yet been able to gather all the elements necessary to carry out a full analysis of your request. We will not be able to send you the reply within the prescribed time limit expiring on 13/06/2023.

Therefore, in line with Article 8(2) of Regulation (EC) No 1049/2001 we need to extend this time limit by 15 additional working days. The new time limit expires on 04/07/2023.

We apologise for any inconvenience this may cause.

Kind regards,

Access to documents team – Secretariat General – Unit C.1 (Transparency, Document Management and Access to Documents)

 

Today, 22 May, I submitted a confirmatory request.

 

Please find a copy below.

 

Dear Sir/Madam,

This letter is a confirmatory application pursuant to Article 7(2) of Regulation (EC) No 1049/2001 (the ATD Regulation), in response to Michael Wimmer’s reply dated 8 May 2023 (Ref. Ares(2023)3226591 – 08/05/2023) to my initial ATD application of 16 April 2023 (EASE 2023/2252).

My initial ATD request sought, ‘a copy of the decision to remove the names of European Commission staff under Head of Unit level of the EU Whoiswho Directory and copies of any supporting documents that influenced the decision’ (emphasis). The premise of my request was that such a significant reduction in Commission transparency must have been the result of a reasoned Commission decision (issued in written form) and based upon verifiable evidence. I asked to see that decision. Mr. Wimmer’s reply provided:

1. Full disclosure of a “Background document: privacy statement DPR-EC-00447. Processing operation: EU Whoiswho – Official Directory of the European Union” (“Document 1”), the date if which is not indicated on that document – please clarify this as part of your confirmatory response.

 

2. Redacted internal Commission e-mail correspondence between Pascal LEARDINI of the Secretariat General and Hilde HARDEMAN of the Publications Office of the EU, dated 28 March 2023, instructing that a change of policy be implemented (“Document 2”).

3. Complete refusal of disclosure of an “Internal communication between the Secretariat-General and the Publications Office of the European Union of 30 March 2023” (“Document 3”).

For the reasons set out below, I would like the Commission to reconsider its initial reply and provide for full disclosure of the reasoned decision, if one exists, and in any event the supporting documents which are relied upon to substantiate the dramatic de facto change in transparency policy.

 

“Document 1”

As noted above, it is not apparent that this document relates to the decision to reduce transparency regarding those officials involved in shaping and implementing EU laws and policies. It appears to pre-date the recent change in policy, because its section 4 states, ‘Which personal data do we collect and further process? …Commission internal staff: surname and first name (abbreviated for “non management” staff); telephone number… For other EU staff, the data depends on the choice of the respective EU institution.’ This document also appears to make clear that the extent of disclosure has been a free choice for different EU institutions. No legal barrier to disclosure of professional contact information for non-managerial staff is identified.

“Document 2”

The reply does not identify this as “the decision” which I requested. Please clarify if it is “the decision” or if there is another, separate, document which constitutes the decision? The e-mail exchange does not appear to be a reasoned decision of the Commission. Rather, it seems to be an internal instruction to implement certain changes in transparency, following a decision having already been taken to reduce significantly the information available to the public. It is that, as yet undisclosed decision, which I have requested access to under the ATD Regulation.

In any event, Document 2 confirms that:

• reasoned information in documents supporting the de facto decision exists (‘I have informed the President’s cabinet accordingly’) and therefore falls within the scope of my initial ATD request; and
• any reasoning contained in any replies from the President’s cabinet would also fall within the scope of my initial ATD request.

I ask that you now provide those documents.

(“Document 3”)

This is the only document in respect of which the initial reply invokes any of the exceptions under Article 4 of the ATD Regulation. Specifically, disclosure is refused entirely on the basis of the ‘protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of Regulation (EC) No 1049/2001, because they contain the following personal data: – the names/initials and contact information of Commission staff members not pertaining to the senior management.’ Article 9(1)(b) of the Data Protection Regulation (Regulation (EU) 2018/1725) is also invoked. Both apply concurrently.

This purported justification does not correspond to the scope of the request which I made for ‘a copy of the decision… and copies of any supporting documents that influenced the decision’. I have not requested the names of officials at all but the decision (and supporting evidence) for dramatic change in transparency policy. So, the reasons provided for non-disclosure cannot possibly justify the refusal to share Document 3.

In any event, the initial reply invokes the Commission’s ‘duty to protect its staff, especially those dealing with sensitive files. To avoid that these colleagues are subject to undue pressure from external sources, the access to the names and contact details of non-management staff has been limited. The measure is part of the Commission’s increased efforts on security and emphasis on data protection, respecting the requests from a number of colleagues on non-managerial positions not to disclose their data on EU Whoiswho’ (emphasis added). This indicates that the de facto decision is supported by evidence, such as:

1. ‘undue’ pressure’ from third parties targeted at non-managerial staff specifically – with evidence of deleterious consequences;
2. requests from a significant number of staff in non-managerial positions not to disclose their data on EU Whoiswho because of their experience of ‘undue’ pressure’ from third parties;
3. complaints regarding ‘undue pressure’ made, inter alia, pursuant to Article 22c of Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (“the Staff Regulation”)[i];
4. a study on why non-managerial staff might be more susceptible to ‘undue pressure’ or less able to respond to it appropriately;
5. an analysis of how, between the publication date of Document 1 and the new policy, circumstances have materially changed regarding ‘undue pressure’ from third parties (supported by documentation, such as internal consultations);
6. an assessment of more proportionate safeguard measures which might be considered to protect officials against real (not merely hypothetical) instances of intimidation. For example, civil servants who have been subject to undue pressure could have their details removed. Officials working in purely administrative matters could be removed. This would leave a relatively small group of civil servants working on legislative, regulatory and policy matters, that are by their nature of interest to all Europeans, and who should remain available to be contacted.

In absence of such evidence, there is no basis for a blanket assertion that all information regarding the identity and professional contact details of non-managerial Commission staff must be concealed.

Public interest in disclosure

Only through transparency can the requirements of the Treaty on European Union (Articles 10 and 11) be fulfilled:

‘Article 10

 

[…]

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen…’

 

Article 11

 

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society…’

There are compelling reasons, in the public interest, to disclose such information:

1. The new policy only serves to make the operations of the Commission less transparent to those concerned by EU affairs but who are not physically proximate to the Commission in Brussels. This is more prone to distorting the range of people who can engage effectively with the Commission.
2. The Commission has the right of legislative initiative. The Court of Justice has recognised that ‘…transparency and openness of the legislative process strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act…’[ii] This requires the ability to engage with and scrutinize the work undertaken by officials – most of which does not occur at the managerial levels. Most legislative and regulatory work is done by desk officers. Drafting teams and members of the ISSG are, in the main desk officers. It is in the public interest that the public can contact the desk officer working on legislative and regulatory decisions.
3. The new policy runs contrary to administrative efficiency. Leaving enquires to Directors, Heads of Unit, and Cabinets will divert precious time away to answering legitimate questions from the public which do not need to be addressed by managers. I presume that the new policy also means that if I were to call the Commission’s Switchboard and asked for the phone number of a desk officer or to be put through to that desk officer this would be denied and I would be directed (along with the rest of the public) to her head of unit?
4. The Commission’s application is in any event partial. There are on-going public consultations on legislative proposals where the desk officer is indicated. Commission officials below head of unit and above frequently present in public indicating their role on the legislative and regulatory file. These inconsistencies confirm the absence of an objective need to conceal this information from the public.
5. President von der Leyen’s Mission Letter to the Vice President of the European Commission for Values and Transparency, on 1 December 2019, stated that: ‘Europe’s democracy depends on the faith and trust of citizens in how it works and in their ability to hold to account the people and institutions that serve them’ (page 4). She indicated that part of the mission of the Vice President was to strengthen democracy and transparency also by ‘bring(ing) more transparency to the legislative process’ (page 5).[iii]
6. Details of the contacts of officials are being provided by 3^rd Party Providers for a fee. They purport to be be able to re-assemble the information in Whoiswho through AI.

I understand that recent high-profile examples of EU decision-making procedures being subject to undue pressure and succumbing to corruption[iv], all concern individuals very much in the public domain. Concealing the names of the individuals involved would not have addressed these real issues.

In light of the foregoing, and the clear jurisprudence of the CJEU[v] I look forwarding to receiving the full set of documents listed above.

If you have any questions, please don’t hesitate to call.

Yours faithfully,

M: 0472 94 83 17

[i]              Article 22c provides: ‘In accordance with Articles 24 and 90, each institution shall put in place a procedure for the handling of complaints made by officials concerning the way in which they were treated after or in consequence of the fulfilment by them of their obligations under Article 22a or 22b…

The appointing authority of each institution shall lay down internal rules on inter alia:

— the provision to officials referred to in Article 22a(1) or Article 22b of information on the handling of the matters reported by them,

— the protection of the legitimate interests of those officials and of their privacy, and

— the procedure for the handling of complaints referred to in the first paragraph of this Article’ (emphasis added).

Article 24 of the Staff Regulation provides: ‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties…’ (emphasis added).

[ii]             Case C-39/05 P, Sweden and Turco v Council, ECLI:EU:C:2008:374, paragraph 67.

[iii]            Similarly, this is at odds with President von der Leyen’s Political Guidelines for the next European Commission 2019-2024, 16 July 2019, where she wrote, ‘I also believe we need more transparency throughout the legislative process. I will work together with the European Parliament and the Council to make this happen. Citizens should know who we, as the institutions who serve them, meet and discuss with and what positions we defend in the legislative process’ (page 21).

[iv]            https://www.europarl.europa.eu/news/en/press-room/20230214IPR75103/corruption-allegations-meps-push-for-ambitious-changes-and-quick-progress

[v]             E.g. Case C 57/16 P, Client Earth v. European Commission, paras. 51, 73-75, 81, 84.

 

____________________________________________________________________________________

Today, 8 May, I received the reply to my request.

I’ll prepare a confirmatory request in the coming days.

 

The main reason appears to be “ To avoid that these colleagues are subject to undue pressure from external sources”.

 

EASE 2023_2252 DPR-EC-00447 - Processing operation_ EU Whoiswho – Official Directory of the European Union

Email message_decision WhoisWho_redacted List of identified documents and type of disclosure

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Request No.: 2023/2252

Request date: 16/04/2023

Commission department: OP – Publications Office

Language of requested document(s): English