The time it takes the European Commission to Handle Public Access to Documents Requests
European Ombudsman’s Special Report to the European Parliament
Excerpt from Emily O’Reilly’s speech at the European Parliament’s Committee for Civil Liberties, Justice and Home Affairs
Freedom of information is essential to a genuine democracy. It is only when citizens clearly understand the reasons why decisions are made, and by whom, that they can engage in the democratic process, hold decision-makers to account, and assess how well or otherwise those who represent them are doing their job.
This is even truer for the European Union. The major power centre of Brussels is remote from the daily lives of citizens. The administration’s necessarily technical and legal nature and language put up additional barriers to knowledge and to belonging. If we want to encourage civic participation and increase the turnout in European elections we must inform that participation and those election choices by giving citizens the information that they need.
It is a rare step for the European Ombudsman to issue a Special Report to the Parliament and one I have taken only once before in the last ten years. This was on the lack of transparency in the EU Council’s legislative activity. This is a last resort because the nature and scale of maladministration I have found requires a broader public debate and close parliamentary scrutiny as the normal institutional exchange and dialogue has not managed to resolve the problem.
European citizens enjoy the fundamental right to access documents held by the EU institutions in both the treaties and the Charter of Fundamental Rights. This right was enshrined in legislation over twenty years ago in a regulation that sets out the general principles and rules for the institutions, Regulation 1049. According to this Regulation, access is the rule, not an option. Access can be refused only if disclosure would harm a specific public or private interest, such as public security, privacy or investigations.
The regulation also states that requests from the public should be handled promptly by the EU administration.
There are two stages, an initial stage, which should be completed within a maximum of 30 working days, and a review stage (or confirmatory stage), which should also be completed within maximum 30 working days. This deadline cannot be extended further. When access is denied, in full or in part, or where the institution does not reply within the applicable time lines, those seeking public access to documents may bring the matter before the Court of Justice of the EU or turn to the European Ombudsman.
In recent years, my Office has witnessed a rising number of complaints about the delays in the Commission’s handling of requests for public access. It is not only the volume of these complaints that is of concern, but the seriousness of the issues they concern and the extreme nature of the delays.
Let me give just a few examples. Last year, a journalist submitted three requests to the Commission for documents concerning surveillance and security systems at migrant centres in Greece. She turned to the Ombudsman after encountering delays in receiving a reply to all three requests for a review of the Commission’s initial refusal. It took over one year for her to receive the reply to one of the requests and as I speak here today, the Commission has still not replied to two of the requests.
In another case, a citizen asked the Commission for a list of documents exchanged between the Commission’s Steering Committee dealing with the purchase of COVID-19 vaccines and the Polish government. It took the Commission 14 months to reply, during which time the complainant had no idea about the progress of this case.
In a final example, an environmental NGO asked the Commission for documents about a ban on short distance flights in France, for which more environmentally friendly alternatives exist. Having received no reply from the Commission following their request for a review, the organisation turned to the Ombudsman. The request concerned three short documents. Even so, it took the Commission ten months to disclose them.
In all three cases and many more “access delayed is access denied”. The delays defeat one of the very purposes of the right of public access, namely to allow citizens and organisations to participate in public debates and scrutinise the action that public authorities envisage or have taken. Granting access months or years after the matter has been in the public eye can be meaningless.
Against this background, I opened an own-initiative inquiry to look into how the Commission deals with these requests and, in particular, how it complies with the time limits set in the Regulation. My inquiry showed that the Commission encounters delays, including significant delays, in particular in dealing with requests at the review stage.
In 2021, while at the initial stage delays occurred in around 16% of cases, 85% of all confirmatory applications incurred delays. Over 60% of all confirmatory applications were dealt with in more than 60 working days, despite the legal time limit being 15 working days, which can be extended — in exceptional cases — by another 15 working days. Failure to comply with the time limits established by the EU legislature was thus systemic.
The situation has not improved. My office continues to see a significant increase in complaints about delays in dealing with access to document requests at the Commission. To date, the number of such inquiries opened in 2023 is already five times higher than it was for the entirety of 2020.
This trend is clearly unsustainable, and it remains to be seen whether recent improvements the Commission has made — such as a new IT system for submitting and handling requests — will improve things. But much more importantly in my view, there needs to be a fundamental change both in terms of culture and of practice.
That fundamental change must come from the top. The Commission, at the highest levels, should demonstrate in its public statements and in practice that transparency is the rule and a priority for the institution. Secondly, as the European Parliament has already proposed, the Commission should adopt swifter, more accessible and further simplified procedures for handling requests for a review of refusals to grant access.
My inquiry also concluded with further suggestions to address these systemic delays, such as improving proactive transparency so that more documents are already in the public domain, increasing the human resources available to process these applications and engaging more openly and directly with citizens when trying to answer their requests.
It is only fair to acknowledge that the Commission receives a large volume of requests every year — about 8000 initial requests per year. These numbers are rising as the Commission’s reach has expanded in the wake of the Covid-19 pandemic and the war in Ukraine, and as more and more challenges require a strong European level response, such as migration and the climate crisis. We are already receiving complaints about the EU’s response to the Israel Gaza crisis, as no doubt is the Commission.
The increasing volume and complexity of these requests however cannot justify the systemic delays. Not only does the Commission aspire to be an open, modern and service-minded public administration, it has also made the defence of democracy a priority of the von der Leyen administration, as the legislative package the Commission will adopt next month aims to demonstrate. None of these aspirations can be fulfilled if the Commission does not provide the resources required for them to become a reality, or to take some of the most basic steps to reform and streamline existing procedures. It is yet another example of how basic infrastructure can decay because of a lack of maintenance and investment — in this case the basic infrastructure of our democracies.
Finally, why do these delays matter? They matter because in the first place, they involve a negative experience with the EU for the citizen concerned and a loss of credibility for the institution. Citizens, for their part, are required to comply unconditionally with time limits imposed upon them by public authorities. I have dealt with multiple cases of citizens denied access to grants, to competitions for jobs, to public consultations because they missed a legally unmovable deadline.
It is difficult to see how it should be acceptable that public authorities can disregard the time limits that the law establishes for their action. Moreover, delays defeat one of the very purposes of the right of public access, namely to allow citizens and organisations to participate in public debates and scrutinise the action that public authorities envisage or have taken. Granting access months or years after the matter has been in the public eye can be meaningless. The gravity of this matter is compounded by the fact that, in the Ombudsman’s experience, significant delays occur in cases of great public importance.
It is only right therefore that this issue be taken up by the democratic representatives of the citizens to ensure their most basic rights are upheld.
