European Ombudsman’s Decision on Access to Documents Pertaining to GCHQ Surveillance

Decision in case 2004/2013/PMC on the European Commission’s handling of an access to documents request relating to the surveillance of the internet by UK intelligence services (Nov. 5, 2015)

The Ombudsman concluded that the European Commission had engaged in serious maladministration by refusing to provide valid reasons for denying the public access to its letters to UK authorities and citizens’ complaints pertaining to surveillance by the GCHQ.

The Complaint

This case arose from a German journalist’s request to the European Commission in June 2013 for access to documents pertaining to GCHQ surveillance, citing concerns that mass surveillance by the GCHQ had breached individuals’ rights to data protection under EU law. The Commission identified the following documents as responsive: (i) a letter from Vice-President of the Commission Viviane Reding to UK Foreign Secretary William Hague, (ii) Mr Hague’s letter of July 3, 2013 replying to Mrs Reding, (iii) a follow-up letter from the Director-General of the Commission’s Directorate-General (DG) Justice to the UK Permanent Representative to the EU, and (iv) citizens’ complaints asking the Commission to investigate GCHQ surveillance. Despite identifying the documents, the Commission refused to provide access, claiming that “disclosure would undermine the dialogue between itself and the UK authorities, which requires a climate of mutual trust until the negotiation phase has been completed.” Decision in case 2004/2013/PMC, para. 3. The Commission reasoned that the public interests in transparency and freedom of the press were overridden by  the general presumption that the purposes of investigations would be undermined if documents were disclosed.

On November 12, 2013, the journalist filed a complaint with the European Ombudsman, seeking access to the documents and alleging that the Commission had wrongfully denied his request.

The Ombudsman’s recommendation

On October 2, 2014, European Ombudsman Emily O’Reilly issued a draft recommendation acknowledging that the Commission was entitled to presume that disclosure of the requested documents would undermine the purpose of investigations, but stating that the presumption was rebuttable. Finding that the Complainant had rebutted the presumption, the Ombudsman recommended that the Commission provide access to UK Foreign Secretary Hague’s letter of July 3, 2013 to the Commission. In addition, she recommended that the Commission either grant the public, including the Complainant, access to the other documents or properly justify its refusal to disclose.

The Commission’s response

On the ground that UK authorities had already made the information publicly available, the Commission granted access to Foreign Secretary Hague’s letter of July 3, 2013 to the Commission. By contrast, the Commission continued to deny the public access to citizens’ complaints, “argu[ing] that the fact that these complaints merely contain general points does not, in itself, justify the granting of public access.” Decision in case 2004/2013/PMC, para. 12. In addition, the Commission contended that the public interest would be best served by denying  access to its letters to UK authorities, claiming that disclosure “at this point in time would lead to unwarranted and premature conclusions about the extent to which the processing and collection of information by the UK’s security and intelligence agencies complies with EU law.” Id., para. 15.

The Ombudsman’s decision

Ombudsman O’Reilly welcomed the Commission’s adoption of her recommendation to disclose the UK Foreign Secretary’s letter. She reasoned, however, that in light of the CJEU’s Judgment in Case C-612/13 P Client Earth v. Commission [2015] , the Commission’s refusal to disclose its letters to UK authorities could not be justified by  “a general presumption that disclosure would undermine the purpose of its investigation, as long as it has not sent the UK authorities a letter of formal notice.” Id., para. 18. On the ground that “the UK authorities do not seem to share the Commission’s view that the negotiations should be conducted in a confidential manner,” the Ombudsman also rejected the Commission’s contention that in the specific circumstances of the case, the disclosure of its communications would hinder negotiations with the UK. Id., para. 19. Similarly, in regard to the specific contents, the Ombudsman concluded that the Commission’s letters did “not contain information which, if released in a context where the UK authorities have already agreed to the release of their Foreign Secretary’s letter to the Commission, would undermine the need to foster and maintain a climate of mutual trust between the Commission and the UK authorities.” Id., para. 20. Based on her “firm belief that the citizens of Europe have a right to know in what way the EU seeks to uphold their fundamental rights,” the Ombudsman concluded that the public interest would best be served by disclosure of both the Commission’s communications to the UK and of citizens’ complaints. On this basis, she found that the Commission had failed to justify its refusal to disclose, and concluded that this constituted “serious maladministration given the high importance of the issue [of the right to data protection] for EU citizens generally.” Id., at para. 23.

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