Case Closed: Ombudsman decides GCHQ letters are of public interest

By EDRi · January 13, 2016

Almost two years after having been opened, case 2004/2013/PMC was closed by Emily O’Reilly, the EU Ombudsman, on the 5 November 2015. The case concerned the complain of a German journalist about the European Commission’s refusal to allow access to documents on internet surveillance by the British secret services – mainly the Government Communications Headquarters (GCHQ). Amongst others, the documents in questions were letters written by Viviane Reding (then Vice President of the Commission) to William Hague (the British foreign minister) and the ensuing correspondence, as well as letters of complaint by EU-citizens to the European Commission.

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The Commission’s refusal to make the content of these letters public was based on the presumption that such an approach would directly affect the dialogue with the British authorities and mutual trust. The Commission based its decision on rulings of the European Court of Justice in 2001, 2010 and 2011 which permit the denial of disclosure of documents related to current investigations.

However, it was another aspect of the Commission’s statement which has been criticised sharply by Ms. O’Reilly, namely the presumption “that there was no overriding public interest served by the disclosure” (Decision in case 2004/2013/PMC, Paragraph 4) of the documents. As the Ombudsman puts it in her “Critical remark” in the conclusion of the official decision, this “constitutes maladministration” – as the Commission did not give valid reasons for their decision to prohibit public access to the the documents – “which is particularly serious” – due to the public relevance of the issue of mass-surveillance and individual data protection.

After checking the documents in question, O’Reilly came to the conclusion that the content of the documents would not put neither mutual trust nor the outcome of the investigations at risk, but instead they are of great public interest.

The Commission did grant access to a letter written by the British foreign minister. It thereby partly followed Ms O’Reilly’s recommendation to grant access, but only after the information in this particular letter had already been made publicly available by the British authorities.
The European Commission now has to frame a response before May 2016. Due to the lack of comment by the complainant to the recommendation, the Ombudsman considers this case closed.

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 (05.11.2015)

Complete correspondence between the Complainant and the Ombudsman’s Office (in German)