OCM(2018)18034 - 22/08/2018
Directorate B: Investigations II
Mr Graham Philip
Subject: Your application for public access to documents
Dear Mr Philip,
We refer to your request of 31 July 2018, registered in OLAF on 3 August 2018,
OCM(2018)17252, for public access to OLAF investigation into the murder of Jan Kuciak
and the connected alleged misuse of EU funds in Slovakia, Bulgaria and Italy, in
accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the
Council of 30 May 2001 regarding public access to European Parliament, Council and
Commission documents (OJ L 145, 31.5.2001, p. 43). OLAF has no competence to
investigate the alleged murder of Jan Kuciak and consequently interprets your request as
a request for public access to documents of investigation OF/2018/0217/B.4 concerning
alleged misuse of EU funds.
Having carefully considered all circumstances, OLAF regrets to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of public
access laid down in Article 4 of Regulation (EC) No 1049/2001 based on the following
The requested documents are part of OLAF's case file OF/2018/0217/B.4.
The documents are covered by the exception under Article 4(2), third indent of Regulation
No 1049/2001, which stipulates that the institutions shall refuse access to documents where
disclosure would undermine the protection of the purpose of inspections, investigations and
audits, as well as the protection of privacy and the integrity of the individual as referred to
Article 4(1)(b) of the Regulation and the protection of the decision-making process as
referred to in Article 4(3) of the Regulation.
The General Court recognised in recent case-law1 a general presumption of non-
accessibility for documents in OLAF case files. It considers that the disclosure to the public
under Regulation (EC) No 1049/2001 of documents related to OLAF investigations could
fundamentally undermine the objectives of the investigative activities, as well as the
decision making process, both now and in the future. This implies that the disclosure of
the requested documents can be refused without carrying out a concrete, individual
examination of those documents in order to assess whether their disclosure may seriously
undermine the protected interest, and that no partial access needs to be considered.
1 Judgment of the General Court of 26 April 2016, Strack
, T-221/08, EU:T:2016:242, p. 162.
Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web: http://ec.europa.eu/anti_fraud
OCM(2018)18034 - 22/08/2018
The presumption is based on the consideration that, in order to determine the scope of
Regulation (EC) No 1049/2001, account must be taken of relevant sectoral rules
governing the administrative procedure under which the documents requested under
Regulation 1049/2001 were gathered2, in the case at hand, Regulation (EU, Euratom) No
883/2013 of the European Parliament and of the Council of 11 September 2013
concerning investigations conducted by the European Anti-Fraud Office (OLAF). Article 10
of that Regulation provides for the obligation of confidentiality with regard to all
information gathered during investigations.
The protection of confidentiality of information in the legal framework applicable to OLAF
investigations aims, on the one hand, at safeguarding the successful conduct of an
investigation in the public interest and, on the other hand, at safeguarding the legitimate
interests of the individuals, so that the information they provide is used only for the
purposes of the investigation. The protection of confidentiality extends to closed cases3.
In addition, having regard to the nature of the information processed in the context of
OLAF investigations, the publication of the sensitive information contained in the OLAF
case file is likely to harm the protection of personal data regardless of whether an
investigation is pending or closed. Furthermore, public disclosure of selection or
investigation documents could negatively affect OLAF's future cooperation with national
administrative or judicial authorities and vice versa in the context of its investigations.4
In view of the foregoing, the documents in OLAF's investigation files fall under the
presumption of non-accessibility as documents containing information collected during an
OLAF investigation and subject to confidentiality and professional secrecy rules.
Consequently, the documents requested are exempt, in principle and in full, from
disclosure to the public unless the applicant demonstrates that the presumption is not
applicable because an overriding public interest justifies the disclosure of the requested
Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. For such an interest
to exist, it first has to be a public interest, and second it has to outweigh the interest
protected by the exception to the right of access.
OLAF understands the importance of transparency of the functioning of the EU institutions
and particularly of the European Commission. However, given the nature of the anti-fraud
investigations conducted by OLAF, and the confidential nature of information collected, in
particular in relation to sources of information, content of case files and reputation of
natural persons, OLAF considers there are no elements that would show the existence of
an overriding public interest in disclosing the requested documents.
2 Judgment Court of Justice of 28 June 2012, Agrofert Holding
50 to 59; judgment of the Court of Justice of 29 June 2010, Commission
v Technische Glaswerke Ilmenau
139/07 P, EU:C:2010:376, p. 55 ff.
3 Judgment of the General Court of 26 April 2016, Strack
T-221/08, EU:T:2016:242, p. 150 to
4 Judgment of the General Court of 12 May 2015, UAHE v Commission
, T-623/13, EU:T:2015:268, p. 72 to 79.
5 Judgment of the General Court of 26 April 2016, Strack
T-221/08, EU:T:2016:242, p. 91.
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Given the preliminary nature of the anti-fraud investigations conducted by OLAF, OLAF
considers that the interest in maintaining the confidential nature of its case documents
prevails. In this context it should be borne in mind that whatever the outcome of OLAF's
investigation, according to well established case-law the conclusions of an OLAF final
report have no effects likely to adversely affect the legal position of the person
concerned.6 OLAF has no competence to conduct or even initiate disciplinary,
administrative or judicial proceedings.
Hence, the interests of competent authorities who follow up on OLAF's conclusions in a
serene manner as well as the interests of persons involved in the investigation, such as
sources of information, in preserving confidentiality prevail. In particular, with regard to
the reputation of persons concerned, the Office is bound to uphold the presumption of
innocence, in accordance with the cited relevant case law and legislation.
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting OLAF to review this position. Pursuant to Article 4 of
Commission Decision 2001/937/EC, ECSC, Euratom, such a confirmatory application should
be addressed within 15 working days upon receipt of this letter to the Director General of
Any confirmatory application to OLAF should be sent to the following address:
Mr Ville Itälä
European Anti-Fraud Office (OLAF)
Your attention is drawn to the privacy statement below.
on 22/08/2018 at 12:13 by
Ernesto Bianchi [DIRECTOR]
6 Order of the Court of First Instance of 18 December 2003, Gómez-Reino v Commission
ECLI:EU:T:2003:352, p. 65.
OCM(2018)18034 - 22/08/2018
Pursuant to Article 11 of Regulation (EC) 45/2001 on the protection of individuals with regard to the processing
of personal data by the Community institutions and bodies and on the free movement of such data, please be
informed that your personal data are stored in OLAF’s electronic and paper files concerning this matter for the
purposes of ensuring conformity with the requirements of Regulation 1049/2001.
The categories of your personal data being processed are identification and contact data (name, address, e-mail,
telephone, fax) and any other personal data provided by or to you in relation to your request. Officials within
OLAF and other Commission services responsible for dealing with requests for access to documents have access
to your personal data.
All documentation and communications concerning OLAF investigations are stored in the relevant OLAF
investigation files and are retained for a maximum of 15 years. Thus personal data contained in requests for
public access to documents concerning OLAF investigations are retained for a maximum of 15 years.
You have the right to access those data and to correct and complete them. On request and within three months
from its receipt, you may obtain information concerning your personal data which we have processed. Any such
request should be addressed to the Controller ([email address]).
You may lodge a complaint concerning the processing of your personal data with the European Data Protection
Supervisor ([email address]) at any time.
The complete privacy statements for this and all other OLAF personal data processing operations are available at http://ec.europa.eu/anti_fraud.