Dear European Research Council Executive Agency,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
Anonymized abstracts of all grant applications submitted between 2014 and 2016 for so-called "ERC Starting Grants" as in the Horizon 2020 program, whether successful or not, except where research involves an industrial partner
The above request is a revised version of that previously submitted under https://www.asktheeu.org/en/request/gran.... In your detailed reply, dated 26/01/18 and signed by Mr Pablo Amor, you refused my confirmatory request about access to documents from 26/12/2017. I continue however to believe that enhanced transparency of the ERC decision making in grant matters is in the public interest, in particular information about failed applications, since a decision to award a grant can only be assessed if weighed against the other options that were available. For example, I believe such information could be used by the public to check for biases or lack of diversity in the selection process, and might encourage reviewers to become less conservative, knowing that rejection of proposals that proceed to produce successful research elsewhere would cast doubt on parts of the selection process. I have hence decided to resubmit a revised version, while taking into account the objections raised in your answer.
My request, restricted in scope to "ERC Starting Grants" specifically tries to address conflicts with the data protection law, and objections voiced by Mr Amor that granting access whole or in part to grant application documents "may lead to their [applicants'] identification if, for instance, they are among the few experts in the world in a specific research field". Recipients of ERC starting grants however should not have not had sufficient time to become world experts yet, undermining this argument, and hopefully precluding another refusal. On a more general note, a lot of research results (including for that funded by the ERC) get published and now increasingly so in an open access format, meaning that the potential pool of people able to study themselves into appreciation of a research field is now much wider, so that unambiguous identification should not be possibly any longer, or at least no easier than for other documents the creation of which requires a certain degree of expertise.
In addition to invoking the data protection law, the refusal of the previous confirmatory request is based on the consideration that commercial interests may be harmed, and Mr Amor seems to explicitly extend this to abstracts of unsuccessful proposals on page 4: "Furthermore, the risk of plagiarism of the research idea would apply also in this case, including the description of the project as provided in the abstracts of unsuccessful proposals" This however clashes with the ERC itself publishing summaries of research projects on its website, even though one paragraph previously Mr Amor had evoked the "possibility to copy from those successful applications, thereby giving them [potential applicants] an unfair advantage in future calls". Finally, no satisfying explanation is given why the commercial/plagiarism harm done by publication of abstracts of successful proposals is considered negligible, whereas it should suddenly be an obstacle for the publications of abstracts of unsuccessful ones. Nevertheless, I have added an exception to the FOI request for research with an element of industrial cooperation, and restricted myself to applications older than 1 year, so as not to harm chances of anyone resubmitting the same proposal. It would however be helpful if you could spell out your criteria for distinguishing between commercial and non-commercial research, and give hard numbers of how many of the applications are concerned.
I furthermore understand from your explanation that successful applicants have to agree to the publication of summaries at a later stage of the application process, but unsuccessful ones do not. This however cannot be a reason for refusing my request, as long as it is clear that the data protection law is not violated (as it should not be for ERC Starting Grants) by releasing the abstracts, and no commercial interests are harmed (which, as explained in the last paragraph, should not apply here).
Another consideration is that Mr Amor seems to obliquely indicate on page 4 that successful applicants are given the possibility to modify summaries as on the ERC website. This is worrisome since it suggests that successful applicants can change even broad features of their research plan at a later stage, and no rules governing allowed modifications are stated. At least a disclaimer should be added to abstracts on the website that were modified this way, and a reason for the modification given, seeing how Mr Te Kolsté (in your first reply) proudly pointed to publication of these summaries as evidence of the ERC's commitment to transparency. Even assuming some modifications would be really necessary, it is not evident why the right to modification could not simply be extended to unsuccessful applicants, given that the Agency's workload ('principle of proportionality') for getting the abstracts published would presumably be small compared with the weeks it sometimes takes to write the grant application in the first place.
At the end of his reply, Mr Amor had already stated that the grant applications documents "are covered in their entirety by the invoked exceptions to the right of public access" which is obviously not very encouraging, implying that even the tiniest part of a grant application (particularly an unsuccessful one) can be used to compromise the person or the commercial interests behind it. This hardly seems like a very reasonable excuse, which is why I nevertheless decided to submit this rescoped request which should hopefully avoid the evident pitfalls.
Dear Mr Rolle,
We hereby acknowledge receipt of your email of 1 February 2018, in which
you requested access to "anonymized abstracts of all grant applications
submitted between 2014 and 2016 for so-called "ERC Starting Grants" as in
the Horizon 2020 program, whether successful or not, except where research
involves an industrial partner."
After having carefully analysed your request in accordance with Regulation
(EU) N° 1049/2001 regarding public access to European Parliament, Council
and Commissions documents (herein under referred to as the public access
to documents Regulation), we have concluded that it is clearly included in
the scope of your initial request dated 27 August 2017 (ref. N°
Ares(2017)5386141), in which you requested access to "all information
submitted by applicants since 2014 for ERC grants (starting, consolidator,
advanced, proof of concept, synergy), in particular the descriptions of
the proposals themselves as intended for the peer reviewers panel,
independently of whether the applications was successful or not, with any
information that cannot be given due to legal requirements overriding the
freedom of information (.e.g. privacy laws) blanked out.” The abstracts of
the proposals are indeed part of ERC applications and the ERC Starting
Grants were included in this first request, as well as the requested
period 2014-2016. Thus, we cannot consider your last email as a new
request in the sense of the public access to documents Regulation.
The ERCEA replied to your initial request on 23 November 2017 (ref. N°
Ares(2017)5749208), denying access to the requested documents on the basis
of the exceptions of privacy and integrity of the individuals and of
protection of commercial interests, provided in Article 4(1)(b) and
Article 4(2), respectively, of the public access to documents Regulation.
Upon your confirmatory application of 26 December 2017, the ERCEA Director
replied on 26 January 2018 (ref. N° Ares(2018)103090) by confirming the
previous conclusion and further clarifying why and how the two
abovementioned exceptions were applying to your request, including to the
abstracts of the unsuccessful proposals. You were also informed of the
means of redress applicable against the Agency decision.
By your renewed request of 1 February 2018, you restricted the scope of
your previous request to the abstracts of ERC applications under ERC
Starting Grants Calls for the period 2014-2016 and you also contested
ERCEA's confirmatory reply.
Please, note that there has not been any change in the legal or factual
situation between respectively your initial and confirmatory requests, and
your renewed request of 1 February 2018, which would impact ERCEA's
assessment and warrant a review of ERCEA's reply. Nevertheless, you will
find hereafter our reply to the specific points you raised.
First of all, we would like to come back to your request for access to
“anonymized” abstracts of both successful and non-successful applications.
As described in ERCEA's initial reply, in the case of the successful
applications, the ERCEA publishes on the ERC website, in accordance with
the terms of the grant agreement, the summaries of the proposals, which
are based on the abstracts of the submitted applications, as well as the
identity of the respective grantees. This publication is justified as the
Agency is funding the projects with EU money, and as such, basic
information about each funded project shall be made available to the
Concerning the non-successful applications, the identity of these
applicants is not and shall not be divulged, thus covering all the
applicants' documents, including the abstracts. As we explained in detail
in our confirmatory reply, the concept of “personal data” (referred to by
the exception of privacy and integrity of individuals of Article 4(1)(b)
of the public access to documents Regulation) includes 'any information'
which could allow the identification of a natural person. This definition
of personal data is given in Article 2 of the Regulation 45/2001 of the
European Parliament and of the Council, of 18 December 2000, 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 (hereafter, the data protection Regulation). Consequently, an
abstract cannot be defined as "anonymized" by deleting the applicant's
name or his/her contact details, as it may still lead to the
identification of its author (or other individuals), through its context,
the research topic and its specificities and any part of its content which
could be linked to, thus identifying, its author.
Additionally, as you did not establish the necessity of having the data
transferred to you and there is no reason to assume that the legitimate
rights of the persons concerned might not be prejudiced, the requested
documents, which include personal data, cannot be transferred, in
accordance with Article 8(b) of the data protection Regulation, which
establishes those two cumulative conditions as the necessary conditions
for any transfer of personal data.
In any event, the exception of the protection of commercial interests
(Article 4(2) first indent of the public access to documents Regulation)
would be still relevant for what you call the "anonymized" abstracts of
the non-successful proposals.
We refer to the confirmatory reply for a detailed explanation concerning
the application of this exception.
Even in the absence of the personal data consideration explained above,
these documents could not be disclosed without undermining the protection
of commercial interests of the applicants, including the intellectual
property on the content (and in particular of the ideas) presented in
those applications, and as summarised in the 'abstracts'.
With regard to the reason you put forward to obtain access to abstracts of
unsuccessful applicants as what you consider being a "public interest" in
the "enhanced transparency of the ERC decision making in grant matters",
we consider that the interest you mention for the public (which is already
informed of the projects funded by the ERC), cannot override the
protection of the commercial interests of the unsuccessful applicants.
Furthermore, as the same documents are also covered by the exception of
privacy and integrity of the individuals, the public interest you
mentioned, cannot override a fundamental right.
With regard to your opinion that ERC applicants to Starting Grants should
not have had sufficient time to become world experts and therefore, could
not be identified if their proposals were disclosed, we refer to the above
explanations as to the possibility to anonymise the requested documents.
The ERC is known for supporting cutting-edge and frontier research, often
the applications received are characterised by their originality and
novelty, which reduces the number of researchers that could have come up
with those ideas.
You also add that “open access” applies to a lot of research results,
which is correct. However, please note that in line with the ERC model
grant agreement, open access applies to funded projects and their results.
In respect of the possibility to copy/plagiarise, as explained in detail
in our confirmatory reply, it applies to both the funded and non-funded
ERC applications. This applies to the abstracts of unsuccessful proposals
insofar as they refer to ideas which are not yet financed, and which the
Agency received as part of the applications that are subject to an
obligation of confidentiality. However, for the summaries of the funded
proposals which are made public, although they could be copied, the risk
is much lower precisely because they concern projects that are publicly
announced as being financed by the EU in favour of a certain Principal
Investigator and Host Institution (the chances to copy and/or get funding
for the ideas taken from those summaries without being noticed are much
lower; moreover the ERC has put in place a research integrity procedure).
Furthermore, there is nothing allowing us to assume that this risk is
limited only to one year after the first submission, as it cannot be
assumed that in one year time all ideas at the basis of unsuccessful
proposals are out-of-date. As a matter of fact, it is normal that
unsuccessful applicants submit an improved proposal based on their
original idea in the following years.
Please, note that the fact that you have excluded from your last request
the applications where research includes an element of industrial
cooperation is not relevant for the above considerations and the
application of the commercial interest exception, given that the main
objective of ERC frontier research grants is to support "individual"
researchers and their teams in any field of basic research.
As a consequence of the above considerations, we can only reiterate
ERCEA's earlier conclusion that access to the documents requested,
including the abstracts of ERC applications to Starting Grants for the
period 2014-2016, shall be refused as these are covered in their entirety
by the invoked exceptions to the right of public access.
ERCEA ACCESS TO DOCUMENTS
European Research Council Executive Agency
Place Rogier, 16 - BE 1210 Saint-Josse,
E [ERCEA request email]