Dear European Parliament,

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:

- The contract of the European Parliament with NationBuilder, a software firm.
- E-Mails, exchanges and other documents relating to NationBuilder and the use of their software

Yours faithfully,

Alexander Fanta

Dear AccesDocs,

my postal address is netzpolitik.org, Rue de la Loi 155, 1000 Bruxelles.

Yours sincerely,

Alexander Fanta

Dear European Parliament,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Contracts and communication with Nationbuilder'.

Context

On 27 September, I sent an access to documents request under Regulation 1049/2001 asking the European Parliament for documents relating to its contract with NationBuilder (reference number A(2019)11875).
On 11 November, the Parliament identified 10 documents relating to my request. Access to 4 of these documents were denied under Article 4(2) of Regulation 1049/2001 which states that access can be denied where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property.

Documents 9 and 10

You stated that both these documents relate to contract implementation. Specifically document 9 concerns contractual implementation of the Directive service contract, while document 10 mainly regards the communication of decisions taken by Parliament under the same service contract.

Regarding documents 9 and 10 you stated that both documents contain “observations and remarks that may negatively affect the commercial business of the contractor and may cause it a substantial prejudice on the market if they were publicly disclosed at this stage”.

The exceptions under Article 4(2) are subject to an overriding public interest in disclosure. We argue that there is a clear public interest in disclosure of these documents under the principle of transparency in public procurement.

There is an overriding public interest in knowing how public funds are spent, the transparency of the recipients of those funds, and in the legitimate watchdog function of investigative journalists.

1. How our public funds are spent through public procurement contracts
The Regulation on the financial rules applicable to the general budget of the European Union (Regulation (EU, Euratom) No 2018/1046 (Financial Regulation)) states that

In accordance with the principle of transparency enshrined in Article 15 of the Treaty on the Functioning of the European Union (TFEU), Union institutions are to conduct their work as openly as possible.
With regard to budget implementation, the application of that principle implies that citizens should know where, and for what purpose, funds are spent by the Union. Such information fosters democratic debate, contributes to the participation of citizens in the Union’s decision-making process, reinforces institutional control and scrutiny over Union expenditure, and contributes to boosting its credibility.

The Parliament has entered into a contract with NationBuilder, a voter management system that has been collecting and analysing voters' data on an large scale. We as citizens have a public interest in knowing that public funds are spent in an ethical way and with integrity.

Documents 9 and 10 concern contract implementation and communication of decisions under the same service contract. These are vital components of the contract that would allow us as citizens to really know “where and for what purpose funds are spent by the Union”, this information would subsequently foster “participation of citizens in the Union’s decision-making process” and make way for “scrutiny over Union expenditure, and contributes to boosting its credibility”.

2. Transparency of the recipients
In addition to this, regarding the recipients of funds, the Regulation also states:

"Without prejudice to the rules on the protection of personal data, the utmost transparency regarding information on recipients should be sought."

There is a clear public interest in knowing who the Parliament enters into business with. Concerns have been raised on how NationBuilder is using personal and private data. NationBuilder uses a controversial tactic of “social media matching” by which emails provided by users to the contracting party may be used to navigate through all social media accounts linked with that address. We should stress that this practice was banned by France's data protection authority in 2017 as a violation of internet users' consent, and the UK Information Commissioners Office has branded it a "concern".[1]

Regarding lawfulness of processing personal data, Article 5(1)(d) of Regulation on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data (EU) 2018/1725 states:

"Processing shall be lawful only if and to the extent that at least one of the following applies:
(d) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;"

The Parliament has chosen to enter into a contract with a voter management system that has previously used personal data without consent. As the ICO has previously noted, this data is, in most cases, being collected without users’ explicit consent, what would be a breach of Article 5(1)(d) of the Regulation. Even if the data used is publicly available, users must at all times be informed of the use their information is going to have.

The Parliament expressed that documents 9 and 10 “contain observations and remarks that may negatively affect the commercial business of the contractor and may cause it a substantial prejudice on the market if they were publicly disclosed at this stage”.

I argue that even if the remarks contained in the documents do negatively affect the commercial business of NationBuilder, this is not a sufficient argument to withhold such important information from the public. Such transparency is particularly in the public interest at the present time, as there is growing concern about how online personal data of citizens is being processed and used without their permission.

As the public have not been asked about the use of their data regarding the contract between the Parliament and Nationbuilder, there is a clear public interest here to know how the contract will be implemented and decisions that have been made regarding what is being done with our data. This is clearly an interest which supersedes any commercial interest of NationBuilder.

3. Watchdog function
I would like to remind the Parliament that as an investigative journalist I have a specific “watchdog” function of ensuring that there is public scrutiny of the spending of public funds. My work is to ensure that there can be a fully-informed, evidence-based public debate about how funds are used, and that the public can be confident that public bodies are exercising public power and spending public funds in a responsible and appropriate manner.

Therefore, when making this request as part of the exercise of my role as a public watchdog, I was exercising both my right of access to documents (Article 15 of the TFEU and Article 42 of the Charter of Fundamental Rights of the European Union) and also my right to freedom of expression and information, as protected by in Article 11 of the Charter of Fundamental Rights of the EU, which is analogous to Article 10 of the European Convention on Human Rights.

The European Court of Human Rights has established, through a series of judgments, that the right of access to information is particularly strong for public watchdogs such as journalists and civil society human rights organisations.

Denying me this information is impeding my watchdog function, something that the European Court of Human Rights has established is an interference with freedom of expression and information.

“As the applicant was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression” [2]

The Strasbourg Court has stated that public bodies cannot “allow arbitrary restrictions which may become a form of indirect censorship”.[3] In denying access to this information, the Parliament is creating barriers to the exercise of freedom of expression and information. The European Court of Human Rights has made clear that there is a positive obligation to eliminate such obstacles:

“The State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities”. [4]

Given that transparency is needed for journalists to carry out our watchdog activities, to contribute to public debate and decision making, there is a strong and specific purpose to transparency of the spending of public funds and the recipients.

Conclusion
In the light of the reasons given and relating to the ongoing investigation of the European Data Protection Supervisor into the conduct of the European Parliament, I believe full disclosure of the documents would be in alignment with the letter of the law on access to documents and of clear public benefit.

I would further like to point out that the Parliament has refused access to its own Data Protection Impact Assessment done on the services provided by NationBuilder [5] on the grounds of not wanting to disclose measures taken to secure the data. However, the reply by the Parliament conceded to the applicant that “the public may have an interest in being informed about the way Parliament handles and protects the personal data it collects and holds”. This would be an opportunity to do so.

As I have so far not received any of the documents, even those you were initially willing to disclose, I would ask to make available to me these documents you referred to in your letter on November 11th with full or partial access, while considering my confirmatory application.

[1] https://ico.org.uk/media/2259369/democra... page 32
[2] Youth Initiative for Human Rights v. Serbia, App. No. 48135/06, ECHR , 25 June 2013, para 24
[3] Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 27
[4] Társaság a Szabadságjogokért v. Hungary, App. No. 37374/05, ECHR, 14 April 2009, para 36
[5] https://www.asktheeu.org/en/request/data...

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/cont...

Yours faithfully,

Alexander Fanta

Dear AccesDocs,

the reply to my confirmatory application is two weeks overdue. Please send me your reply as soon as possible.

Yours sincerely,

Alexander Fanta