infringement proceedings Data Retention Directive (2006/24/)

The request was refused by Migration and Home Affairs.

Dear Home Affairs (HOME),

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:

legal assessments carried out before the decision to launch the infringement proceedings against the member states which have not successfully transformed the Data Retention Directive (2006/24/EC), Sweden, Czech Republic, Germany and Romania.

Furthermore, I request access to all documents related to these infringement proceedings, including the written correspondence with the mentioned member states.

Yours faithfully,

Kersti Wissenbach
on behalf of Access Info Europe

Migration and Home Affairs

1 Attachment


European Commission
Directorate General Home Affairs
Directorate A: Internal Security
Unit A3: Police co-operation and access to information
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Dear Secretary General,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Home Affairs (HOME)'s handling of my FOI request 'infringement proceedings Data Retention Directive (2006/24/)'.

On 21 December my request regarding the infringement proceedings of the Data Retention Directive from 18 November was rejected by DG Home Affairs based on the exceptions laid down in Article 4 (2) and 4 (6) of Regulation 1049/2001.

This is a confirmatory application by which I request that you review this refusal to provide the requested documents.

On 18 November 2011, I requested, on behalf of the organization Access Info Europe, access to documents containing the following information:

“Legal assessments carried out before the decision to launch the infringement proceedings against the member states which have not successfully transformed the Data Retention Directive (2006/24/EC),Sweden, Czech Republic, Germany and Romania.

“Furthermore, I request access to all documents related to these infringement proceedings, including the written correspondence with the mentioned member states.”

The exception applied by DG Home Affairs was the protection of court proceedings and legal advice under Article 4.2 of Regulation 1049/2001.

DG Home Affairs argues that it is not possible to provide partial access to this information under Article 4.6 of Regulation 1049/2001 on the grounds that “all parts of the requested documents are related to the infringements proceedings and thus covered by the exception.”

DG Home Affairs also argues that there is no overriding public interest in the information which would require its disclosure, by simply stating “I consider that in this particular case the public interest is better served by protection of court proceedings.”

I am calling for a review of the initial refusal as I believe that the exception has been applied too broadly and that there is no evidence of a serious attempt to apply the public interest test taking the public interest into account.
I believe that at least some of the information requested should be released because:

1. I have requested the documents which are about and relate to the listed infringement proceedings. These could include documents which contain information that is or will soon be made public (press statements, documents to be published in the official bulletin) which will enable me to gain a picture of what is going on, what the time frames are, etc. I do not believe that all of this information could possibly harm the actual court proceedings which might eventually take place nor the provision of legal advice. The withholding of the information has therefore been done in blanket fashion without properly taking into account the nature of the information requested or the precise meaning of the exception invoked.

2. Even if some of the information were to justifiably fall under the exception in Article 4.2, then it should be possible to provide the remainder. The fact that “all parts of the documents are related to the infringement proceedings” is not sufficient, because the protection in Article 4.2 is protect court proceedings against harm – the requirement is that disclosure would “undermine the protection of” the protected interest – and it has not been demonstrated in this case that all the information would do this. Indeed, the assertion that the documents are “related” to infringement proceedings indicates that DG Home Affairs has applied the exception with a very broad brush indeed and, by conflating, “harm” and “related” has almost certainly refused access to parts of documents which could and should be in the public domain.

3. The public interest test does not appear from the response provided to me to have been applied with any rigor. DG Home Affairs argues that it considers that the public interest will be served by protection of the court proceedings. This is somewhat of a tautology as the exception exists to protect a legitimate public interest. Regulation 1049/2001, however, requires the public interest in disclosure be duly considered. The refusal letter contains no evidence that any serious consideration has been given to the public interest in this matter.

I assert that there is a strong public interest in access to the requested documents as they relate to a vigorous public debate which is currently taking place over whether or not the Data Retention Directive constitutes a proportionate and appropriate violation of the right to privacy. This is something which is being questioned not only by civil society but by government officials, information and privacy commissioners, and constitutional courts across Europe. The public needs detailed information about how the Directive is being implemented, including as much information as possible about how Member States are being threatened with court proceedings for non-compliance, in order to be able to participate fully in these discussions.

I note that the European public is currently subjected to measures – retention of telecommunications traffic – which constitute a massive restriction of the right to privacy. That public – the 500m Europeans – should be provided with detailed information about the grounds on which their countries are being threatened with court processes and possible sanctions (with any monetary fines to be paid out of tax payers’ contributions) for not implementing the Directive, including when that non-implementation results from the States acting on the decisions of Constitutional Courts.

Consequently, it is imperative to publicly disclose, in full or partially, all the documents held by the Commission which relate to the enumerated infringement proceedings and which do not fall under a narrowly applied exception after demonstrable application of the public interest test. Having access to this information is essential in order to enable the public to practice their basic rights and to participate in the ongoing and active discussions around the Data Retention directive.

In light of these concerns, I kindly request a thorough review and reconsideration of the initial decision in the interest of the public’s right to be informed about the way the EU operates and to engage in debate at the EU and national levels.

Kind regards,
Kersti Ruth Wissenbach

A full history of my FOI request and all correspondence is available on the Internet at this address:

Yours faithfully,


Migration and Home Affairs

Dear Ms. Wissenbach,

Thank you for your e-mail dated 27/12/2011, registered on 04/01/2012 [ARES(2012) 4986] .

I hereby acknowledge receipt of your confirmatory application for access to documents (Gestdem 2011/5894).

In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, you will receive a response to your request within 15 working days.

Yours sincerely,
Carlos Remis

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Migration and Home Affairs

1 Attachment

Dear Mr. Wissenbach,

Kindly find herewith a letter concerning your request for access to
documents (GESTDEM 2011/5894).

<<Wissenbach - EN - 2011-5894.pdf>>

Yours sincerely,

Madeleine Bluriot-Puebla

SG-B-5 - Transparence, cellule 'Accès aux Documents'

Migration and Home Affairs

4 Attachments

Dear Mr. Wissenbach,

Please find herewith our answer to your confirmatory application for
access to documents under Regulation (EC) n° 1049/2001   –    GESTDEM

<<Wissenbach - EN final.pdf>>

Enclosures :

<<Wissenbach Annex 1.pdf>> <<Wissenbach Annex 2.pdf>> <<Wissenbach Annex

Yours sincerely,


Cellule 'Accès aux documents'
European Commission
SG/B/5 - Transparence
BERL 05/330
B-1049 Brussels/Belgium
+32 2 296 09 97
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