European Commission 2021 Questionnaire on Encryption

Chloé Berthélémy made this acceso a documentos request to Migración e Interior

Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.

Esperando una revisión interna por parte de Migración e Interior de cómo han respondido a esta solicitud.

Dear Migration and Home Affairs,

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 questionnaire circulated to Member States in 2021 on the topic of encryption;
- The responses of Member States to the questionnaire received by the Directorate General;
- The compilation of the responses done by the Directorate General;
- All presentation material (powerpoint, etc.) used by the European Commission to present the results and give feedback to Member States at the beginning of 2022;
- The "thorough mapping of how member states deal with encryption" done by the European Commission as mentioned in the European Commission's Communication on the EU Strategy to tackle Organised Crime 2021-2025.

Please note I'm requesting access only to anonymised communications and documents without personally identifiable information.

Yours faithfully,
Chloé Berthélémy

==
My address:
Chloé Berthélémy
Rue Belliard 12
1040 Brussels

HOME-ACCESS-DOCUMENTS@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 25/10/2022 and registered on 25/10/2022 under the case number
2022/6061.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 17/11/2022. We will let you know
if we need to extend this time limit for additional 15 working days.

To find more information on how we process your personal data, please see
[1]the privacy statement.

Yours faithfully,

Directorate-General for Migration and Home Affairs - Access to Documents
European Commission

References

Visible links
1. https://ec.europa.eu/info/principles-and...

sg-acc-doc@ec.europa.eu,

1 Adjuntos

Dear Ms BERTHÉLÉMY,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/6061.

Kind regards,

SG.E2 Migration, Borders and Security

sg-acc-doc@ec.europa.eu,

2 Adjuntos

Hello,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/6061.

Kind regards,

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/6061, sent on 12/12/2022 and registered on 12/12/2022.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 11/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Hello,

We are writing concerning your confirmatory request for access to
Commission documents for case 2022/6061, registered on 12/12/2022.

Please be informed that we will close this confirmatory apllication as the
right reference of your case should be 2022/6064 instead of 2022/6061(as
indicated in your email).

Please be also informed that you will receive an acknowledgment of receipt
for confirmatory request 2022/6064.

Kind regards,

Access to documents team

Dear Migration and Home Affairs,

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

I am aiming to submit a confirmatory application with regards to my access to documents request 'European Commission 2021 Questionnaire on Encryption' (case 2022/6064) within the 15 working days provided for by Article 7(2) of Regulation (EC) No 1049/2001.

I have a procedural question: Should the confirmatory application be sent to you or to the Secretary-General of the Commission (at the following address: European Commission Secretariat-General Transparency, Document Management & Access to Documents (SG.C.1) BERL 7/076 B-1049 Bruxelles or by email to: [email address]) or both?

Many thanks in advance for your reply.

Yours faithfully,

Chloé Berthélémy

FARGUES Oyanne, Migración e Interior

Dear Chloé Berthélémy,

 

Normally you have to submit your confirmatory application directly to
SECGEN, to the email address you mentioned (SG ACCES DOCUMENTS
[1][email address]).

Nonetheless, as the platform and process have changed these past months,
this time we will forward your request to the General Secretariat
directly.

 

You should receive a message from the General Secretariat of receipt of
your confirmatory application. If you do not receive it in the coming
days, come back to us or send a message directly to SECGEN.

 

Wishing you a very good afternoon.

 

Best regards.

 

 

ATD Team of DG Home Affairs and Migrations.

 

 

References

Visible links
1. mailto:[email address]

Dear Migration and Home Affairs,

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 'European Commission 2021 Questionnaire on Encryption', No 2022/6061.

Pursuant to Article 7(2) of Regulation (EC) No 1049/2001, I ask the Council to review the decision to grant only partial access to the document in question, taking into consideration the following:

1. The harm test applicable to Article 4(1)(a) has not been sufficiently proven as it was not sufficiently demonstrated how full disclosure of the document would cause a reasonable foreseeable, non-hypothetical harm to public security.
2. In relying on Article 4(3), protection of the decision-making process, the public interest test was not properly considered.
3. The application of Article 4(2) was not sufficiently argued
4. The Union institutions must conduct their work as openly as possible
5. Partial access was not considered

1. The harm test applicable to Article 4(1)(a) has not been sufficiently proven as it was not sufficiently demonstrated how full disclosure of the document would cause a reasonable foreseeable, non-hypothetical harm to public security.
You state that "Disclosure of the documents requested would undermine the protection of the public interest as regards public security. These documents address the issue of access to encrypted information in the context of criminal investigations and prosecutions. They contain sensitive information on operational practices, challenges and needs of the Member States in the area of encryption for law enforcement authorities." I argue that by stating that these documents fall under the interest of public security is not sufficiently demonstrating the harm to such a level that would compensate denying a citizen their fundamental right of access to documents.

In Case T 233/09 Access Info Europe v Council, the General Court confirmed that the mere fact that a document concerns an interest protected by an exception to disclosure is not sufficient to justify the application of that exception. The Court of Justice of the European Union has also stated that an EU body “remains obliged (...) to explain how disclosure of that document could specifically and actually undermine the interest protected by an exception provided for in that provision, and the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical.” (Judgment of 3 July 2014. Council of the European Union v Sophie in 't Veld.C-350/12P para. 64)

Therefore, such application of the exception may be justified only if access to that document could specifically and effectively undermine the protected interest. Moreover, the risk of the protected interest being undermined must not be purely hypothetical and must be reasonably foreseeable.

It is important to underline here that the harm to a protected interest has to be such as to justify the denial of the fundamental right of access to documents as protected by the treaties.

Furthermore the disclosure of a blank questionnaire sent by the European Commission to Member States is not likely to cause reasonably foreseeable and non-hypothetical harm as it neither contains any sensitive information nor reveals any official preliminary views of the European Commission.

2. In relying on Article 4(3), protection of the decision-making process, the public interest test was not properly considered.

You state that : "Disclosure of the documents requested would also undermine the decision-making process of the Commission in relation to encryption in the law enforcement context, as it would reveal preliminary views and policy options which are currently under consideration. The Commission's services must be free to explore all possible options in preparation of a decision free from external pressure. Therefore, the exception laid down in Article 4(3) first subparagraph of Regulation (EC) No 1049/2001 applies to the requested documents.
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) No 1049/2001 apply unless there is an overriding public interest in disclosure of the documents. I have examined whether there could be an overriding public interest in disclosure, but I have not been able to identify such an interest."

I am arguing that there is an overriding public interest in the disclosure of the documents and their contents.

There is a huge public interest in knowing how the European Commission is collecting data and evidence to support the Union's future policies in the area of law enforcement, especially given the interference with European citizens' fundamental rights at stake. The topic of encrypted communications is of vital importance for the privacy and security of a very wide range of individuals and entities in modern society (citizens, member of the government and public institutions, private companies, media, etc.). It is therefore crucial that how encryption is dealt with in the areas of law enforcement and security is debated openly and publicly. The methods, limits and conditions of state access to encrypted data is a fundamental question in a democracy as it implies critical debates on the checks and balances between state authorities and targeted individuals.

It is also not properly argued why revealing a blank questionnaire as well as the answers given by Member States would lead to or amount in itself to "external pressure" on the European Commission as you state. It is essential that the European Commission is transparent, in the public interest, about how it consult Member States and other stakeholders when it tries to inform its policy-making.

3. The application of Article 4(2) was not sufficiently argued

You have not specifically laid out how disclosure of these documents would cause a reasonably foreseeable and not purely hypothetical harm to one of the protected interests under Article 4(2). Nor have you properly considered the public interest (which I have laid out in point 2).

4. The Union institutions must conduct their work as openly as possible
Article 15 of the Treaty on the Functioning of the European Union states: "1. In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible."

As stated in Case C‑280/11 P, the Court lays out the “advantage” of increased openness is that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

In addition to this, in relation to the right of access to EU documents, recital 4 in the preamble to Regulation (EC) No 1049/2001 states: "The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents".

Article 1 of Regulation 1049/2001 states: "The purpose of this Regulation is: (a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission … documents … in such a way as to ensure the widest possible access to documents."

5. Partial access was not considered
The granting of partial access to the documents was not considered. It is unlikely that the entire document is covered by the protected interest, I therefore ask that partial access is considered.

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

Yours faithfully,

Chloé Berthélémy

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/6061, sent on 29/12/2022 and registered on 04/01/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 25/01/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Ms Berthélémy,

I refer to your e-mail registered on 4 January 2023, by which you submit a
confirmatory application in accordance with Article 7(2) of Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents (hereafter ‘Regulation (EC) No 1049/2001’).

I would like to inform you that your confirmatory application is currently
being handled. Unfortunately, due to ongoing consultations, we are not in
a position to reply to your confirmatory request within the prescribed
time limit expiring on 25 January 2023.

Consequently, we have to extend this period by another 15 working days in
accordance with Article 8(2) of Regulation (EC) No 1049/2001. The new
deadline expires on 15 February 2023.

Yours sincerely,

SG.C.1. Access to Documents Team

sg-acc-doc@ec.europa.eu,

Dear Ms Berthélémy,

We refer to your e-mail registered on 4 January 2023, by which you submit
a confirmatory application in accordance with Article 7(2) of Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents (hereafter ‘Regulation (EC) No 1049/2001’).

We also refer to our holding reply of 25 January 2023, by which the time
limit for replying to your confirmatory application was extended by 15
working days, pursuant to Article 8(2) of Regulation (EC) No 1049/2001.

We regret to have to inform you that we will not be able to respond within
the extended time limit, which expires on 15 February 2023, as we have not
yet finalised the necessary consultations.

However, we can assure you that we are doing our utmost to conclude these
proceedings in order to provide you with a final reply as soon as
possible.

We regret this additional delay and sincerely apologise for any
inconvenience this may cause.

Yours sincerely,

SG.C.1. Access to Documents Team

Dear Migration and Home Affairs,

I would like to inquire regarding my confirmatory application registered on 4 January 2023. The extended time limit for a reply expired on 15 February 2023. You exceeded the time limit by 28 working days by now.

Could you please provide indication as to when you will be able to comply with your obligations pursuant to Article 8 of Regulation (EC) No 1049/2001 and and explanations justifying this important delay. Paragraph 2 of the same provision indicates that the delay "detailed reasons" should be given. Paragraph 3 further says that "failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty."

I am grateful for your reply.

Yours faithfully,

Chloé Berthélémy

Chloé Berthélémy

Dear Migration and Home Affairs,

I still have not received any reply from you on my confirmatory application, despite the extended deadline. You are not in compliance with the timelines set under Regulation (EC) No 1049/2001.

Therefore, I would like to inform you that if I don’t hear from you within 5 working days (before 14 April 2023), I will issue a complaint to the European Ombudsman for breach of your obligations under the aforementioned Regulation.

Best regards,

Chloé Berthélémy