Ref. Ares(2023)7658031 - 10/11/2023
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
Resources and Support
Compliance and Planning
Brussels, 10 November 2023
CNECT.R.4.001
Ms Margarida Da Silva
By email: ask+request-12946-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – EASE 2023/2602
Dear Ms Da Silva,
We refer to your email dated 4/05/2023 wherein you make a request for access to
documents pursuant to 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 (hereinafter ‘Regulation 1049/2001’), registered under the
abovementioned reference number. We also refer to our holding reply, dated 30/05/2023,
whereby we informed you that the time limit for handling your application was extended
by 15 working days pursuant to Article 7(3) of Regulation 1049/2001.
1.
SCOPE OF YOUR APPLICATION
Your application reads as follows:
΄΄….
documents
which
contain
the
following
information:
- minutes and any other reports of meetings held by DG CNECT and OpenAI.
- all correspondence (i.e. any emails, correspondence, or telephone call notes between
DG CNECT and Open AI. ….΄΄
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
We have identified the following documents as falling within the scope of your application:
- BTO - Meeting, Open AI, San Francisco – reg number Ares(2023)2846364
(
Document 1)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
- BTO – Meeting between Roberto Viola and Open AI, 31 March 2023 Reg.
number: Ares(2023)2474974 (
Document 2)
- BTO – meeting with OpenAI.16.06.22 - Reg. number: Ares(2022)4413214
(
Document 3)
- BTO – meeting with OpenAI. 13.04.22 Reg. number: Ares(2022)4440393
(
Document 4)
- Feedback for requirements for AI – Open public consultation - Reg. number:
Ares(2021)4923889 (
Document 5)
tem 9
- Feedback to open public consultation about AI white paper Reg. number:
Ares(2020)2315729 (
Document 6)
- Meeting request from OpenAI_31/3/2023 number: Ares(2023)1351889
(
Document 7)
- Meeting with Open AI and A2_13.04.24 Reg. number: Ares(2022)3757369
(
Document 8)
- Director General Viola: request for Meeting with Open AI 22.02.23 Reg. number:
Ares(2023)1317290 (
Document 9)
3.
ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001, we have arrived at the conclusion that partial access can be granted to eight
documents and access must be refused to one document. Full and partial disclosure is
prevented by exceptions to the right of access laid down in Article 4 of Regulation
1049/2001. Please note that parts of Document 1 have been also redacted as being outside
the scope of the request.
A. Partial Access
(i) Protection of privacy and integrity of the individual
Disclosure of parts of Documents 1 - 8 is prevented by the exception concerning the
protection of privacy and integrity of the individual outlined in Article 4(1)(b) Regulation
1049/2001, since they contain the following personal data:
- Names, functions, contact of Commission staff members not pertaining to the senior
management
- Names, initials, functions, contact of other natural persons.
Article 9(1)(b) of the Data Protection Regulation1 does not allow the transmission of these
personal data, except if you prove that it is necessary to have the data transmitted to you
for a specific purpose in the public interest and where there is no reason to assume that the
legitimate interests of the data subject might be prejudiced. In your request, you do not
express any particular interest to have access to these personal data nor do you put forward
any arguments to establish the necessity to have the data transmitted for a specific purpose
in the public interest.
1 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 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, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39.
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Consequently, I conclude that, pursuant to Article 4(1)(b) Regulation 1049/2001, access
cannot be granted to the personal data contained in the requested documents, as the need
to obtain access thereto for a purpose in the public interest has not been substantiated and
there is no reason to think that the legitimate interests of the individuals concerned would
not be prejudiced by disclosure of the personal data concerned.
(ii) Protection of commercial interests
Article 4(2) first indent of Regulation 1049/2001 provides that the institutions shall refuse
access to a document where disclosure would undermine the protection of commercial
interests of a natural or legal person, including intellectual property, unless there is an
overriding public interest in disclosure.
This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which requires staff members of the EU institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
Parts of Documents 2 and 3 are covered by the abovementioned exception as they contain
confidential and business sensitive information relating to the concerned third party’s
activities, positions, strategies and views.
Parts of Document 7 and 8 originate from a third party and contain business information
relating to the third party’s positions, views, strategies and activities. After assessment we
have come to the conclusion that a disclosure of these parts could undermine the
commercial interests of the third party.
Disclosure of the abovementioned parts of Documents 2, 3, 7 and 8 would seriously affect
the third party’s relations and position in the market and would undermine its commercial
interests. Therefore, we have blanked out
the relevant parts as their disclosure is prevented
by the exception to the right of access laid down in Article 4(2), first indent of Regulation
1049/2001.
(iii) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess to
a document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be refused
if disclosure of the document would seriously undermine the institution’s decision-making
process, unless there is an overriding public interest in disclosure.’
Parts of Document 4 are covered by the abovementioned exception of the first
subparagraph of Article 4(3) since they contain sensitive information with regard to an
ongoing legislative procedure relating to the AI Act. They also contain considerations,
reflections and views of the Commission services and of other parties. The content of these
parts are subject to ongoing discussions and deliberations.
The Commission services must be free to explore all possible options with regard to
ongoing initiatives and policy processes. The risk of disclosing sensitive information
regarding the Commission services’ preliminary views while the decision-making process
on the issue at question is still ongoing would deter them from freely expressing their
opinions and having frank, internal discussions. Speculations and misinterpretations of the
3
public on the views, positions, considerations put forward during the ongoing decision-
making process would affect the exploration of different policy options and unduly restrict
the Commission’s internal space to think, exposing the Commission to external pressure.
Disclosure of these parts of Document 4 would therefore seriously undermine the ongoing
decision-making process. This risk is also reasonably foreseeable and not purely
hypothetical
Consequently, the above-mentioned parts of Document 4 have been blanked out as its
disclosure is prevented by the exceptions of Article 4(3) of Regulation 1049/2001.
B. Non-disclosure
We regret to inform you that access to Document 9 cannot be granted as disclosure is
prevented by exceptions to the right of access laid down in Article 4 of Regulation
1049/2001.
Disclosure of Document 9 is prevented by the exception of Article 4(2) first indent of
Regulation 1049/2001 with regard to the protection of commercial interests of a natural or
legal person, including intellectual property. Document 9 originates from a third party and
contains business information relating to the third party’s positions, views, strategies and
activities. After assessment we have come to the conclusion that a disclosure could
undermine the commercial interests of the third party. Therefore, access to these
documents cannot be granted as their disclosure is prevented by the exception to the right
of access laid down in Article 4(2), first indent of Regulation 1049/2001.
Moreover, parts of Document 9 contain personal data, in particular the names, functions,
and contact details of Commission staff members not pertaining to the senior management
and names, functions and contact details of other natural persons, thus their disclosure is
prevented by the exception of Article 4(1)(b) of Regulation 1049/2001 for the reasons set
out in Section 3A(i).
We have considered whether partial access could be granted to Document 9. However,
partial access is not possible considering that this document is covered in its entirety by
the abovementioned exceptions of Article 4 of Regulation 1049/2001.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and Article 4(3) of Regulation 1049/2001 apply,
unless there is an overriding public interest in the disclosure of documents. Such an interest
must, firstly, be a public interest and, secondly, outweigh the harm caused by disclosure.
We have examined whether there could be an overriding public interest in the disclosure
of the parts of the documents which are being withheld but we have not been able to
identify such an interest.
5.
REUSE OF DOCUMENTS
You may reuse public documents which have been produced by the European Commission
or by public and private entities on its behalf based on
the Commission Decision on the
reuse of the Commission documents. You may reuse Documents 1 - 4 and the parts of
Documents 7 and 8 originating from the Commission free of charge and for non-
commercial and commercial purposes provided that the source is acknowledged and that
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you do not distort the original meaning or message of the documents. Please note that the
Commission does not assume liability stemming from the reuse.
Please note that Documents 1 - 4 were drawn up for internal use under the responsibility
of the relevant services of DG CONNECT. They solely reflect the services’ interpretation
of the interventions made and do not set out any official position of the third parties to
which the documents refer, which were not consulted on their content. They do not reflect
the position of the Commission and cannot be quoted as such.
Documents 5 and 6 reproduce positions originating from third parties. Please note that they
are disclosed to you based on Regulation (EC) No 1049/2001. However, this disclosure is
without prejudice to the rules on intellectual property, which may limit your right to
reproduce or exploit the released documents without the agreement of the originators, who
may hold an intellectual property right on them. The European Commission does not
assume any responsibility from their reuse.
6.
CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position.
Such confirmatory application should be addressed within 15 working days upon receipt
of this letter to the Secretariat-General of the Commission
by asking for a review via your
portal[1] account (available only for initial requests submitted via the portal account),
or via 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:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Electronically signed
Roberto Viola
Enclosures:
8
[1]
https://www.ec.europa.eu/transparency/documents-request
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Electronically signed on 10/11/2023 15:51 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121
Document Outline