Ref. Ares(2021)1602587 - 03/03/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR MIGRATION AND HOME AFFAIRS
Directorate D: Law Enforcement and Security
Unit D.4 : Cybercrime
Brussels
HOME.D.4/AP
Subject:
Your application for access to documents – GESTDEM 2021/0614
Dear Mr Stolton,
We refer to your e-mail of 9 February 2021 in which you make a request for access to documents,
registered on 10 February 2021 under the above-mentioned reference number.
Your application concerns a very large number of documents, which need to be assessed individually.
Additionally, some of the documents requested originate from third parties, which have to be
consulted. Such a detailed analysis cannot be carried out within the normal time limits set out in Article
7 of Regulation (EC) No 1049/2001.
However, Article 6(3) of Regulation (EC) No 1049/2001 also provides for a possibility to confer
with an applicant informally with a view to finding a fair solution when an application relates to a
very long document or concerns a very large number of documents.
In accordance with the case law of the EU Courts, such a solution can only concern the content or
the number of documents requested, not the deadline for replying1. This means that the scope of the
request must be reduced in a way that would enable its processing within the extended deadline of
15 + 15 working days.
Based on the above-mentioned provision, we would kindly ask you to specify the objective of your
application and your specific interest in the documents requested 2, and whether you could narrow
down the scope of your application (i.e. the subject matter(s) and/or timeframe covered), so as to
reduce it to a more manageable amount of documents.
In order to help you to narrow down your application, please note that the following categories of
documents have been identified as falling under the scope of your request. Please note that the listing
of documents in this table does not indicate that the documents can be disclosed fully or partially, as
the possibility to disclose any or all information contained in the relevant document still needs to be
assessed.
No Category of document Approximate contents/relevance for
Date
Indicative nr
the request
of relevant
pages
Informal exchanges of Messages pertaining to a number of
35
1
Judgment of the Court of Justice of 2 October 2014,
Strack v
European Commission,
C-127/13,(hereinafter referred to as the ‘
Strack v
Commission judgment’), EU:C:2014:2250, paragraphs 26-28.
2
Strack v
Commission judgment , paragraph 28; Judgment of the General Court (then 'Court of First Instance') of
22 May 2012,
EnBW Energie Baden-Württemberg v
European Commission, T-344/08, EU:T:2012:242,
paragraph 105.
e-mail between
different issues:
Commission officials.
- negotiations
of
e-Privacy
regulation in 2019,
- exchanges related to Child sexual
abuse Interim Regulation
- preparation of press releases
related to the work on CSA,
- internal
discussion
on
presentation of CSA Strategy,
- preparation of the work on CSA
in the framework on the EU
Internet Forum
that may include information about
PhotoDNA or references to Photo
DNA as an example of a technology
used.
Written replies to
Information about how PhotoDNA is
10/11/2020
35
follow-up questions
used (what type of services it is used
from the European
in)
Parliament on the
Child sexual abuse
Interim Regulation
Discussion papers and Discussion papers contain references
March 2020 –
25
minutes from
to PhotoDNA as an example of a
July 2020
meetings between
technology used as part voluntary
services and Cabinet
measures to detect child sexual abuse
on issues around
material.
fighting child sexual
abuse
Briefings prepared by
References to PhotoDNA as an
January 2020 –
70
DG HOME (HOME
example of a technology used as part
January 2021
internal and for
voluntary measures to detect child
Cabinets)
sexual abuse material, outline of what
photoDNA is and how it works.
Reports and technical Summary of exchanges in the
15 and 28
40
papers for the
Telecom Working Party
September 2020
Council: E-privacy
Regulation; Child
sexual abuse Interim
Regulation meetings
in the Council
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
2
Informal reports from
Summary of exchanges in the trilogue, 17 December
15
the discussion on the
including the discussion of error rate
2020
Child sexual abuse
of PhotoDNA
Interim Regulation
meetings in European
Parliament
Reports from
Meetings/exchanges related to a range April 2020
15
meetings / exchanges
of topics including fight against
29/10/2020
with the creators of
disinformation, radicalisation and
photoDNA
child sexual abuse that may include
e-mail 8/4/2020
information about PhotoDNA or
references to Photo DNA as an
example of a technology used.
Letters exchanged between Microsoft
& Commissioner Johansson
(Ares(2020)6100804,
Ares(2020)4589540), containing a
brief outline of history of photo DNA
creation and use.
Reports from
This category includes meeting
Feb 2020 - Dec
25
meetings with
reports/notes, exchanges of messages
2020
industry
and letters, feedback submitted to
representatives, and
Inception Impact Assessment
other exchanges
where Photo DNA
was mentioned
Background
Reference to PhotoDNA in a footnote
28/1/2/21
30
paper/discussion
explaining hashing tools.
papers from expert
meetings
According to our first estimation, your request for access to documents would imply the detailed
assessment of at least 280 pages, probably significantly more.
According to our very first estimates, the handling of your request would take at least 42 working
days3, broken down as follows:
- retrieval and establishment of a complete list of the documents identified: [5] working days;
- assessment of the content of the documents in light of the exceptions of Article 4 of
Regulation (EC) No 1049/2001: [12] working days:
3
Taking into account other applications for access to documents and other tasks that the staff concerned are likely
to have to deal with during the same period.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
3
- third party consultations: [10] working days;
- final assessment of the documents in light of the comments received: [5] working days;
- drafting of the reply: [1] working day;
- redaction of those parts of the documents to which one or several exceptions apply: [5]
working days;
- internal review and approval of the draft decision: [2] working days; and
- preparation of the reply and the documents for dispatch (scanning of the redacted versions,
administrative processing etc.): [2] working days.
Therefore, in accordance with Article 7 of Regulation (EC) No 1049/2001, it is not possible to process
and reply to your request within the prescribed time limits.
We would like to draw your attention to the fact that informal e-mails are automatically deleted
after 6 months, therefore we are not able to retrieve exchanges older than 6 months. We would like
to point out that the search for informal notes and communication may not be complete. References
to PhotoDNA appear in a different contexts on a variety of topics. The workload involved in tracing
every reference to PhotoDNA in mailboxes and files of numerous units in DG HOME is therefore
very high.
It is important to note that the content of exchanges, reports, discussion papers etc., refer to many
topics, of which your request would only concern a part. Some documents include a reference to
PhotoDNA merely as an example of a hashing technology, without presenting any information
about the technology itself. It is therefore necessary to thoroughly evaluate each document to assess
to what extent the individual information is relevant and whether it can be made public.
Additionally, some of the documents requested originate from third parties, which have to be
consulted in case the European Commission comes to the conclusion that (part of) a document can
be released. The workload is therefore very high and cannot be dealt with within the legal deadlines.
As a result, we have attempted to identify those documents which a priori would seem to be most
relevant to your request as they contain the most detailed information. We would be in a position to
assess and give you an answer to your request on the following documents:
- letters exchanged between the Commissioner and Microsoft
- reports from calls/meetings with the creators of PhotoDNA
- technical information provided to the Council in 2019 during e-Privacy Regulation
Negotiations
- technical information provided to the European Parliament and the Council in 2020.
In order to enable us to respect the time-limits of Regulation (EC) No 1049/2001, we would ask you
for a swift reply to our invitation to propose a fair solution,
within five working days at the latest:
by e-mail to
: xxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
If you have any questions concerning the invitation, you can contact us:
by e-mail at
: xxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
In the absence of a reply within five working days, we will unilaterally restrict the scope of your
application to those parts that can be dealt with within the extended deadline of 30 working days,
counting from the registration of your application on 10 February 2021.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
4
Thank you in advance for your understanding.
Yours sincerely,
(e-signed)
Cathrin BAUER‑ BULST
Head of Unit
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
5
Electronically signed on 03/03/2021 09:14 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482