infringement proceedings Data Retention Directive (2006/24/)

La demande a été rejetée par Migration et affaires intérieures.

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 et affaires intérieures

1 Attachment

<<20111221153236932.pdf>>

European Commission
Directorate General Home Affairs
Directorate A: Internal Security
Unit A3: Police co-operation and access to information
LX46 3/20
B-1049 Brussels, Belgium
Tel: +32.2.29.83.019
Fax: +32.2.29.79.584
e-mail: [email address]

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-----Original Message-----
From: KerstiRu [[1]mailto:[FOI #21 email]]
Sent: Friday, November 18, 2011 6:30 PM
To: HOME ACCESS DOCUMENTS
Subject: 312.access to information request - infringement proceedings
Data Retention Directive (2006/24/)

     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
    
     -------------------------------------------------------------------
    
     This is a request for access to information under Article 15 of the
     TFEU and, where applicable, Regulation 1049/2001 which has been
     sent via the AsktheEU.org website.
    
     Please kindly use this email address for all replies to this
     request: [FOI #21 email]
    
     If [DG HOME request email] is the wrong address for
     information requests to Home Affairs (HOME), please tell the
     AsktheEU.org team on email [email address]
    
     This message and all replies from Home Affairs (HOME) will be
     published on the AsktheEU.org website. For more information see our
     dedicated page for EU public officials at
     [2]http://www.asktheeu.org/en/help/officers
    
    
    
     -------------------------------------------------------------------

References

Visible links
1. mailto:[FOI #21 email]
2. http://www.asktheeu.org/en/help/officers

cacher les sections citées

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:
http://www.asktheeu.org/request/infringe...

Yours faithfully,

KerstiRu

Migration et affaires intérieures

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
SG.B.5.
Transparence.

-----Original Message-----
From: KerstiRu [mailto:[FOI #21 email]]
Sent: Tuesday, December 27, 2011 10:25 PM
To: HOME ACCESS DOCUMENTS
Subject: Internal review of access to information request - infringement proceedings Data Retention Directive (2006/24/)

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:
http://www.asktheeu.org/request/infringe...

Yours faithfully,

KerstiRu



-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #21 email]

This message and all replies from Home Affairs (HOME) will be
published on the AsktheEU.org website. For more information see our
dedicated page for EU public officials at
http://www.asktheeu.org/en/help/officers


-------------------------------------------------------------------

cacher les sections citées

Migration et affaires intérieures

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 et affaires intérieures

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
2011/5894.

<<Wissenbach - EN final.pdf>>

Enclosures :

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

Yours sincerely,

BLURIOT-PUEBLA Madeleine

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

References

Visible links
1. mailto:[email address]