Dear Secretariat General (SG),

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:

1. The internal document(s) setting out the organisation, roles and responsibilities of the Transparency Unit.

2. The internal documents with the 'procedures' about how the Transparency Unit enters into the public register individual entries.

3. The document(s) setting out the Quality Control procedures with which the Unit verifies that any particular entry into the register is factually correct in relation to the contents of the original document; for instance, how (a) the document title and date displayed in public register is (b) identical with the actual title and the date appearing in the document.

4. The internal document(s) setting out the classification of a Commission Decision as 'draft' and as 'final'.

5. The internal document(s) setting out the role, responsibilities and tasks of the Legal Services in relation to a final decision about the treatment of any document (candidate for release) in a confirmatory application.

6. The internal document(s) setting out rules or guidelines or similar arrangements about redaction of a document that is to be partially released to an applicant.

7. The internal document(s) setting out how the Commission services search for documents in internal registries of Commission documents pursuant to an application according to Regulation No 1049/2001.

8. The internal document(s) containing some kind of a list(s) of the disparate document registries in the various Directorates-General, and a short description thereof.

9. Any single 'Guideline' or 'Operational Procedures' or 'Operational Manual' or 'Handbook' or similar document(s) currently in 'force' in the different Directorates-General setting out the arrangements of a particular Directorate-General in its handling of an initial application pursuant to Regulation No 1049/2001. It is reasonable to expect that such documents are somewhat similar to the document drawn up by the Secretariat-General entitled 'STAFF GUIDE TO PUBLIC ACCESS TO COMMISSION DOCUMENTS'; the requested documents will be confined to matters pertaining to a single Directorate-General.

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

I refer to my application dated 20/6/2013 that the Transparency Unit registered earlier today.

The reply states "your application will be handled by DG MARE within 15 working days", which is very surprising. More specifically:

1. Documents under requests (1) to (4) and (6) must have been drafted by the Secretariat-General only. Request under (4) comes immediately after a specific request about the Transparency Unit and the public register of Commission documents. Request under (4) is simply requesting the documents containing the 'rules' of how a Commission Decision is entered as 'draft' or 'final' in the public registry.

2. Documents under request (5) are drafted either by the Secretariat-General or the Legal Services

3. For documents under request (7) and (8), Secretariat-General appears to be the 'lead' author.

4. It is only documents under request (9) that are probably not drafted by the Secretariat-General but by other Directorates-General.

It can thus be inferred that it is impossible DG MARE to have assumed the main responsibility of providing the initial answer.

It is kindly requested that the Secretariat-General checks the application in the light of article 10 or Commission Decision 937/2001 and the above considerations.

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

First of all, I would like to sincerely thank the Secretariat-General for the exemplary handling of my initial application and the very informative annex.

This note clarifies my requests and reflects on the information the Secretariat-General has provided me. In summary, it is expected that the Commission services will release the documents held by the services and falling under the scope of the present application.

A. RECAST OF REQUESTS #1 TO #3

I have mistakenly referred to the ‘Transparency Unit’ to the request #1 instead of the organisational division that is responsible for the ‘Register of the Commission Documents’, which will be referred to hereafter as the ‘Register Division’

Requests #1 to #3 are recast to:

1. The internal document(s) setting out the organisation, roles and responsibilities of ‘Register Division’.

2. The internal documents with the 'procedures' about how the ‘Register Division ’enters into the public register individual entries.

3. The document(s) setting out the Quality Control procedures with which the ‘Register Division’ verifies that any particular entry into the register is factually correct in relation to the contents of the original document; for instance, how (a) the document title and date displayed in public register is (b) identical with the actual title and the date appearing in the document.

For the purposes of procedural economy, it is suggested that the Transparency Unit ‘restart the clock by setting to zero’ the entire application (all requests).

B. MOTIVATION OF REQUESTS #2 to #4

The motivation of requests #2 to #4 is that some Decisions in the public register of the Commission documents are described as “Draft COMMISSION DECISION .....”. Four examples are listed below:

1. DG RTD - C(2009)5134/1 ”Draft COMMISSION DECISION amending Article 23.4 of Annex I of Council Regulation (EC) No 71/2008 of 20 December 2007 setting up the Clean Sky Joint Undertaking”

2. DG RTD - C(2009)5124/1 “Draft COMMISSION DECISION concerning an update to the 2009 work programme in the framework of the specific programme: 'People' to implement the Seventh Framework Programme (2007-2013) of the European Community for research, technological development and demonstration activities”

3. DG RTD - C(2009)4465/1 “Draft COMMISSION DECISION Establishing the provisions of support to the establishment and activities of the Secretary General of the European Research Council”

4. DG COMP - C(2008)6011/2 “Draft COMMISSION DECISION ON STATE AID C 9/2007 (ex N 08/2006) to Industria de Turbo Propulsores, which Spain intends to implement”

It appears therefore that according to the register there are indeed “Draft COMMISSION DECISIONS”. There may several causes of the popping up of “Draft COMMISSION DECISIONS”, including some programming errors in the IT application, or some mistyping by the staff of the ‘Register Decision’.

When faced with such search results in the register, the public may wonder whether no Decision was dully adopted, in which case a citizen may lodge an application pursuant to Regulation No 1049/2001 to form a proper view about a Decision. This, in turn, creates unnecessary administrative load to the Transparency Unit, for something that may turn out was a simple programming mistake.

There are other, seemingly, perplexing search results in the register. One example is given below, which concerns the search in the register for all documents ‘C(2008) 6011’. The search yields the following documents:

a) C(2008)6011/3 COMP (Competition) Date: 17/10/2008
Note à l'attention de Mmes et MM. les Membres de la Commission - CONTROLE DE L’APPLICATION DU DROIT COMMUNAUTAIRE – AIDES D’ETAT - Aide d'état C 9/2007 - Spain - R & D aid to ITP for the TRENT 1000 project - Le Secrétariat général diffuse, ci-joint, la version finale révisée en langue espagnole (faisant foi) du projet de décision du dossier cité en objet.Destinataires:

b) Number: C(2008)6011/2 COMP (Competition) Date: 17/10/2008
Draft COMMISSION DECISION ON STATE AID C 9/2007 (ex N 608/2006) to Industria de Turbo Propulsores, which Spain intends to implement
Document request

c) Number: C(2008)6011/1 COMP (Competition) Date: 13/04/2012
C 9/2007 Espagne R&D aid to ITP for the TRENT 1000 project

Documents under (c) and (a) above are dated 13/4/2012 and 17/10/2008 respectively but the order of their serial number appears to be reversed. Documents under (a) and (b) above appear to be drawn up on the same date, but their document titles are not necessarily aligned.

I hope that I have illustrated the motivation of my requests #2 to #4. I would like to note that I am requesting copies of existing documents and not the drawing up of new documents explaining the causes of the above ‘symptoms’.

C. ROLE OF LEGAL SERVICES

The request concerns “The internal document(s) setting out the role, responsibilities and tasks of the Legal Services in relation to a final decision about the treatment of any document (candidate for release) in a confirmatory application”.

In adopting a Decision about what parts of a document are to be released pursuant to a confirmatory application, my understanding is that the Secretary-General adopts a final decision after consultations with the Legal Services and most probably with the Directorate-General that handled the initial application. In some cases, there may be thorny issues at stake. In fact, the thornier the issue, the more important the legal advice becomes.

There are several hundreds of confirmatory applications per year, which probably are ‘trickier’ to handle than an ‘ordinary’ application that released the documents with the initial reply. One very thorny such request is the following one.

Consider ‘Guide to Financial Issues relating to FP7 Indirect Actions, Version 18/03/2013’, ftp://ftp.cordis.europa.eu/pub/fp7/docs/financialguide_en.pdf , and the time-sheets of page 57. DG INFSO – DG CNET has been collecting copies such time-sheets in the majority of its external financial audits. Either the signatory of the time-sheet or a third party may lodge an application pursuant to Regulation No 1049/2001 for time-sheets DG CNET manifestly holds. Request #15 of GestDem 2013-3520, http://www.asktheeu.org/en/request/fp7_a..., is exactly about time-sheets held by DG CNET.

It seems to me that this is indeed a ‘thorny’ request. Partially releasing the time-sheets will amount to an admission of possession. Not partially releasing them may be an infringement of Regulation No 1049/2001. The legal advice may be the decisive factor in the decision of the Secretary-General.

The situation will become far ‘thornier’ if the signatory of these time-sheets lodges a request. The Commission services may not rely on the confidentiality contractual clause of FP7.II.22 or FP6.II.29 (a private law contract) to deny rights accorded by Regulation No 1049/2001. Conceivably, they may rely on article 3 of Regulation No 1906/2006 to refuse access for time-sheets obtained pursuant to FP7.II.22; however, recourse to this provision presupposes that the beneficiary-auditee lawfully transferred to DG INFSO-DG CNET the time-sheets and that DG INFSO – DG CNET has complied with Regulation No 45/2001, which is probably not the case in view of the huge issues of the article 25 prior notification DG INFSO DPO-3338.1.

Moreover, an application of the time-sheet signatory pursuant to Regulation No 1049/2001 is the exercise of the right of article 41(2)(b) of the Charter of the Fundamental Rights of the EU ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’. Since there is no other secondary legislation providing for access to documents per se other than the said Regulation, it follows that such an application is indeed the exercise of one’s right to access his/her administrative file.

In such ‘thorny’ applications the exact role of the Legal Services has a tremendous importance. Not having thoroughly analysed the entire ‘legal landscape’ may risk offering incomplete legal advice to the Secretary-General, with the attendant consequence of risking non-compliance with Regulation No 1049/2001.

In view of the above considerations, it will be rather surprising if the Commission services have not drafted a few paragraphs about the role of the Legal Services in handling confirmatory applications. It will be unexpected if everything has taken place on ad-hoc basis for more than a decade.

D. REDACTION OF DOCUMENTS

The request concerns “6. The internal document(s) setting out rules or guidelines or similar arrangements about redaction of a document that is to be partially released to an applicant”.

What parts of a document are redacted are at the very core of complying with articles 4(6) and the exceptions of articles 4(1)(b) and 4(2) of Regulation No 1049/2001. Heavy-handed redaction may deprive an applicant of accessing parts of a document he/she is legally entitled to have access. While it is understandable and expected that the Commission services will err on the side of caution, that is to say when in doubt they will redact rather than release a part of a document, nevertheless excessive and manifestly unnecessary reduction may amount to an infringement of article 4(6).

The redaction of a partially released document is carried out by Commission staff, and probably checked by a second official. However, without some kind of a ‘guideline’ what is redacted will be left to personal judgement, and therefore risk inconsistency, even arbitrariness. Consequently, applicants may effectively be discriminated, depending on who the official carrying out the redaction is and who the checking/supervising official is.

The above example of request GestDem 2013-3520 illustrates the issue. Provided that the identity of the data subject and the leftmost column are blanked out, the rest of the time-sheet (i.e. the hours per day) are to be released. Redacting the hours will not be necessary to comply with the exceptions of article 4 of Regulation No 1049/2001.

In the light of the above, it will be rather surprising if a few paragraphs where not drawn up about the extent of redaction of partially released documents.

E. SEARCH OF DOCUMENT REGISTRIES

The request concerns “7. The internal document(s) setting out how the Commission services search for documents in internal registries of Commission documents pursuant to an application according to Regulation No 1049/2001”.

Article 12(4) of Regulation 1049/2001 reads ‘Where direct access is not given through the register, the register shall as far as possible indicate where the document is located’. The Commission has very sophisticated document management systems that include not only comprehensive registers but also full-text search functionality; Ares is a prime example as a document registry. So although technically it is straightforward to make publicly available part of the Ares registry (e.g. blanking out correspondence with natural persons), the Commission has not done so.

The public is entitled to request a ‘statement of contents’ of parts of Ares (even the whole registry for a year) and the Commission is obliged to releases according to a relevant Judgement of the General Court.

The above suggest that, conceivably, the public could itself search for documents instead of the Commission services, thereby lessen the administrative load of the Commission services and also improve the success rate of correctly identifying documents.

How exactly document registries are searched has an impact of what documents are indentified. For ‘thorny’ requests, a Directorate-General may not be that diligent in searching for documents falling under the scope of an application. Existing documents may not identified, in which case the applicant will have to either accept the initial reply or argue in the confirmatory application for the existence of documents. In other cases, administrative backload (as the Commission services informed the applicant has been the case in the recent months) may either cause a delay in the processing of applications or cause a failure to identify all relevant documents.

In a way, the present clarifications advance arguments for a probable existence of documents on the grounds of sound administration. A sufficiently ‘good’ public register of Commission documents pursuant to the aforesaid article 12(4) would have made such arguments and the present clarifications redundant.

Turning to request #9, it appears that there are two documents that the Secretariat-General did not identify, perhaps due to the high number of requests in the recent months. These are:

- DG RTD-R Note ‘Handling of applications for public access to documents’ Ares(2011) 248514 – 07/03/2011

- The Secretariat-General document released to Statewatch ‘STAFF GUIDE TO PUBLIC ACCESS TO COMMISSION DOCUMENTS’, http://www.statewatch.org/news/2009/apr/...

As the other requests have stated, in the light of the above, it will be rather surprising if a few paragraphs where not drawn up about how Commission staff search internal document registries.

F. LIST OF DISPARATE DOCUMENT REGISTRIES

The request concerns “8. The internal document(s) containing some kind of a list(s) of the disparate document registries in the various Directorates-General, and a short description thereof”.

In its information note, the Secretariat-General provided me with some information about Ares. It is clarified that the request is not about Ares. It is about the document registries kept by Directorates-General, Directorates and Units. Such a list might be found in one of the several feasibility studies about document management in the Commission.

In my view, the Secretariat-General has not released a document about this particular request.

G. GUIDELINES AND MANUALS

This is request #9 of the initial application. The document DG RTD-R Note ‘Handling of applications for public access to documents’ Ares(2011) 248514 – 07/03/2011, is certainly one of the documents to be fully released. The ‘STAFF GUIDE TO PUBLIC ACCESS TO COMMISSION DOCUMENTS’ is not to be released, since it is already publicly available.

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

This is to sincerely thank the Commission services for having provided me with the initial replies to requests GESTDEM No 3308, 4015, 4016 and 4017.

Furthermore, the applicant expresses his utmost appreciation that Secretariat-General drew up the Annex to the reply of GESTDEM 2013/3308 , corresponding to request under (9), even though an Institution is not obliged to compile a document pursuant to a application under Regulation No 1049/2001.

Finally, the applicant notes that he will be looking forward to receive the initial reply to the following pending requests.

A. GESTDEM 2013/3944, requests under (1) - (3)

The request is being handled by SG Unit R.4 and are about (reflecting the 'recasting' - rewording):

"1. The internal document(s) setting out the organisation, roles and responsibilities of the SG R.4 Unit managing the public register of Commission Documents."

"2. The internal documents with the 'procedures' about how the SG R.4 Unit enters into the public register individual entries."

3. The document(s) setting out the Quality Control procedures with which the SG R.4 Unit verifies that any particular entry into the register is factually correct in relation to the contents of the original document; for instance, how (a) the document title and date displayed in public register is (b) identical with the actual title and the date appearing in the document."

B. GESTDEM 2013/3944, request under (8)

The request is being handled by the SG B.2 Unit and is about "The internal document(s) containing some kind of a list(s) of the disparate document registries in the various Directorates-General, and a short description thereof."

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

I would like to thank the Secretariat-General for having provided me with the requested documents.

The additional provision of information, where documents where not held, has been most welcome and highly appreciated.

Yours faithfully,

Kostas VITSOS