Dear European External Action Service,

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 regarding the EU's San Francisco office:

- Mandate / terms of reference / job description of the EU Ambassador to Silicon Valley;
- mission letter/ objectives of the office;
- budget & resources of the office;
- policies for handling interactions with interest representatives.

Yours faithfully,

Margarida da Silva

KNSM-laan 17
1019 LA Amsterdam, The Netherlands

Dear EEAS ACCESS TO DOCUMENTS,

Thank you for your reply.

Prior to possibly filing a confirmatory application, do I understand correctly from your reply that there are no documents that contain information on the budget of the office nor policies/guidance for handling interactions with interest representatives?

Yours sincerely,

Margarida da Silva

Dear European External Action Service,

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 'San Francisco office', reference number 2022/143.

In concrete, I am asking you to:
1- Verify that the scoping exercise done for this access to documents has been thorough.
2 - Review your decision to grant only partial access to the note with a draft concept on the scope and tasks of the EU office in the San Francisco Bay Area.
3 - Consider whether the public interest of citizens to access the concerned information regarding the EU’s interactions with corporate interests and public spending has been properly assessed, namely whether it has been balanced against protected interests and it is outweighing their harm

1- In your response you stated that you had searched the EEAS filing systems and documents management databases for documents containing information regarding the:
- mandate / terms of reference / job description of the EU Ambassador to Silicon Valley;
- mission letter/ objectives of the office;
- budget & resources of the office;
- policies for handling interactions with interest representatives.

Yet, you have identified only one document - an information note with a draft concept on the scope and tasks of the EU office in the San Francisco Bay Area.

Following your reply dated 12/10/2022, I have sent you a follow-up request to clarify whether your reply implies that there are no other documents that contain information on the budget of the office nor policies/guidance for handling interactions with interest representatives.

As this new mission has already started its activities and has been reported by media outlets to employ between 2 to 4 officials, it is fair to assume that there will be other documents that state, amongst other things, a final version of tasks, responsibilities, resources and budgets.

The fact that in your reply you have identified only one document suggests that either your scoping exercise was too limited or there are serious problems with the document archiving practices at the EEAS.

2- Not only did your reply identify only one document falling within scope it also only granted partial access to it, redacting several parts under the exception laid out in Article 4(a)(1), third indent of the Regulation 1049/2001.

You have argued that disclosing these sections “could adversely affect the capacity of the EU to pursue its strategic goals and actions in this field, undermining as such the protection of the public interest as regards international relations”.

Regulation 1049/2001 is meant to provide the fullest possible access to documents of the Institutions and any derogations from this right, as the exceptions set out in Article 4(1)(a) need to be interpreted and applied strictly (Case C506/08 P Sweden v MyTravel and Commission [2011]).

For that reason, whenever rejecting access (total or partially) the EU bodies need to explain how such disclosure could “specifically and actually” cause harm to compensate denying citizens of their fundamental right of access to documents. (C‑350/12 P; T‑851/16).

Simply stating that the release of the documents could have a “negative impact” is not sufficient in demonstrating the harm is of such a level that it would justify denying a citizen their fundamental right of access to documents.

In your response you did not sufficiently demonstrate how full disclosure of the document would cause a “reasonably foreseeable and not purely hypothetical” harm under Article 4(1)(a), as required by well-established EU case law. (C‑350/12 P; T‑851/16)

Further, EU bodies are not excused from the need to explain how disclosure would cause specific harm just because the documents in question deal with affairs linked to the exceptions listed in Article 4(1)(a).

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.”

This is also the case in cases relating to “international relations”. In fact, case law has shown that international relations should not be treated as an absolute exception and, when answering to access to document requests the Institutions should take into account the public interest in disclosure (C-350/12 P - Council v in 't Veld).

3 - The documents requested are of particular public interest as they relate both to public spending and EU relationships with corporate interests. The new office in the Bay Area seems to be mostly dedicated to interacting with corporate interests, specifically those of Silicon Valley companies and venture funds. Media reports have also implied that the office would be involved in the implementation of EU policies such as the Digital Markets Act and the Digital Services Act.

While the office is a part of the EU’s international mission its focus is not to interact with third countries – hence the international relations exception should not apply.

Further, disclosing information of the EU’s relationships with corporations is well-understood to be a pre-requisite to democratic accountability and to allow citizen participation in EU affairs.

This is especially true in a case where it requires the creation of new positions and new budget lines from public funding. Citizens and journalists ought to be able to access information regarding the spending of EU Institutions. Disclosing this information is hence in the public interest.

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

Yours faithfully,

Margarida da Silva