Dear European External Action Service,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I wish to request a Signal message from Austrian foreign minister Alexander Schallenberg introducing his successor Beate Meinl-Reisinger with a selfie. The Signal message was sent to a group chat in which High Representative Kallas is administrator, according to this interview with Meinl-Reisinger:

https://www.derstandard.at/story/3000000...

Yours faithfully,

Alexander Fanta
Follow the Money
Rue Aguste Orts 2
1000 Bruxelles

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 'Signal message from Alexander Schallenberg'.

In regard to the international relations exception of Regulation 1049/2001 that was invoked, I note that the Court of Justice of the EU has said that the risk of jeopardizing international relations must be reasonably foreseeable and not purely hypothetical (CJEU, 21 July 2011 Case C-506/08 P, Sweden v MyTravel and Commission.) The institution must show that the document requested specifically and actually undermines the interest protected by the exception. (CJEU, 28 November 2013, Case C-576/12 P, Ivan Jurasinovic v Council of the
European Union, paragraph 45.) That should mean that the exception on international relations does not apply simply because the subject matter of a document ‘concerns’ international relations.

In the present case, the EEAS seems to imply that simply because the message was shared within a Signal group used for non-public exchanges, that means that anything shared within that group, if disclosed, would undermine the confidentiality of the group and thus the protected interest. If that is indeed the argument, then I ask the EEAS to make it clear.

To counter the above argument, I hold that it would be a fallacy to assume that any disclosure from a particular channel of exchange would be a breach of confidentiality of the entirety of that channel. Otherwise, any disclosure via a particular e-mail list, would mean no e-mail from the same e-mail list could ever be disclosed. Implicitly, the EEAS appears to argue for a general presumption of non-disclosure of content from Signal groups. I believe no such presumption has been recognized in the law or case law of the court. Furthermore, the Fundamental Rights Charter states that documents should be disclosed “whatever the medium”.

Furthermore, I note that, according to the Ombudsman’s interpretation in its access to documents guide, international relations does not encompass how the EU institutions interact with Member States on matters that fall within the scope of EU law. Therefore, a message sent to a group chat of ministers and the head of the EEAS should not necessarily engage the international relation’s exception.

As for the argument that “any disclosures may also undermine the EU’s ability to manage its external relations with third countries”, again I wonder how that relates to the specific message to which I requested access.

To be even more specific, I would like to understand what understanding of harm the EEAS has in relation to disclosing a selfie. I find it hard to see any harm, and I believe neither would the Ombudsman, the General Court or the public.

As for the exception for the protection of privacy and the integrity of the individual, the EEAS argues that the message “contains personal data, namely a photo reproduction of two individuals which was not intended to be disclosed to the general public”.

First, I find that whether or not the photo was intended for disclosure is not a criteria recognised in the Regulation. Indeed, I can not see how disclosure of the photo could undermine either the privacy or integrity of Mr. Schallenberg or Ms. Meinl-Reisinger. I note that both are public figures, and their pictures are frequently distributed via press services including that of the Council of the European Union.

But even if one were to recognise the application of the EU’s data protection regulation in this case, I would argue for the necessity of the transfer of this data. I note that I make my request in my role as journalist seeking information about the actions of public figures, an action that Ms. Meinl-Reisinger has alluded to this publicly when she talked about the selfie in the interview with Der Standard. I wish to fact-check her statement, and check whether she has indeed sent the picture as part of my journalistic investigation. I regard this as a specific and succinct reason establishing the necessity of the data transfer.

Yours faithfully,

Alexander Fanta