o European Asylum
Support Office

 

Valletta Harbour, 21 May 2021
EASO/ED/2021/154
Ms Luisa Izuzquiza

Sent by email to: |.izuzquiza.ks3zp53n6t@fragdenstaat.de;
l.izuzquiza.xnwbx69hnp@fragdenstaat.de

Subject: Your application for access to EASO documents (No. 01215/01216)

Dear Ms Izuzquiza,

Reference is made to your correspondence dated 29 March 2021, in which you submitted to EASO
(two) open-ended requests for access to the following categories of documents:

i) EASO’s support in the development of new reception facilities in Greece (No. 01215):

1) All documents - including, but not limited to, reports, assessments, notes, briefings, analysis,
studies, papers or non-papers, and any annexes - created or held by EASO regarding, related
to, or produced as an outcome to the above-mentioned first technical mission to assess the
suitability of the new reception facilities;

2) Allcorrespondence - including, but not limited to, letters, e-mails, and any attachments - sent
or received by EASO representatives regarding, related to, or mentioning the above-
mentioned first technical mission to assess the suitability of the new reception facilities;

3) All documents - including, but not limited to, reports, assessments notes, briefings, analysis,
studies, papers or non-papers, status updates, and any annexes — created or held by EASO
regarding, related to, or mentioning the above-mentioned support EASO is delivering with
regards to site planning, conditions in the temporary site, and design of the new site;

4) Allcorrespondence - including, but not limited to, letters, e-mails, and any attachments - sent
or received by EASO representatives regarding, related to, or mentioning the above-
mentioned support EASO is delivering with regards to site planning, conditions in the
temporary site, and design of the new site;

and

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ii) EASO’s involvement in the development and implementation of Joint Pilot for the establishment of
a new Multi-Purpose Reception Centre in Lesvos (MPRIC) (No. 01216):

5) All studies, reports, evaluations, and assessments of any kind conducted by the EASO for the
development and construction of the new MPRIC, i.e.: for the “Design and planning services
for the new MPRIC and technical teams to support creation according to EU standards and EU
best practice model (architects, etc.), including based on lessons learned via the previous
Safety and Security Working Group (SSWG)”;

6) All documentation (including - but not limited to - reports, notes from field visits, legal basis,
legal analysis or guidelines) used by the EASO in order or as a basis to produce the
aforementioned studies;

7) All documents regarding the “monitoring mechanism” for the “handling of asylum cases at
second instance”. This may include, but not limited to:
- any reports, evaluations, guidelines, recommendations, and any draft produced to date for
this purpose; and all documentation (including - but not limited to - reports, notes from field
visits, legal basis, legal analysis or guidelines) used by the EASO in order or as a basis to create
the aforementioned mechanism;

8) For any and all meetings held or attended by the EASO to discuss or regarding the Greek
MPRIC:
- all agendas for each of these meetings;
- any record ofthe aforementioned meetings. This may include, but not necessarily limited to,
minutes ofthe meetings, verbatim reports ofthe meetings, transcripts etc, that would provide
a record of the proceedings ofthe meetings; and
- all documents prepared or received by the EASO for the purpose of these meetings and/or
distributed among the attendees before or during the course of these meetings (such as - but
not limited to - handouts, leaflets, briefings or background notes).

Please be informed that your requests (No. 01215 and 01216) have been treated as an application for
public access to documents falling under the provisions of Regulation (EC) No 1049/2001", in
accordance with Management Board Decision No 6 of 20 September 2011?.

l.  PRELIMINARY REMARKS

In the Agency’s view, the two afore-mentioned requests are inherently and strongly interlinked. In
particular, these overlap to a great extent in terms of the relevant documents identified. As a result
thereof, the Agency considers that these ‘two’ requests - objectively - rather entail one single
overarching application for public access to documents.

1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents, (OJL 145, 31.5.2001, p. 43).

2 Management Board Decision No 6 of 20 September 2011 laying down practical arrangements to the documents ofthe
European Asylum Support Office (EASO).

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
Wwww.easo.europa.eu info@easo.europa.eu Valletta, MRS 1917, MALTA

Therefore, having carefully examined your request and after having consulted the relevant internal
and external entities, please find below the Agency’s combined response concerning all ofthe above-
quoted document-categories under joint reference number 01215/01216.

ll. RELEVANT DOCUMENTS IDENTIFIED

After a particularly thorough and extensive exercise involving the engagement of multiple internal
entities, the Agency identified the following (categories of) documents falling under the scope of your
present request:

Category 1: Experts’ reports (multiple/different versions of experts opinions and reports on new
reception facilities in Greece, relating to technical reviews and opinions, including site plans and
blueprints of different locations);

Category 2: Report and opinion documents shared with the European Commission regarding the Grant
Application submitted by the Greek Authorities;

Category 3: Extensive internal and external email communication relating to new reception facilities
in Greeece (including with the European Commission and experts);

Category 4: The Grant Application and Grant Agreement concluded between the European
Commission and the Greek Ministry of Migration and Asylum;

Category 5: EASO Reception Guidance and Reception Conditions Directive;

Category 6: Minutes/Agendas of the Migration Management Steering Committee, co-chaired by
European Commission and Greek authorities;

Category 7: Briefing note for EASO’s Executive Director in preparation of a videoconference with the
European Commission and Greek Ministry for Migration and Asylum;

Category 8: Letter of EU Directorate General for Migration and Home Affairs to Greek Ministry for
Migration and Asylum.

I. EXCEPTIONS UNDER ARTICLE 4 OF REGULATION (EC) NO 1049/2001

EASO is highly committed to the principle of transparency and the rights of individuals to access
documents of EU institutions, bodies and agencies as laid down in both Article 15 of the TFEU and
Article 42 of the Charter of Fundamental Rights ofthe EU.

However, multiple exceptions under Article 4 of Regulation (EC) No 1049/2001 still need to be applied
in the present case warranting the non- or (only) partial disclosure of various documents, relating to:

a) The protection of commercial interests;

b) The protection of the decision-making process;
c) The protection of personal data; and

d) The protection of public security.

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
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The various sub-paragraphs below set out the Agency’s precise reasoning thereon, which is the result
of significant and substantial administrative efforts from the side of EASO - in accordance with the
principle of good administration:

Ad a) EASO’s assessment in relation to the protection of commercial interests

Article 4(2), first indent of Regulation (EC) No 1049/2001 provides that the institution shall refuse
access to a document where the disclosure would undermine the protection of commercial interests
of a natural or legal person, including intellectual property, unless there is an overriding public interest
in disclosure. Allofthe documents identified under categories 1, 2, 3, 4, 5, 7 and 8 are drawn up in the
context of a grant application and subsequently concluded grant agreement which reflect information
on methodologies, know-how, specific pricing and other information that carry a commercial value.
After a concrete individual assessment, the Agency deems that the disclosure of such documents
containing information relating to the execution of a service or of an action would undermine the
protection of the relevant natural or legal persons’ (i.e. the Greek Ministry for Migration and Asylum,
as well as the European Commission) expertise, strategy and creativity and thus their commercial
strength.

Although the Grant Agreement between the Greek Ministry for Migration and Asylum and European
Commission has been signed in the meantime, the implementation thereof will include different sub-
processes and public tenders, which, if disclosed at this stage would affect the commercial interests
and commercial strategies of various legal persons, including on intellectual property.

Ad b): EASO’s assessment in relation to the protection of decision-making process

Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that: “[alccess to a
document, drawn up by an institution for internal use or received by an institution, which relates to a
matter where the decision has not been taken by the institution, shall be refused if disclosure of the
document would seriousiy undermine the institution's decision-making process, unless there is an
overriding public interest in disclosure”. Moreover, the second subparagraph of the same Article
provides that: “[alccess to a document containing opinions for internal use as part of deliberations
and preliminary consultations within the institution concerned shall be refused even after the decision
has been taken if disclosure of the document would seriousiy undermine the institution's decision-
making process, unless there is an overriding public interest in disclosure”.

The documents identified by the Agency under Categories 1, 2, 3, 4, 5, 7 and 8 relate to technical
reviews and opinions, site plans of different locations for the development of new reception facilities
in Greece, drafted by experts in order to provide (technical) advice and support in deliberations
between relevant stakeholders. These categories documents were drawn up at the stage of ongoing
deliberations between stakeholders in the context of the preparation and evaluation of a grant
application, as well as the conclusion of a subsequent grant agreement. Notwithstanding that the
Grant Agreement between the Greek authorities and European Commission has been signed in the
meantime, the disclosure of those (preparatory) documents would still have a serious negative
impact on the independence and decision-making of the panel members involved in the evaluation
of the grant application (from the European Commission), as this would allow persons who were not
part ofthat panel, to exert ex-post external interference and pressure.

Moreover, the same documents are part ofthe ongoing process of developing new reception facilities
in Greece, where the final decisions on all of the definitive (follow-up) modalities have not yet been
taken. For instance, different sub-processes and procedures still need to be decided upon under the
Memorandum of Understanding between the European Commission, the European Asylum Support

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
Wwww.easo.europa.au info@easo.europa.eu Valletta, MRS 1917, MALTA

Office, the European Border and Coast Guard Agency, Europol and the Fundamental Rights Agency,
one the one part, and the Government of the Hellenic Republic, on the other part, on a Joint Pilot for
the establishment and operation of a new Multi-Purpose Reception and Identification Centre on
Lesvos?. That memorandum provides that the objective of the joint pilot is to channel the necessary
support to the Greek authorities for completing and operating, by early September 2021, an up-to-
standard fully functioning new MPRIC on Lesvos with a capacity of 5 000 people.

In EASO’s assessment, the disclosure of the above-mentioned documents would seriously undermine
the decision-making processes of both: {i) the European Commission - in evaluating the Grant
Application and concluding a subsequent Grant Agreement, as well as (ii) the Greek ministry for
Migration and Asylum - in terms of deciding on all ofthe further modalities in the ongoing process of
developing new reception facilities in Greece. Therefore, access must be refused as per Article 4(3)b
of Regulation (EC) No 1049/2001.

Ad c): EASO’s assessment in relation to the protection of personal data

The Agency further has to take into consideration the applicable personal data protection legislation
and case law. Pursuant to Article 3(1) of Regulation 2018/1725”, ‘personal data’ means: “any
information relating to an identified or identifiable natural person (‘data subject’); an identifiable
natural person is one who can be identified, directly or indirectiy, in particular by reference to an
identifier such as a name, an identification number, location data, an online identifier or to one or more
factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of
that natural person”. Article 4(1)(b) of Regulation (EC) No 1049/2001 stipulates that the institutions
shall refuse access to a document where its disclosure would undermine the protection of privacy and
integrity of individuals, in particular in accordance with Community legislation regarding the
protection of personal data. Article 4(6) of Regulation (EC) No 1049/2001 stipulates that if only parts of
the requested documents are covered by any of the exceptions, the remaining parts of the documents
should be released.

The documents under Categories 1, 2, 3, 4, 6, 7 and 8 contain personal data from the side of EASO,
the European Commission, the relevant Greek authorities, as well as other stakeholders. In EASO’s
assessment, the disclosure thereof would seriousiy undermine the protection ofthe personal data of
the natural persons whose names and/or other personal data are mentioned therein, in breach of
the provisions of Regulation (EU) 2018/1725. Therefore, access must be refused as per Article 4{1)(b)
of Regulation (EC) No 1049/2001.

Ad d) EASO’s assessment in relation to the protection of public security

In accordance with Article 4(1)(a) first indent, access to a document must be refused if its disclosure
would undermine the protection of public security. The documents under Categories 1,2 and 4contain
detailed information and descriptions of the site plans and blueprints of different locations including
details on security parameters of (planned) reception facilities in Greece. These documents also relate
to plans for allocation of different groups of migrants and equipment/assets inside of planned
reception facilities, thus also providing insights into the modus operandi of the operational activities
of the responsible authorities present. In EASO’s assessment, the disclosure of such information
would: (i) seriously impair the effectiveness of the operations of the responsible authorities and (ii)

3 httos://ec.europo.eu/home-affairs/sites/default/files/pdf/03122020 memorandum_of understanding_en.pdf

% Regulation (EU) 2018/1725 ofthe European Parliament and ofthe Council of 23 October 2018 on the protection ofnatural
persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the
free movement ofsuch data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, (OJ L 295,
21.11.2018, p. 39).

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
www.easo.europa.eu info@easo,europa.eu Valletta, MRS 1917, MALTA

entails a clear and definite danger to the health and safety of migrants and any other persons present
within those reception facilities. Therefore, access must be refused as per Article 4(1)(a) first indent of
Regulation (EC) No 1049/2001.

IV. PARTIAL ACCESS

Based on the principle of proportionality’, the Agency examined whether partial access could be
granted to allofthe documents covered by Categories 1) to 8). However, the relevant case law provides
that there is no obligation to grant partial access in case the remaining parts of the documents would
be meaningless and/or the administrative burden of blanking out the parts covered by exceptions
would be excessive®.

In order to provide partial access in this instance, the Agency would need to individually process (i.e.
examine and insert manual redactions in) dozens of documents totalling a huge amount of combined
pages. Moreover, the complex and technical nature ofthose documents makes it a particularly difficult
exercise to comprehensively assess which precise parts of each individual document should be covered
by which precise exception(s). Such an exercise would clearly entail a vastly disproportional
administrative burden for EASO. As such, the Agency does not consider it reasonably required to grant
partial access in this case, in line with the relevant case law.

The Agency has however - under Category 6 - identified five documents which were relatively
straightforward to redact, while still providing useful insights and information regarding the subject at
hand. These documents concern the minutes of the Migration Management Steering Committee
Meetings, originating from the European Commission. Pursuant to Article 4(4) of Regulation (EC) No
1049/2001, as regards third-party documents, the Agency shall consult the third party concerned with
a view to assessing whether an exception in paragraph 1 or 2 of the above-mentioned Article is
applicable, unless it is clear that the document shall or shall not be disclosed. In accordance with the
above-mentioned Article, the Agency consulted the European Commission on the disclosure of these
five documents, as well as the relevant Greek authorities.

Pursuant to the Agency’s own assessment under Regulation (EC) No 1049/2001, please be informed
that EASO has decided to disclose the afore-mentioned minutes of the Migration Management
Steering Committee Meetings (entailing five separate documents). However, certain parts thereof still
had to be redacted in light of the exceptions provided under Article 4(1){(b) of Regulation (EC) No
1049/2001. Otherwise, this would have undermined the protection of the privacy and integrity ofthe
individual in particular in accordance with Community legislation regarding the protection of personal
data. As such, redactions have been made in light of the protection of personal data, in accordance with
Article 4(1){b) of Regulation (EC) No 1049/2001. Furthermore, certain parts of these minutes had to be
redacted in light of the exception provided under Article 4(1)(a), first indent. The redacted parts of the
minutes relate to detailed information and descriptions of the equipments/assets inside of reception
facilities, thus also providing insights into the modus operandi of the operational activities of the
responsible authorities present. The redacted parts also relate to specific information on the asylum
procedures. In EASO’s assessment, the disclosure of such information would: (i) seriousiy impair the
effectiveness of the operations ofthe responsible authorities and (ii) entails a clear and definite danger

5 Case T-14/98, Hautala v Council.
6 Judgment ofthe Court of first Instance of 7 February 2002 in case T-211/00, Kuijer v Council, & Judgment ofthe General

Court of 20 March 2014 in case T-181/10, Reagens v Commission.

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
www.easo.europa.eu info@easo.europa.eu Valletta, MRS 1917, MALTA

to the health and safety of migrants and any other persons present within those reception facilities.
As such, certain redactions have been made as per Article A(1)(a) first indent of Regulation (EC) No
1049/2001.

| am pleased to inform you that you may find these five documents attached to this present letter.

Moreover, as regards the documents under Category 5, kindly note that the EASO Guidance on
Reception Conditions and Reception Conditions Directive are already publicly available.

Overriding public interest

With regard to the protection of: (i) commercial interests and (ii) the decision-making process, the
Agency further examined whether an overriding public interest exists in the disclosure of all of the
identified documents. In this sense, it has concluded there is no such an overriding public interest.
Namely, the disclosure of the documents carrying a significant commercial value and/or relating to
procedures where all follow-up decisions are yet to have been taken - and where their disclosure would
undermine the protection of public security - clearly does not constitute an overriding public interest.
In this sense, it should also be taken into consideration that EASO already provides a proper level of
transparency by agreeing to disclose the minutes of the afore-mentioned Steering Committee.

In light ofthe above considerations, access to the documents identified under Categories 1, 2,3, 4,7
and 8 of your request must be refused on the basis of Article 4(1)(a), first indent; Article 4(1)(b); Article
4(2), first indent and Article 4(3), first paragraph of Regulation (EC) No 1049/2001.

V. Conclusion

The Agency is committed to upholding the principles of transparency and good administration.
Please be assured that my services have tried their utmost in terms of accomodating your present
(very) open-ended application for a wide variety of categories of documents, which entailed
significant and substantial administrative efforts.

As such, I trust the enclosed documents will prove useful and thank you for your interest in EASO.
As regards the non-disclosure of other documents, please note that the Agency is not in a position
to disclose (operational) information which, if made public, would jeopardise the protection of
public security, commercial interests, personal data, as well as the decision-making process.

Pursuant to Article 7(2) of Regulation (EC) No 1049/2001, within 15 working days of the receipt of this
letter, you may submit a confirmatory application to EASO asking it to reconsider its position. Pursuant
to Article 8 of Regulation (EC) No 1049/2001, EASO will reply to you within 15 working days from
registration of such an application.

Please note however that you are only entitled to submit a single confirmatory application to the
present combined response letter, with regard to (joint) request No. 01215/01216. The Agency will

not process two confirmatory applications submitted in a separable manner.

You can submit a confirmatory application via the following methods:

European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
www.easo.europa.eu info@easo.europa.eu Valletta, MRS 1917, MALTA

By post:

The Executive Director

European Asylum Support Office (EASO)
MTC Block A

Winemakers Wharf

Grand Harbour Valletta, MRS 1917
Malta

By electronic mail: exo.mailbox@easo.europa.eu

Yours sincerely,

Nina Gregori
Executive Diredtof
Enclosures:

e 1st Migration Management Steering Committee Meeting Minutes (15 October 2020), redacted

e 2nd Migration Management Steering Committee Meeting Minutes (12November 2020),
redacted

°e 3rd Migration Management Steering Committee Meeting Minutes (17 December 2020),
redacted

e 4th Migration Management Steering Committee Meeting Minutes (20 January 2021), redacted

e 5th Migration Management Steering Committee Meeting Minutes (25 February 2021),

redacted
European Asylum Support Office Tel: +356 2248 7500 MTC Block A, Winemakers Wharf
www.easo.europa,eu info@easo.europa.eu Valletta, MRS 1917, MALTA