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Dear European Border and Coast Guard Agency, Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, we are requesting the following documents: Regarding the pushbacks in the Aegean involving Frontex, as reported by the Bellingcat and other media outlet articles: For the incident of 28.04.2020, involving asset FSA OSPREY 1: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 04.06.2020, involving asset PRT CPB Nortada: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 05.06.2020, involving asset PRT CPB Nortada: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 08.06.2020, involving asset PRT CPB Nortada: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 08.06.2020, involving asset PRT ROU CPV MAI 1103: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 15.08.2020, involving asset ROU CPV MAI 1102: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. For the incident of 19.08.2020, involving asset PRT CPB Molivos: - the Technical Equipment Mission Report; - the ICC Daily report and/or JCB Minutes; and - the Daily reporting package. Please don’t hesitate to contact us if you have any doubts or question in regards to this request. Please also note that, in line with the European Ombudsman's decision in case 104/2020/EWM, we hereby express our wish to receive all responses and documents related to this request via this e-mail address only and not through the Frontex portal. We will not accept a notification to this e-mail address, but only the actual responses. Thank you in advance. Yours faithfully, << Adresse entfernt >> Arne Semsrott << Adresse entfernt >> Anfragenr: 203779 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203779/ Postanschrift << Adresse entfernt >> Luisa Izuzquiza

Dear Frontex, It's been 10 days since we filed our request for access to reports on Frontex assets involved in reported pushbacks and it has not yet been registered or even acknowledged. We'd like to recall that, according to Article 7 (1) of Regulation 1049/2001, access to documents applications should be handled "promptly". Could you please register and start processing our request without further delay, in compliance with the Regulation? Sincerely, << Adresse entfernt >> Arne Semsrott Anfragenr: 203779 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203779/ Postanschrift << Adresse entfernt >> Luisa Izuzquiza

RE: Confirmatory application in relation to access to documents request PAD-2020-00223 Dear European Border and Coast Guard Agency, We are filing this confirmatory application in relation to our access to documents request ‘Reports on Frontex assets involved in reported pushbacks’ (reference PAD-2020-00223). Our initial request, as well as all subsequent correspondence, can be found here: https://fragdenstaat.de/anfrage/repor... The Request: On 16 November 2020, we filed an access to documents request for a series of Frontex reports “[r]egarding the pushbacks in the Aegean involving Frontex, as reported by the Bellingcat and other media outlet articles”. Our request identified a series of documents including the Technical Equipment Mission Report, the ICC Daily report and/or JCB Minutes, and the Daily Reporting Package corresponding to seven incidents for which the date and the name of the relevant Frontex asset were provided. All of the requests were formulated in a sufficiently precise manner, and there is no suggestion to the contrary. On 26 November 2020 Frontex registered and started processing our application. On 17 December 2020 Frontex requested a deadline extension under “Article 7(3)/Article 8(2)” of Regulation 1049/2001. Frontex’s Response: On 21 January 2021, Frontex provided its response, refusing access to the 30 documents identified after our request. In its response letter, Frontex states that “access to the 30 documents identified must be refused” on the basis that they: “refer to details of the operational area and thus cannot be released …” and “contain detailed information related to reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities.” The response letter concludes that: “In sum, [the requested documents] relate to ongoing operations. (…) the disclosure of the documents in question would undermine the protection of the public interest as regards public security.” Access was accordingly refused on the purported basis of Article 4 (1)(a) of Regulation 1049/2001. Frontex also states that: “A partial release of the document(s) could not be undertaken, as their redaction would be disproportional in relation to the parts that are eligible for disclosure, simultaneously undermining the principle of sound administration. More specifically, the administrative burden necessary to identify and redact the releasable materials would be disproportionate to the public interest in the disclosure exercise itself”. Grounds of Objection: We consider that Frontex’s refusal to provide access to the documents requested is misconceived, for the following reasons. Ground 1. Details of Frontex’s "operational area” in the Aegean are already in the public domain Frontex’s refusal relies on the assertion that the documents requested “refer to details of the operational area". Notwithstanding that Frontex fails to identify the nature of the relevant “details” to which it refers, detailed information relating to Frontex’s operational area is in fact already in the public domain. By way of example, a publicly available note dated 05/11/2020 from the Frontex Management Board meeting on 10 November 2020 (Reference: BMD/GRP-2018-00017/899751/2020) contains explanations and graphics with specific information relating to the Frontex “operational theatre”. It follows that mere disclosure of the requested documents would not “undermine the protection of the public interest as regards public security” as alleged. Ground 2. Frontex’s reliance upon “public security” is insufficiently particularised and inconsistent with case law of the CJEU In its response letter, Frontex alleges that the documents requested “contain detailed information related to reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities. Its disclosure would jeopardize the implementation of ongoing and future operations, and thus facilitate irregular migration and trafficking in human beings as the effectiveness of law enforcement measures would be significantly reduced.” Frontex’s reliance upon the alleged risk posed to public security as a result of disclosure of documents relating to “reporting tools” is ill-founded. First, Frontex uses the term “reporting tools” vaguely without specifying the nature of the “reporting tools” to which it refers. Second and in any event, Frontex fails to adequately explain how disclosure of these “reporting tools” would in fact jeopardize future operations (and, by extension, public security). It merely makes an assertion to that effect. Third, Frontex is required, in accordance with the established case law of the CJEU, to explain how the purported risk to public security is “forseeable and not purely hypothetical”. It has failed even to particularise the nature of the purported risk, much less to establish that it reaches the threshold of “foreseeable and not purely hypothetical”. Ground 3. The scope of of the requested documents extends beyond matters relating to Frontex’s “operational area” or “reporting tools”. Blanket refusal on those grounds is accordingly unjustified. The requested documents comprise Frontex’s so-called Daily Reporting Package. According to Frontex [1], these documents constitute "[t]he available information to Frontex from the patrolling activities conducted within Joint Operations”. In particular, the Daily Reporting Package consists of: the ICC Daily report and/or JCB Minutes, which provide an “Operational overview on a daily basis, covering the last 24 hours”; the Technical Equipment Mission Report, which contains “Information about the activity performed by the aerial, maritime assets and TVV”; the Standard Patrolling Schedule; and the IO Daily Report. These documents will inevitably contain a diverse range of information of varying degrees of sensitivity. By denying access to all 30 identified documents, Frontex is exercising a blanket refusal which is contrary to EU case law and the principle of EU transparency. Whether the requested documents are suitable for disclosure must be examined on a case-by-case basis. The case law of the CJEU has established that: (1) there is no general presumption of non-disclosure regarding documents; and (2) the mere fact that a document is related to a sensitive area of EU work does not make the documents sensitive per se. It follows that blanket refusal of an entire category of documents is unlawful and contravenes the principle of “widest possible access” as enshrined in Regulation 1049/2001. It must also be noted that the requested documents were used as part of the agency’s Management Board internal assessment of the cases reported by media outlets Bellingcat, Der Spiegel and Lighthouse Reports. As we can see from the disclosed Note from the Management Board, the requested documents are cited as the relevant documentation used to conduct this assessment. It is therefore presumable, unless Frontex would state otherwise, that the requested documents contain relatively detailed descriptions of pushback incidents which – directly and indirectly – involve Frontex assets. These documents, besides technical details regarding “reporting tools” and the “operational area”, contain important accounts of potential human rights violations at sea involving the agency’s deployed assets. Their disclosure is therefore crucial for the protection of human rights at the EU’s external borders, as well as for the principle of accountability, as enshrined in the EU treaties. Ground 4. Frontex is under a legal obligation to make public comprehensive information regarding its ongoing operations Article 114 (2) of Regulation 2019/1896 provides: “The Agency [Frontex] shall communicate on matters falling within the scope of its tasks on its own initiative. It shall make public (…) comprehensive information on past and current joint operations (…). It shall do so without revealing operational information which, if made public, would jeopardise attainment of the objectives of operations.” It follows that Frontex is not entitled to refuse access to information simply because “In sum, they relate to ongoing operations”. The terms of Article 114(2) indicate that the mere fact that requested documents may relate to “ongoing operations” does not relieve the agency from its transparency obligations. Rather, Frontex is required to make public the relevant information without revealing sensitive details “which would jeopardise attainment of the objectives of operations”, i.e. provided that it can justify the refusal of relevant information on the basis of the exceptions provided in Article 4 of Regulation 1049/2001 and in compliance with EU case law. Ground 5. Frontex’s failed to provide partial disclosure is unlawful Article 4 (6) of Regulation 1049/2001 provides: “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.” As highlighted above, the proposition that the totality or even a substantial part of the 30 documents requested relates to Frontex’s “operational area” or “reporting tools” is not sustainable. Partial disclosure must therefore be considered, consistently with the provisions of Article 4(6) of Regulation 1049/2001 and the principle of widest possible access. Frontex alleges that partial access cannot be granted to the requested documents “as their redaction would be disproportional in relation to the parts that are eligible for disclosure, simultaneously undermining the principle of sound administration.”. This is inconsistent with the terms of Article 4(6), which provides that the scope of disclosure is determined with reference to the exceptions laid out in Article 4, rather than a test of proportionality. Ground 6. There is an clear public interest in the disclosure of the requested documents Frontex alleges that “the administrative burden necessary to identify and redact the releasable materials would be disproportionate to the public interest in the disclosure exercise itself.” That assertion is false. The documents requested are likely to contain accounts of conduct that could amount to grave human rights violations. Fundamental rights constitute an essential pillar of the European legal order: there is a manifest public interest in transparency relating to possible violations. On 23 October 2020, media outlets including Bellingcat published information relating to pushbacks in the Greek-Turkish maritime border involving Frontex assets. Frontex’s involvement in these and other alleged pushbacks has since become a matter of general public importance and the subject of political debate. The alleged failure of the agency’s internal reporting system, which has raised questions over Frontex’s compliance with its obligation to report wrongdoing and follow-up on these reports with relevant authorities, has become a matter of public concern. For these reasons, we consider that Frontex is legally obligated to provide the requested documents. Please don’t hesitate to contact us if you have any doubts or question in regards to this confirmatory application. Sincerely, << Adresse entfernt >> << Adresse entfernt >> Notes: [1] As described in Frontex’s Operational Plan (Main part) JO Poseidon 2017-2018 (latest operational plan available); as well as in the Note from the Frontex Management Board meeting from 10 November 2020. Anfragenr: 203779 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203779/ Postanschrift << Adresse entfernt >> Luisa Izuzquiza << Adresse entfernt >>

Dear Frontex, Please find attached the information requested by Frontex "in regard to ground 1" of our confirmatory application. Sincerely, << Adresse entfernt >> << Adresse entfernt >> Anhänge: - note-frontex-management-board-meeting-10-november.pdf Anfragenr: 203779 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203779/ Postanschrift << Adresse entfernt >> Luisa Izuzquiza << Adresse entfernt >>