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Dear European Border and Coast Guard Agency, I am filing this confirmatory application in relation to my access to document request “request according to EU regulation 1049/2001 and 1367/2006”(reference PAD 2021-00118). My initial request, as well as all subsequent correspondence, can be found here : https://fragdenstaat.de/anfrage/reque... The request: On 07. April 2021, I requested a series of documents regarding Frontex’s aerial operation on 17th June 2020 in the Central Mediterranean. The documents included the(1)  Serious Incident Reports, (2) Technical Equipment Mission Report, (3) ICC Daily report, (4) JCB Minutes, (5) Daily reporting package, (6) Communication of the Fundamental Rights Officer and the Executive Director within Frontex and with the Libyan, Italian and Maltese authorities in relation to your air operation in the Central Mediterranean Sea (7) footage related to the aerial operation in the Central Mediterranean Sea and (8) list of all available documents related to your air operation in the Central Mediterranean Sea on June 17th 2020. All of the requests were formulated in a sufficiently precise manner, and there is no suggestion to the contrary. On 16. April 2021, Frontex registered the application. Frontex’s Response: On 10. Mai 2021, Frontex denied access to the documents and footage identified after my request. In its response letter, Frontex states that it does not hold any documents regarding (1), (6) and (8). While regarding (2) to (5) twelve mission reports referring to the requested date and location, and in regard to (7), video footage was identified. Frontex states that “access to these documents has to be refused” on the basis that: • “the disclosure would undermine the protection of privacy and the integrity of the individual“ - in the sense of Article 4(1)(b) of Regulation (EC) No 1049/20011. • “disclosing such information (...) would enable third parties, e.g. by combining this information with other sources, to draw conclusions regarding usual positions and movement patterns. (..) This would ultimately obstruct the purpose of such operations: to counter and prevent cross-border crime and unauthorized border crossings” - in the sense of Article 4(1)(a) first indent of Regulation (EC) No 1049/2001. • “Disclosing such information would be tantamount to disclosing the weaknesses and strengths of operations and pose a risk to their security” - in the sense of Article 4(1)(a) first indent of Regulation (EC) 1049/2001. • “Its disclosure would jeopardize the implementation of ongoing and future operations, and thus facilitate irregular migration, trafficking in human beings and terrorism as the effectiveness of law enforcement measures would be significantly reduced.” - in the sense of Article 4(1)(a) first indent of Regulation (EC) 1049/2001. A partial release of the documents was also denied, as “the administrative burden necessary to identify and redact the releasable elements would be disproportionate to the interest in the disclosure exercise itself”. Grounds of Objection : I consider that Frontex’s refusal to provide access to the documents required is unlawful for the following reasons : Ground 1. Frontex cannot claim that personal data have to be protected Frontex alleged that personal data cannot be released under 4(1)(b) of Regulation (EC) No 1049/2001, as it would “undermine the protection of privacy and the integrity of the individual”. However, any personal data of Frontex officials who is linked to the aerial operation carried out on 17.06.20 is of public interest - as this operation is believed to be linked to serious human rights violations. Ground 2. Frontex’s reliance upon «public security» is insufficiently particularised and inconsistent with case law of the CJEU. In its response letter, Frontex argues that disclosing information regarding the technical equipment would “open way for abuse, as numbers, types and specifications of equipment used are indicative of similar equipment used for succeeding years. Releasing such information would thus benefit criminal networks, enabling them to change their modus operandi and, consequently, result in hampering the course of ongoing and future operations of a similar nature.” Furthermore, the disclosure of “information regarding the numbers of officers deployed in the operational area [would] be tantamount to disclosing the weaknesses and strengths of operations and pose a risk to their security.” Finally, disclosing information “related to reporting tools and methods used by law enforcement officials used to conduct border control tasks and counter criminal activities [..] would jeopardize the implementation of ongoing and future operations, and thus facilitate irregular migration, trafficking in human beings and terrorism as the effectiveness of law enforcement measures would be significantly reduced.” There is no alleged threat to public security resulting from the disclosure of the documents. First, it is unclear what “reporting tools and methods” Frontex refers to. Secondly and in any event, Frontex does not prove how the disclosure of the information “regarding the technical deployment”, “regarding the numbers of officers deployed” and “related to reporting tools and methods” would concretely jeopardize future operations. In fact, Frontex only mentions this possibility without providing concrete arguments. Third, according precedent cases of the CJEU, Frontex is required to explain how the alleged risk to public security is “forseeable and not purely hypothetical”. In none of the three requests Frontex proved these requirements to be fulfilled. Ground 3. Frontex’s refusal amounts a blanket refusal - that is illegal. Frontex identified 12 documents and video footage linked to the request of the Technical Equipment Mission Report, the ICC Daily Report, the JCB Minutes, the Daily Reporting Package and the footage. If it is given that these documents have different degree of security sensitivity, Frontex however knowingly denied access to any of the documents. Hence, Frontex exercised a “blanket refusal” that is, according to the CJEU case law, unlawful. The CJEU precisely states that disclosure of information must be examined on a case-by-case basis. Some general considerations must be indeed taken into account: (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. A blanket refusal of an entire category of documents is unlawful and contravenes the principle of “widest possible access” as enshrined in Regulation 1049/2001. Notwithstanding, Frontex did a blanket refusal in denying access to 12 documents and video footage without analysing on a case-by-case basis whether these documents would actually be sensitive enough that the access to the whole documents should be denied. Ground 4. Frontex is bound by EU law to publish 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.” The fact that some operational information cannot be published (provided Frontex proves so) doesn’t per se entitle Frontex to refuse any access to operational information linked to ongoing operations. Instead, Frontex is bound to communicate about them and only under some proved exceptions and in a limited scope, renounce to reveal operational information. Ground 5. Frontex’s failure 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.” In the line of the principle of widest possible access, Frontex should have considered a partial access to information. Nevertheless, Frontex alleged that partial access cannot be allowed “as their redaction would be disproportional in relation to the parts that are eligible for disclosure, simultaneously undermining the principle of sound administration.” Following the article 4(6), the “proportionality” “in relation to the parts that are eligible for disclosure” is irrelevant when considering the partial release of documents. Again, Frontex misapplied the law and wrongfully denied a partial release of the documents. Ground 6. Frontex omitted the existence of a public interest in the disclosure of the requested documents. In order to deny the release of the requested documents, Frontex argued that “the administrative burden necessary to identify and redact the releasable elements would be disproportionate to the interest in the disclosure exercise itself”. This statement is false. The documents requested are likely to contain information on Frontex’s involvement in pullbacks by the so-called Libyan Coast Guard to Libya and hence, human rights violations. European politicians have regularly called for the Frontex Executive Director to resign over allegations of fundamental rights violations. There is a Frontex Scrutiny committee in the European Parliament to examine the allegations. It is hence undeniable that there is a manifest public interest to publish the requested documents and inform about any complicity of an European agency in the commission of human rights violations. Frontex’s activity in the Central Mediterranean has recently been widely in the spotlight through extensive research and media coverage (https://www.youtube.com/watch?v=gigz1... https://www.spiegel.de/international/...). NGOs constantly report about Frontex’s cooperation with the so-called Libyan Coast Guard. On 17.06.20, there are high assumptions that Frontex coordinated a pullback to Libya (https://sea-watch.org/wp-content/uplo...). Any reports linked to the aerial operation carried out on 17.06.20 is matter of public concern. For these reasons, I consider that Frontex is legally obliged to provide me with the requested documents. Please do not hesitate to contact me in regards to this confirmatory application. Kind regards, Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Sehr << Anrede >> meine Informationsfreiheitsanfrage „request according to EU regulation 1049/2001 and 1367/2006“ vom 07.04.2021 (#217675) wurde von Ihnen nicht in der gesetzlich vorgeschriebenen Zeit beantwortet. Sie haben die Frist mittlerweile um 113 Tage überschritten. Bitte informieren Sie mich umgehend über den Stand meiner Anfrage. Mit freundlichen Grüßen Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Sir or Madam, Please note that I have already filed a confirmatory application on 31.05.2021 against your reply of 10.05.2021 (denied access to documents). Herewith I ask you again to respond to my confirmatory application with the subject AW: PAD-2021-00118: Reports, minutes, communications, pictures, videos and list of documents concerning air mission on central Mediterranean on 17 Jun 2020 [#217675] dated 31.05.2021 at 23:16. Regards Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Sir or Madam, I hereby kindly ask you again to respond to my confirmatory application with the subject "AW: PAD-2021-00118: Reports, minutes, communications, pictures, videos and list of documents concerning air mission on central Mediterranean on 17 Jun 2020 [#217675]" dated 31.05.2021 at 23:16. Regards Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Sir or Madam, I hereby kindly ask you again to respond to my confirmatory application with the subject "AW: PAD-2021-00118: Reports, minutes, communications, pictures, videos and list of documents concerning air mission on central Mediterranean on 17 Jun 2020 [#217675]" dated 31.05.2021 at 23:16. I have repeatedly pointed out on the following dates that I have not received a response. In each case, the requests were successfully delivered. - 19.08.2021 - 25.08.2021 - 13.10.2021 Thus, I am asking you again to respond to my confirmatory application submitted on 31.05. 2021. Regards Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Mr/Ms Antragsteller/in Antragsteller/in, Further to your email of 17 January 2022, please be informed that Frontex had replied to all of your last pieces of communication. We have just sent you again the access information to our reply of 10 May 2021. Kindly be informed that this communication does not reinstate the timelines of Regulation (EC) No 1049/2001. Yours sincerely, Frontex Transparency Office European Border and Coast Guard Agency - Frontex

Dear Sir or Madam, thank you for your reply. However, I am not asking for a response to my initial request for access to documents made on 07/04/2021, but for a response to my confirmatory application submitted on 31/05/2021, following the denial of my original request. In past communication you have always referred to your letter from 10/05/2021. However, I have not yet received a response to my confirmatory application dated 05/31/2021. I hereby kindly ask you to please do so. Regards Antragsteller/in Antragsteller/in Anfragenr: 217675 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217675/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Mr/Ms Antragsteller/in Antragsteller/in, No confirmatory application in regard to the decision of application PAD-2021-00118 was registered. Yours sincerely, Transparency Office