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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 und 1367/2006”(reference PAD 2021-00120). My initial request, as well as all subsequent correspondence, can be found here: https://fragdenstaat.de/anfrage/reque... The request: On 08. April 2021, I requested a series of documents regarding Frontex’s aerial operation on July 12th 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) pictures and videos 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 July 12th 2020. All of the requests were formulated in a sufficiently precise manner, and there is no suggestion to the contrary. On 21. April 2021, Frontex registered the application. On 17. May 2021, Frontex extended the deadline of 15 working days. Frontex’s Response: On 04. June 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) six documents 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. As a result, the course of ongoing and future similar operations would be hampered, ultimately defeating their purpose to counter and prevent cross-border crime and unauthorized border crossings". - 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’s reliance upon «public security» is insufficiently particularised and inconsistent with case law of the CJEU. In its response letter of 04. June 2021, Frontex argues that disclosing information regarding the technical equipment deployed in the area 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 number and profiles 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, the “reporting tools and methods” Frontex refers to are unclear and still not defined. Secondly and in any event, in its answer, Frontex does not prove how the disclosure of the requested information “regarding the technical deployment”, “regarding the numbers and profiles of officers deployed” and “related to reporting tools and methods” would concretely jeopardize future operations. Frontex actually mentions this possibility, but without providing concrete arguments. Third, according to the CJEU, Frontex is required to explain how the alleged risk to public security is “forseeable and not purely hypothetical”. Frontex never proved these requirements to be fulfilled in the three paragraphs mentioned above. Ground 2. Frontex’s refusal amounts a blanket refusal - that is illegal. Frontex identified six documents linked to the request of the Technical Equipment Mission Report, the ICC Daily Report, the JCB Minutes, the Daily Reporting Package. Also, Frontex identified video footage, as requested. It is acknowledged that documents have different degree of security sensitivity. However, Frontex denied access to any of the documents and thus, exercised a “blanket refusal” that is, according to the CJEU, unlawful. CJEU’s case law states that disclosure of information must be examined on a case-by-case basis considering 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. A blanket refusal of an entire category of documents is unlawful and contravenes the principle of “widest possible access" that is enshrined in Regulation 1049/2001. On 04. June 2021, Frontex did a blanket refusal in its reply - denying access to six 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 entire documents should be denied. Ground 3. 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.” Indeed, some operational information - if proved that this should be the case - cannot be published. However, this doesn’t entitle Frontex to refuse any access to operational information linked to ongoing operations. In fact, on the contrary, Frontex is bound to communicate about them and only under some proved exceptions and in a limited scope, renounce to reveal operational information. Hence, Frontex's refusal to grant access to documents is illegal. Ground 4. 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, as anchored in the Article 4 (6) of the Regulation 1049/2001, Frontex should have considered a partial access to information. However, Frontex alleged that partial access has to be refused “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) of Regulation 1049/2001, the “proportionality” “in relation to the parts that are eligible for disclosure” is an irrelevant fact to consider the partial release of documents. Therefore, Frontex wrongly applied the law - and wrongfully denied a partial release of the documents. Ground 5. Frontex omitted the existence of a public interest in the disclosure of the requested documents. 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 called several times for the Frontex Executive Director to resign over allegations of fundamental rights violations. The Frontex Scrutiny committee in the European Parliament currently examine these. It cannot be alleged that the disclosure of the documents is not of public interest: there is a manifest public interest to inform about any complicity of an European agency in the commission of human rights violations and hence, to publish the requested documents and hence. Frontex’s activity in the Central Mediterranean Sea has recently been widely in the spotlight (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 12.07.20, there are high assumptions that Frontex coordinated a pullback to Libya. Therefore, any documents linked to the aerial operation carried out by Frontex on 12.07.20 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: 217750 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217750/

Dear European Border and Coast Guard Agency, I filled the confirmatory application on 23.06. I haven't received any reply so far - I was even not informed of a deadline extension. I would kindly remind you to answer my confirmatory application as soon as possible, given the illegal delay that has already occured. Kind Regards Antragsteller/in Antragsteller/in Anfragenr: 217750 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217750/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Mr/Ms Antragsteller/in Antragsteller/in, Please be informed that no correspondence dated 23 June 2021 has reached us from your email address. You can apply for access to Frontex documents at any time. Yours sincerely, Frontex Transparency Office European Border and Coast Guard Agency - Frontex

Dear European Coast Guard Agency, This is impossible. I successfully filled a confirmatory application per email on the 23th of June 2021 as proved by the following code: "Jun 23 18:02:21 mail postfix/smtpd[823042]: 9DE64A40346: client=localhost.localdomain[127.0.0.1], sasl_method=PLAIN, sasl_username=<<E-Mail-Adresse>> Jun 23 18:02:21 mail postfix/cleanup[823053]: 9DE64A40346: message-id=<<Name und E-Mail-Adresse>> Jun 23 18:02:21 mail opendkim[657]: 9DE64A40346: DKIM-Signature field added (s=mail, d=fragdenstaat.de) Jun 23 18:02:21 mail postfix/qmgr[64964]: 9DE64A40346: from=<<Name und E-Mail-Adresse>>, size=12656, nrcpt=1 (queue active) Jun 23 18:02:23 mail postfix/smtp[829711]: 9DE64A40346: to=<<Name und E-Mail-Adresse>>, relay=frontex-europa-eu.mail.protection.outlook.com[104.47.4.36]:25, delay=1.4, delays=0.06/0/0.55/0.75, dsn=2.6.0, status=sent (250 2.6.0 <<Name und E-Mail-Adresse>> [InternalId=7975754269650, Hostname=PAXPR05MB8667.eurprd05.prod.outlook.com] 22472 bytes in 0.079, 274.620 KB/sec Queued mail for delivery) Jun 23 18:02:23 mail postfix/qmgr[64964]: 9DE64A40346: removed " or on this link: https://fragdenstaat.de/anfrage/request-according-to-eu-regulation-10492001-und-13672006/#nachricht-608112 This is compelling evidence that Frontex successfully received my confirmatory application on 23 June 2021. I kindly urge you to answer my request immediately. Kind regards, Antragsteller/in Antragsteller/in Anfragenr: 217750 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217750/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>

Dear Sir or Madam, We would like to keep the communication in written form. Can you let us know what your request is in this way? Yours sincerely Antragsteller/in Antragsteller/in Anfragenr: 217750 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/217750/ Postanschrift Antragsteller/in Antragsteller/in << Adresse entfernt >>