- The handbook 2020 of operation Themis - The operational plan 2020 of operation Themis I note your arguments in your confirmatory application 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- 00122). My initial request, as well as all subsequent correspondence, can be found here: https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Ffragdenstaat.de%2F anfrage%2Frequest-according-to-eu-regulation-10492001-3%2F%23nachricht- 585771&data=04%7C01%7Cfrontex%40frontex.europa.eu%7C10baec0fa652446046a208d 9299fab0e%7C1a17d6bf51554e22bf292ba5da77f037%7C0%7C0%7C63758658924220218 5%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1ha WwiLCJXVCI6Mn0%3D%7C3000&sdata=jQlRStA6EcNq4WeHDzU0ZXHHsk6LMau159hGF4x 3XuQ%3D&reserved=0 The request: On 09. April 2021, I filed an access to the following documents: (1) the handbook 2020 of Operation Themis (2) the operational plan 2020 of Operation Themis Frontex - European Border and Coast Guard Agency www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01

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. Frontex’s Response: On 17. Mai 2021, Frontex denied access to the documents identified after my request. In its response letter Frontex states that “access to these documents must be refused” on the basis that: – "granting access to the Operational Plan and all annexes at this stage would hamper its evaluation and ultimately jeopardize the European Union’s and Member State’s endeavours to counter and prevent cross-border crime and unauthorized border crossings" – "releasing these documents at this stage would undermine the protection of the public interest as regards public security as laid down in Article 4(1)(a) first indent of Regulation (EC) No 1049/2001" A partial release of the documents was also denied, 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 elements would be disproportionate to the public 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, Frontex argues that “granting access to the Operational Plan and all annexes at this stage would hamper its evaluation and ultimately jeopardize the European Union’s and Member State’s endeavours to counter and prevent cross-border crime and unauthorized border crossings.“ Furthermore, disclosing information “would benefit criminal networks, enabling them to change their modus operandi and consequently result in hampering the course of ongoing and future similar operations, which would ultimately put the life of migrants in danger“. There is no alleged threat to public security resulting from the disclosure of the documents. First, Frontex does not concretely prove how the disclosure of the information contained in the Operational Plan and likely the Handbook, the latter being not even mentioned in Frontex’s reply, would concretely jeopardize future operations. Simply stating that “the evaluation of the previous operation is ongoing” is not enough to refuse the disclosure of documents. Frontex failed to provide any concrete arguments and prove that the public security would be threatened. Second, according precedent cases of the CJEU, Frontex is required to explain how the alleged risk to public security is “foreseeable and not purely hypothetical”. Frontex failed to fulfil this requirement despite being bound by law to do so. Ground 2. Frontex’s refusal amounts a blanket refusal - that is illegal. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01

Frontex knowingly denied access to any of the requested 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 2 documents 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. Furthermore, Frontex did not even mention the 2020 Handbook of the Operation Themis in its reply, despite this document being requested. Frontex failed to analyse whether this document could be disclosed and hence, violated the law. Ground 3. Frontex is bound by EU law to publish comprehensive information regarding its operations, even those that have been concluded. 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 that the information needs to remain confidential) doesn’t per se entitle Frontex to refuse any access to operational information linked to ongoing or concluded 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 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, 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. More specifically, the administrative burden necessary to identify and redact the releasable elements would be disproportionate to the public interest in the disclosure exercise itself”. 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 5. Frontex omitted the existence of a public interest in the disclosure of the requested documents. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01

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 requested documents are likely to contain relevant information on Frontex’s Operation Themis and its functioning, which is needed for the public considering the recent allegations of Frontex’s complicity in 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://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.youtube.com %2Fwatch%3Fv%3Dgigz1Taa9q4&data=04%7C01%7Cfrontex%40frontex.europa.eu%7C10 baec0fa652446046a208d9299fab0e%7C1a17d6bf51554e22bf292ba5da77f037%7C0%7C0 %7C637586589242212186%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQ IjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=Qo%2Fhywv8CNk2Kk4M MMuAHec9%2FOLKhJ6uUNN%2By0rKo0U%3D&reserved=0; – https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.spiegel.de%2F international%2Feurope%2Flibya-how-frontex-helps-haul-migrants-back-to-libyan-torture- camps-a-d62c3960-ece2-499b-8a3f- 1ede2eaefb83&data=04%7C01%7Cfrontex%40frontex.europa.eu%7C10baec0fa652446046 a208d9299fab0e%7C1a17d6bf51554e22bf292ba5da77f037%7C0%7C0%7C637586589242 212186%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI 6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=wxTI4x6AcROIJ%2FyWf6FSDK9Q5kZiehfGM N5PmVWd1KU%3D&reserved=0. NGOs constantly report about Frontex’s cooperation with the so-called Libyan Coast Guard. The content of the requested documents are therefore a matter of public concern. There is a need for the public to understand the functioning of the Operation Themis. For these reasons, I consider that Frontex is legally obliged to provide me with the requested documents. Having reconsidered the decision of 17 May 2021, please find the documents, including the most recent handbook issued in 2019, herewith attached. Frontex - European Border and Coast Guard Agency www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01

In accordance with Article 8(1) of Regulation (EC) No 1049/20011, you are entitled to institute court proceedings and/or make a complaint to the European Ombudsman under the relevant provisions of the Treaty on the Functioning of the European Union. 1 Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). Frontex - European Border and Coast Guard Agency www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01