• The documents on which the Frontex Consolidated Annual Activity Report 2018 author relies to affirm that 635 irregular migrants were detected in 46 sightings at the BiH – Croatian border by the MAS operation • All correspondence with the Croatian authorities as to these mentioned 46 sightings in the Frontex Consolidated Annual Activity Report 2018 • Fundamental Rights Officer Reports for Croatia, Slovenia, and BiH in 2018 • Technical Equipment Mission Report for the border area Croatia-BiH for the timeframe 1 July 2018 – 31 December 2018. • Overview of operational activities 2018 -> Table indicating Frontex operations at HRV-BiH border in 2018. • Operational Plans and Evaluation Reports for the Western Balkans Operations 2018 for the time period 1 July 2018 – 31 December 2018 for the border area of Croatia/Bosnia and Herzegovina, including but not limited to the following documents as annexed or referred to: o International Coordination Centre (ICC) Daily Report incl. Joint Coordination Board (JCB) Minutes and Patrolling Schedule o Joint Operation Reporting Application (JORA): Incident Reports from Reporting Units o Monthly Activity Report o Alert Forms o Frontex Coordination Officer (FCO) Weekly Report o Analytical Reports o Frontex Situation Centre (FSC) Situational Report o Frontex Support Officer (FSO) Local Coordination Centre (LCC) Daily Report o Operational reporting, including but not limited to: - Shift reports 1 In accordance with Article 8(2) of 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

- Screening Reports - Weekly Frontex Support Officer (FSO) International Coordination Centre (ICC) Report o Evaluation Reports, including but not limited to: - Final Report from Member State - Final Report from Third Country - Frontex Evaluation Report • Multipurpose Aerial Surveillance (MAS) Reports for the BiH – Croatia border for the time period of 2018 • Documents and all of its annexes pertaining to any training of officers deployed to the Frontex Western Balkans Operations in relation to fundamental rights protection, including but not limited to the circumstances and protocol to follow for an officer to report any concerns as to serious incidents and/or breaches of fundamental rights during said detection and notification operations. To this end we request access to documents and all of its annexes, including but not limited to: Non-consolidated/full Annual Activity Reports 2018 to 2020, Fundamental Rights Training – including but not limited to presentations, minutes and reports – given to Border Guards (of Joint Operations) operating in Croatia 2018 – 2020. I note your arguments in your confirmatory application with reference to your response to our application for access to documents received on 8 June 2021 we hereby submit a timely confirmatory application as stipulated in article 7(2) in Regulation (EC) No 1049/2001 (the Regulation). We kindly ask you to reconsider your position on the refusals and restrictions to the requested documents in general and to the following points in particular. A) In regards to your point 4, including the refusal to provide the 92 mission reports, 50 pieces of correspondence and 144 situational reports that you identified in relation to the following points: •      The documents on which the Frontex Consolidated Annual Activity Report 2018 author relies to affirm that 635 irregular migrants were detected in 46 sightings at the BiH – Croatian border by the MAS operation •      All correspondence with the Croatian authorities as to these mentioned 46 sightings in the Frontex Consolidated Annual Activity Report 2018 •        Technical Equipment Mission Report for the border area Croatia-BiH for the timeframe 1 July 2018 – 31 December 2018 •        Frontex Situation Centre (FSC) Situational Report •      Multipurpose Aerial Surveillance (MAS) Reports for the BiH – Croatia border for the time period of 2018 1. As we have indicated repeatedly in our correspondence regarding our application, the information we seek is in regards to the “data as to the date, time and approximate locations" of the 635 detected irregular migrants by the multipurpose aerial surveillance (MAS) flights operation on the Croatian-BiH border as mentioned in the Frontex Consolidated Annual Activity Report 2018. 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

2. Given the nature of such information, it would seem likely that there would exist a consolidation of such information in document(s) much fewer in number than those you have identified. 3. As such, we would ask you to further investigate the documents you hold to identify any which contain this specific information we seek and provide us with these documents. 4. In regards to your refusal to disclose the documents that you have identified in relation to these points, such a response does not fulfill your obligations under the Regulation, namely article 4(6) which requires that if only parts of the document are covered by any exceptions, the remaining parts shall be released. 5. The disclosure of the specific information that we have requested (namely “the data as to the date, time and approximate locations of these 635 detected irregular migrants”) does not correspond to any of the exceptions you have cited under article 4 of the Regulation. 6. Your explanation of why a partial release of the documents cannot be undertaken is unsatisfactory. You indicate that the “the released documents would not convey any informative value due to its/their significantly reduced form.” It is very much in the public interest to understand the relationship between Frontex and the Member States with which it cooperates and the information that we seek is very relevant to understanding this relationship. The legal framework under which Frontex operates imposes obligations on the agency in relation to the fundamental rights and international protection obligations of its own personnel and that of Member States. As you are surely aware, there are well- documented allegations of serious and persistent patterns of abuse of the fundamental rights of migrants and asylum-seekers at the Croatian-BiH border, including during the time period for which the information is requested. There is therefore significant informational value in the specific data that we seek and we ask that you reconsider your refusal to provide a partial release of the documents. 7. In regards to your comments about the principle of sound administration and the administrative burden of a partial release of documents, the Regulation provides in article 6(3) that in the event that an application relates to a very large document or to a very large number of documents, the institution may confer with the applicant with a view to finding a fair solution. We respectfully suggest that this should have been taken place instead of the blanket refusal to provide any documents related to these points. 8. As per article 6(2) of the Regulation, the institution shall assist the applicant in clarifying any application to ensure that it is sufficiently precise. European Union case law has determined that this requirement includes indicating the documents held by the institution that are similar to those referred to in the application for access or which are likely to contain some or all of the information that is sought (see by analogy, Judgment of 26 October 2011 in Dufour v ECB, T-436/09, ECR, EU:T:2011:634, para 31). This requirement has also been underlined by the European Ombudsperson’s recommendation in case 1336/2017/JAS. 9. Therefore, we request you identify the documents that specifically contain the information we seek in relation to these points (namely “the data as to the date, time and approximate locations of these 635 detected irregular migrants”) and provide these documents. B)   In regards to your point 5, including the refusal to provide the six “Monthly Activity Report[s]”, one “Alert Form[s]” and four “Final Report[s] from Member State” identified in relation to the following points: Monthly Activity Report Alert Forms Final Report from Member State 10. According to article 4(6) of the Regulation, if only parts of the document are covered by any legitimate exceptions, the remaining parts shall be released. 11. Your explanation of why a partial release of the documents cannot be undertaken is unsatisfactory. You indicate that the “the released documents would not convey any informative value due to its/their significantly reduced form.” Given the nature of the documents you identified, it seems highly unlikely that the justification you cite (“they contain details crucial for situational awareness at the external borders”) would result in a significantly reduced document that would not convey any informative value. 12. In regards to your comments about the principle of sound administration and the administrative burden of a partial release of documents, we note that you have identified only 11 documents in relation to these points. 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

13. We therefore request that you provide the documents containing only redactions based on legitimate exceptions allowed in article 4 of the Regulation. This should be performed in light of European Union case law, which has repeatedly said that the right of access to documents must be as wide as possible and exceptions to access must be interpreted and applied strictly (see for example: Judgment of 1 February 2007, Sison v Council,               C-266/05 P,       EU:C:2007:75,        paras         61,     63). C) In regards to the document titled “Doc 2.pdf” (Operational Plan (Main Part) Amendment No 1 - JO Focal Points 2018 Land) 14. The redactions in this document are overly restrictive in light of articles 2 and 4 of the Regulation. 15. Furthermore, according to article 4(6) of the Regulation, if only parts of the document are covered by any legitimate exceptions, the remaining parts shall be released. 16. In particular, we disagree that the exceptions cited should apply to the block redactions as found in the following sections: 3. Description and General Assessment of the Situation; 5. Implementation; 7. Coordination Structure; 8. Command and Control, 10. Reporting; and 11. Working Conditions and Logistics. 17. Based on the nature of the document it is assumed that the information redacted is of a sufficient general nature that it would not undermine the protection of the public interest as regards     public   security     based      on any       of    the    reasons     cited. D) In regards to the seven documents titled “Doc 1” (Annexes of Operational Plan - Amendment No 2 - JO Flexible Operational Activities 2018 land on Border Checks) 18. The redactions in these documents are overly restrictive in light of articles 2 and 4 of the Regulation. 19. According to article 4(6) of the Regulation, if only parts of the document are covered by any legitimate exceptions, the remaining parts shall be released. 20. In particular, we ask you to reconsider the justifications for the exceptions for the redactions found in Annexes 3, 5, 10, 12, 13 and 14 and to provide revised documents that do not contain block redactions and contain only redactions based on legitimate exceptions allowed in article 4 of the Regulation. This should be performed in light of European Union case law, which has repeatedly said that the right of access to documents must be as wide as possible and exceptions to access must be interpreted and applied strictly (see for example: Judgment of 1 February 2007, Sison v Council, C-266/05                 P,          EU:C:2007:75, paras          61,          63). E)  In regards to the five documents containing “Doc 4”, “Doc 5” (Evaluation Report: Joint Operation Flexible Operational Activities 2018 Land on Border Checks, Operational Response Division, Field Deployment Unit) and Doc 6 (Operational Plan – Main Part, 2018/LBS/04) 21. The redactions in these documents are overly restrictive in light of articles 2 and 4 of the Regulation. 22. According to article 4(6) of the Regulation, if only parts of the document are covered by any legitimate exceptions, the remaining parts shall be released. 23. Based on the nature of the document it is assumed that the information redacted is of a sufficient general nature that it would not undermine the protection of the public interest as regards public security based on any of the reasons cited. F) In regards to the six documents containing “Focal Points Monthly Reports” (July 2018 – December 2018) 24. The redactions in these documents are overly restrictive in light of articles 2 and 4 of the Regulation. 25. According to article 4(6) of the Regulation, if only parts of the document are covered by any legitimate exceptions, the remaining parts shall be released. 26. Based on the nature of the document it is assumed that the information redacted is of a sufficient general nature that it would not undermine the protection of the public interest as regards public security based on any of the reasons cited. 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

Conclusion 27. We therefore request that you review these redactions in light of the requirement in article 4(6) of the Regulation to release any part of the document not covered by a legitimate exception. 28. We furthermore ask you reconsider your refusal to release certain documents as we have outlined above. 29. Finally, our repeated request to receive all responses and documents related to this application to this email address only and not through the Frontex portal has again been ignored. We again draw your attention to the European Ombudsperson’s decision in case 104/2020/EWM. In regard to your arguments of your ground A for non-disclosure of documents related to point 4 of your initial application please note that the figure of 635 irregular migrants detected originates from the cumulation of the respective figures from all the relevant reports and not from a consolidation of the relevant information which you allege are included in a single or small set of documents. In relation to the latter please be informed that your request under ground A.9 has been met as we have identified all the documents relating to the respective point of your initial application. In addition to this, please note that Frontex conducted another thorough assessment of the available documents and did not identify any additional documents. As to your ground A.8 I note our efforts to seek further clarifications with regard to the requested documents as well as in finding a commonly acceptable fair solution due to the large volume of documents that had to be identified and assessed prior to the registration of your initial application. Under your ground A.6, I note that you question the validity of the argument that “the administrative burden necessary to identify and redact the releasable materials would be disproportionate to the public interest in the disclosure exercise itself” and thus the consideration whether in this case a deviation from the principle that partial access has to be granted within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 was justified. However, this is to be examined separately2 from the constituting elements of Article 4(1) of Regulation (EC) No 1049/2001 which - as explained on 8 June 2021 - form absolute exceptions. These absolute exceptions are not subject to an overriding public interest test. Also, the independent examination under Article 4(6) of Regulation (EC) No 1049/2001 is not subject to such a test. I will nevertheless consider your arguments also in light of the overriding public interest test you refer to. You bring forward that It is very much in the public interest to understand the relationship between Frontex and the Member States with which it cooperates and the information that we seek is very relevant to understanding this relationship. The legal framework under which Frontex operates imposes obligations on the agency in relation to the fundamental rights and international protection obligations of its own personnel and that of Member States. As you are surely aware, there are well-documented allegations of serious and persistent patterns of abuse of the fundamental rights of migrants and asylum-seekers at the Croatian-BiH border, including during the time period for which the information is requested. There is therefore significant informational value in the specific data that we seek and we ask that you reconsider your refusal to provide a partial release of the documents. From this I understand that you link the overriding public interest to your intention to assess these allegations. While Frontex’s accountability is not subject to the framework of Regulation (EC) No 1049/2001 and thus cannot be invoked here, I would like to emphasise that Frontex does not act in a legislative context and that therefore a high threshold to prove the existence of an overriding public 2 Judgment of 13 January 2011 in case T-362/08, IFAW Internationaler Tierschutz-Fonds v Commission, para. 148. 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

interest exists3, which has to be proven by the applicant4. Your intention to assess these points does not however constitute such an overriding public interest5. Consequently, also under these grounds you could not prove the existence of an overriding public interest. Due to this, I turn back to your arguments under Article 4(6) of Regulation (EC) No 1049/2001 which you also bring forward in all other grounds (B- F) of your confirmatory application: In balancing all interests, the applicability of the absolute exceptions led Frontex to the conclusion that a deviation from the principle laid down in Article 4(6) of Regulation (EC) No 1049/2001 was necessary. The number of elements falling under these exceptions in the documents in question led us, while balancing all interests including data protection obligations, to decide against their partial release. This was and is motivated by “the administrative burden of blanking out the parts that may not be [disclosed, which] proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required”6 combined with the fact that a “partial access would be meaningless because the parts of the documents that could be disclosed would be of no use”7. Therefore, and as already stated in our reply of 8 June 2021, no partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 is possible. With reference to your arguments “The redactions in these documents are overly restrictive in light of articles 2 and 4 of the Regulation” and “Based on the nature of the document it is assumed that the information redacted is of a sufficient general nature that it would not undermine the protection of the public interest as regards public security based on any of the reasons cited” that you bring forward in points C,D,E and F of your confirmatory application as well as your point A.5 “The disclosure of the specific information that we have requested (namely “the data as to the date, time and approximate locations of these 635 detected irregular migrants”) does not correspond to any of the exceptions you have cited under article 4 of the Regulation” I note that your arguments and assumptions are purely hypothetical and generic in nature and you do not provide further clarifications as on which grounds you challenge the justifications provided for the redacted parts of the documents or the non-disclosed documents. However, kindly also be informed that Frontex, when considering a refusal to grant access to a document whose disclosure 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, enjoys a wide discretion for the purpose of determining8 whether such disclosure to the public would undermine the interests protected by that provision. In our reply of 8 June 2021, we provided ample information to allow you “to understand the reasons why access to the information requested”9 was refused. I would thus like to emphasise that if the information contained therein were to fall into the hands of the criminal gangs involved in migrant smuggling and trafficking of human beings, they would be able to obtain an insight into patrolling areas and schedules as well as human resources deployed and their distribution in the area, types of the deployed assets, their movement patterns, and tools and methods applied by law enforcement officials in ongoing and future operations in the same areas. This information by itself - but especially in combination with other sources - would allow such gangs to adapt their modus operandi accordingly in order to circumvent border surveillance in current and future 3 Judgment of 14 November 2013 in case C-514/11 P and C-605/11 P, LPN and Finland v Commission, para. 93. 4 Judgment of 2 October 2014 in case C-127/13, Strack v Commission, para. 128. 5 Judgment of 11 July 2018 in case T-643/13, Rogesa v Commission, para. 107. 6 Applicable also for Regulation (EC) No 1049/2001: Judgment of 7 February 2002 in case T-211/00, Kuijer v Council, para. 57. 7 Judgment of 5 December 2018 in case T-875/16, Falcon Technologies v Commission, para. 103, et seq. 8 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 65. 9 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 110. 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

operations or to inflict harm on officials and assets10. While further information cannot be provided without jeopardising that the interests, which the exceptions are specifically designed to protect, are undermined by de facto revealing the contents of the documents and thereby depriving the exception of its very purpose11, the reasons provided on 8 June 2021 and further elaborated in this reply in regard to these interests clearly show that there is a foreseeable, and not merely hypothetical, risk to public security in their regard. There is, therefore, a foreseeable risk to public security that obliges Frontex to invoke these exceptions in regard to Article 4(1) of Regulation (EC) No 1049/2001 within the wide discretion which is accorded to Frontex for the application of that exception12. Finally, in regard to your reference to the European Ombudsman Decision in case 104/2020/EWM, please be informed that decisions of the European Ombudsman are not legally binding erga omnes. Notwithstanding, the procedure you referred to pertains to the submission of applications and the medium to which Frontex replies. The Transparency Office has processed your application and has complied with your request regarding your preferred reply address. In accordance with Article 8(1) of Regulation (EC) No 1049/2001, 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. 10 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 73. 11 Judgment of 7 February 2018 in case T‑851/16, Access Info Europe v European Commission, para. 122. 12 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 74. 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