- any Serious Incident Reports related to your Central Mediterranean air mission on 12 July 2020, if any. - The Technical Equipment Mission Report related to your Central Mediterranean air mission on 12 July 2020 - The ICC Daily Report related to your Central Mediterranean air mission on 12 July 2020 - The JCB Minutes of 12 July 2020. - the Daily Reporting Package of 12 July 2020 - all communications by the Fundamental Rights Officer and the Executive Director internally within Frontex and with the Libyan, Italian, and Maltese authorities in connection with your air operation in the Central Mediterranean on 12 July 2020 - images and videos related to your air operation in the Central Mediterranean Sea on 12 July 2020 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

- the list of all available documents related to your air operation in the Central Mediterranean Sea on 12 July 2020 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 und 1367/2006”(reference PAD 2021-00120). My initial request, as well as all subsequent correspondence, can be found here: https://fragdenstaat.de/anfrage/request-according-to-eu-regulation-10492001-und-13672006/ 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 : 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

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. 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

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=gigz1Taa9q4; https://www.spiegel.de/international/europe/libya-how-frontex-helps-haul-migrants-back-to- libyan-torture-camps-a-d62c3960-ece2-499b-8a3f-1ede2eaefb83). 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. 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

Preliminary considerations Before addressing each of your arguments, I would like to point out that, further to the protection of personal data within the meaning of Article 4(1)(b) of Regulation (EC) No 1049/2001, the non-disclosure of the six documents identified under your initial application was justified as otherwise the protection of public security as per Article 4(1)(a) first indent of Regulation (EC) No 1049/2001 would have been undermined. As regards the latter provision, Frontex enjoys a wide discretion for the purpose of determining whether such disclosure to the public would undermine the interests                      protected . 2 In Frontex’ reply of 4 June 2021 ample information was provided to allow you “to understand the reasons why access to the information requested”3 regarding Frontex air mission was refused. I would thus like to reemphasise that if the information contained in the documents were to fall into the hands of criminals 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, the types of the deployed assets and their movement patterns, in addition to tools and methods applied by law enforcement officials including reporting patterns and technical details regarding ongoing and future operations in the same areas. This information by itself - but especially in combination with other sources - would allow criminals to adapt their modus operandi in order to circumvent border surveillance when organizing and facilitating illegal border crossings in current and future operations, or to inflict harm on officials, assets and third parties.4 A 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 purpose5. However, the reasons provided on 4 June 2021 and further elaborated hereby in regard to these interests clearly show that there is a foreseeable and not merely hypothetical risk to public security in regard to them. Frontex is thus obliged to invoke these exceptions in regard to Article 4(1)(a) first indent of Regulation (EC) No 1049/2001 within the wide discretion which is accorded to the Agency for the application of that exception.6 Furthermore, please be informed that the documents form an important element for the development of risk analyses and other forms of operational adjustments, which constitute a specific form of internal decision-making processes. Being an important source for determining the strategic orientation of the Agency, the possibility to conduct such analyses without interference is crucial for Frontex to effectively exercise its mandate. Consequently, releasing this information would enable third parties to gain insights into this decision-making process and, with ascertainable likelihood, result in depriving Frontex of the possibility to conduct such analyses wholly independently, free from any external pressure or third-party influence. As a consequence, releasing this information would seriously undermine Frontex’ internal decision-making processes. As no overriding public interest that is objective and general in nature and not indistinguishable from individual or private interests for the 2 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 65. 3 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 110. 4 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 73. 5 Judgment of the General Court of 7 February 2018 in case T-851/16, Access Info Europe v European Commission, para. 122. 6 Judgment of the General Court 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

release of this information is ascertainable in the present case, information pertaining to this variable cannot be released based on Article 4(3) of Regulation (EC) No 1049/2001. Your Arguments under Ground 1 With reference to your general argument under Ground 1, in which you claim that the public security considerations leading to the conclusion on non-disclosure of the documents are “not sufficiently particularised”, kindly refer to the “Preliminary considerations” above. As to “reporting tools and methods”, which, under your first argument, you deem “unclear” and “not defined”, please be informed that reporting tools and methods used by law enforcement officials are central constituents in combatting, in the case of Frontex, cross-border crime including human smuggling and trafficking in human beings. Further to what has been explained in Frontex’ reply to your initial application, an insight into reporting tools used by officials to combat these forms of criminal activities would enable criminals to know the reporting patterns and tools to transmit information regarding such activities, which would enable them e.g. to disrupt the reporting on criminal activities or, in particular by intercepting information transmitted, to avoid controls aimed at preventing unlawful access to the borders or to otherwise exploit this knowledge to the detriment of public security. This information would also facilitate the identification of the reporting entities and understanding of their movement patterns and mechanisms, which would also pose a significant risk of attack to deployed officers and assets.7 These points are even more relevant regarding the methods, procedures and processes, used by law enforcement officials to conduct border control tasks and counter criminal activities. In your second and third argument you claim that “Frontex does not prove (…) how the disclosure of the requested information (…) would concretely jeopardize future operations.”, and you indicate that the risk threatening to public interest must be foreseeable to justify the non-disclosure of te documents. Noting the relevance of the criterion of foreseeability, please refer to the information already provided to you. In particular, the details of technical equipment as well as information on number and profile of human resources deployed in the operational area are associated with specific capabilities and conditions for performing border control tasks. If revealed and combined with other publicly available information or even without such processing, they can foreseeably be used by the criminal networks to adjust their modus operandi to circumvent border control checks. Furthermore, due to the fact that Frontex operations entail certain degree of continuity, which can be easily inferred from the open source information, revealing the requested information would predictably affect the effectivity of ongoing and future operations in the same area. Furthermore, since Frontex’ operational activities, in light of their objectives, are planned, optimised and exercised in accordance with specific capabilities and availability of technical and human resources, the negative effect resulting from disclosure, could be balanced only by respective changes in modus operandi and resources used, which are neither justified by the objective circumstances and operational needs nor achievable with the available means. 7 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 73. 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

Your Arguments under Ground 2 With regard to your Ground 2, please be informed that all documents were subject to a case-by-case analysis, which resulted to the conclusion that similar considerations regarding various aspects of public security, as explained to you in the letter of 4 June 2021, pertain to particular pieces of information contained in them. No belonging of the documents to any category was considered, as the documents, due to their differentiated nature and purpose, do not form any. Furthermore, please note that the alleged impact of classification of the documents by their security level is reflected in no dispositive provisions nor presumptions binding an institution deciding on access to documents under Regulation (EC) No 1049/2001. It is thus the specific content of each of the documents, and not the fact that it belongs to a particular category, which led to their non-disclosure. Your Arguments under Ground 3 Concerning your Ground 3, the proactive communication obligation stemming from Regulation (EU) 2019/18968 has to be distinguished from the obligations under Regulation (EC) No 1049/2001. Please note the judgment of the Court of Justice of the EU of 27 November 2019 in Case T-31/18, in which the Court held in regard to Article 74(2) of the preceding Regulation9, which to a large extent has the same wording and obligation as Article 114(2) of Regulation (EU) 2019/1896: In that regard, it must be observed that, although Frontex is required under Article 8(3) and Article 74(2) of Regulation 2016/1624 to communicate with the public on matters falling within the scope of its tasks, it cannot reveal operational information which would jeopardise attainment of the objective of those operations.10 Similar to Article 74(2) of the preceding Regulation, communications initiated on Frontex’ own initiative under Article 114(2) of Regulation (EU) 2019/1896 are not subject to the framework governing public access to documents as laid down in Regulation (EC) No 1049/2001 and any publications under Article 114(2) of Regulation (EU) 2019/1896 would not be “setting a precedent that would require [Frontex] to communicate information which it believes puts public security at risk.”11 Therefore your arguments based on this different legal framework, pointing out that no alleged rule of denying any access to operational information on ongoing operations either could or did justify Frontex position of 4 June 2021 merely, are not supported by Frontex. The decisive criterion was the negative effect on the attainment of the objectives of the operation, which was explained to you in the letter of 4 June 2021 in detail with respect to every aspect of public security in the operational context and was further elaborated under “Preliminary considerations” and in reply to “Your arguments under Ground 1” above. 8 Regulation (EU) 2019/1896 of 13 November 2019 on the European Border and Coast Guard (OJ L 295, 14.11.2019, p. 1) 9 Regulation (EU) 2016/1624 of 14 September 2016 on the European Border and Coast Guard (OJ L 251, 16.9.2016, p. 1). 10 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 91. 11 Judgment of the General Court of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 93 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

Your Arguments under Grounds 4 and 5 Concerning your Grounds 4 and 5, which will be addressed together, please recall the arguments set out under “Preliminary considerations” above. Under your Grounds 4 and 5, you question the consideration whether in this case a deviation from the principle of partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 was justified. To that end, in your Ground 5, subparagraph 1 you refer to the “interest in the disclosure exercise itself”, supporting your argument with general statements related to the public’s interest in Frontex activities contained in subparagraphs 2 and 3. However, the exemptions applicable to the documents requested by you with your application, are not subject to an overriding public interest test and the conditions for application of Article 4(6) of Regulation (EC) No 1049/2001 are to be examined                        separately   12  from the constituting elements of exemptions under Article 4(1)(a) first indent and at a different stage of the analysis. Moreover, the independent examination under Article 4(6) of Regulation (EC) No 1049/2001 is not subject to a balancing against “an overriding public interest” either. Due to this, and going back to your arguments under Article 4(6) of Regulation (EC) No 1049/2001: in balancing all interests, the applicability of the absolute exceptions to all documents 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 six documents resulted, while balancing all interests including data protection obligations, in Frontex deciding 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”13 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” .14 Therefore, and as already stated in our reply of 4 June 2021, no partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 is possible. In sum, he decision of 4 June 2021 is upheld as explained above. 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. 12 Judgment of 13 January 2011 in case T-362/08, IFAW Internationaler Tierschutz-Fonds v Commission, para. 148. 13 Applicable also for Regulation (EC) No 1049/2001: Judgment of 7 February 2002 in case T-211/00, Kuijer v Council, para. 57. 14 Judgment of 12 July 2001 in case T-204/99, Mattila v Council and Commission, para. 69; cf. Judgment of 5 December 2018 in case T-875/16, Falcon Technologies v Commission, para. 103, et seq. 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