Thank you for your letter of 16 April 2021 concerning my request for access to documents held by Frontex. In accordance with Article 7(2) of Regulation EC 1049/2001, I herewith lodge a confirmatory application and request Frontex to reconsider its position within 15 working days of receiving this reply. Firstly, I would like to thank the agency for considering my initial request and identifying one relevant document. It is regrettable, however, that you have chosen not to disclose this document in its totality. As detailed below, I argue that Frontex’ use of the exceptions cited in Articles 4(1) and 4(2) to justify complete non-disclosure of this document is excessive, disproportionate, and runs contrary to both the spirit and letter of Regulation EC 1049/2001 and relevant case law. Please note that this confirmatory application does not pertain to information relating to personal data and protected from public disclosure pursuant to Article 4(1)(b). In considering this confirmatory application, it is first of all worth recalling that the necessity to give utmost consideration to public interest criteria follows from the fact that Regulation 1049/2001 was adopted as a result of a continuous development on a European level to enhance democracy by making the decision-making process of the institutions more transparent. Moreover, it has been clearly established in previous case law that “the purpose of the regulation [1049/2001] is to give the public the widest possible right of access” and that “the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly” (paragraph 55).(1) 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

It is therefore regrettable that Frontex has opted for apply an excessively broad application of the exceptions in justifying a full rejection of the identified document, thereby acting against the spirit of facilitating greater transparency of the conduct of EU agencies and against the letter of established case law. In your letter, you invoke the exception cited in Article 4(1)a relating to public interest as regards public security, claiming that some of the information contained in the document “contains detailed information related to reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities”, the disclosure of which “would” significantly undermine the “effectiveness of law enforcement measures”. I disagree with your assessment. Serious Incident Reports follow a standardised template that contains only basic information regarding the type of incident, location, time, and only a brief description of the “information/allegations” pertaining to the incident. Consequently, the SIR 1 See also Case C-64/05 P Sweden v Commission [2007] ECR I-11389, paragraph 66.is highly unlikely to contain any detailed information that could foreseeably and non-hypothetically pose a serious harm to the public interest as defined by Article 4(1). I therefore invite you to reconsider your invocation of this exception in relation to the requested document. In your letter, you also argue that the document “refers to details of the operational area of an ongoing operation and therefore cannot be released” because this would undermine the public interest as regards public security. The reasoning you offer is not compelling, however, as it fails to demonstrate how disclosure would pose anything more than hypothetical harm to the public interest. The mere fact that Frontex continues to be involved in an ongoing operation in the Aegean Sea is not in itself a compelling reason for non-disclosure of this document in its totality. Furthermore, as noted above, the SIR template does not contain any information with regards to the operational area that could pose a foreseeable and non- hypothetical harm to the public interest as regards public security. What is more, your justification for non-disclosure also contravenes Frontex’ routine (partial) disclosure of SIRs, including in areas where Frontex operations are ongoing. Your application of the exception under Article 4(1) is therefore excessive and arbitrary. Finally, in your letter, you also cite the exception under Article 4(2) third indent of Regulation (EC) No 1049/2001, arguing that disclosure of the document “would undermine the protection of the purpose of investigations”. First, it is not clear from your letter in what sense this document concerns an ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Secondly, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. The risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical (see, to that effect, Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 56). No compelling case – i.e. how a single SIR document could foreseeably undermine any ‘investigation’ - has been made in your letter. Furthermore, you also claim that no overriding public interest is “ascertainable” in this case that would justify at least partial disclosure of the document. This is a bewildering assessment in light of recent developments surrounding the agency’s operational activities in the Aegean Sea. As you are no doubt aware, over the past months, serious and credible concerns have been raised by the European Commission, Members of the European Parliament, a vast range of European civil society organisations, some of the most reputable news organisations, as well as countless EU citizens concerning the involvement of the agency in fundamental rights violations in the Aegean Sea. Frontex operational activities in Greece are currently the subject of scrutiny by the European Parliament Frontex Scrutiny Group, the European Anti-fraud Office, as well as a Preliminary action at the European Court of Justice and Communication to the Office of the Prosecutor of the International Criminal Court. Indeed, the extent of public interest regarding the agency’s activities in the Aegean Sea are unprecedented for an EU agency and demonstrates the utmost importance of transparency regarding all Serious Incident Reports that may pertain to fundamental rights violations. In light of these circumstances, and contrary to your assessment, there is therefore an overwhelmingly strong case for establishing an overriding public interest in disclosure of this document that is objective and general in nature. In light of the above, I would like to ask Frontex to reconsider its position and disclose the identified document within the 15-day period set down in Regulation 1049/2001. I would also 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

like to remind the agency of its obligation under EU case law (case T-188/98, para. 46) to review each argument put forward by the applicant and address them individually. In accordance with the right to privacy and protection of personal data, I expect my application to be dealt with confidentiality, particularly in any communication with third parties. (1) See also Case C-64/05 P Sweden v Commission [2007] ECR I-11389, paragraph 66. Before addressing your arguments individually, please allow me to recall that as explained in Frontex reply of 16 April 2021, the reference to ongoing investigations is an element in addition to the other three elements indicated in said reply, i.e. personal data, details of an operational area of an ongoing joint operation, as well as reporting tools and methods used by law enforcement officials. 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 (Article 4(1)(a) first indent of Regulation (EC) No 1049/2001), enjoys a wide discretion for the purpose of determining2 whether such disclosure to the public would undermine the interests protected by that provision. In our reply of 16 April 2021, we provided ample information to allow you “to understand the reasons why access to the information requested”3 regarding these incidents 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 this 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 this current and in future operations or to inflict harm on officials and assets.4 While further information cannot be provided without jeopardizing that the interests, which the exceptions are specifically designed to protect, are undermined by de facto revealing the contents of the document “and thereby depriving the exception of its very purpose”5, the reasons provided on 16 April 2021 and further elaborated in here in regard to these interests clearly show that there is a foreseeable, and not merely hypothetical, risk to public security in regard to them. It is thus justified 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 Frontex for the application of that exception.6 I would also like to recall that if Frontex, as it did and explained on 16 April 2021, finds that disclosure would undermine the protection of the public interest as regards public security, it “shall refuse access”. The first sentence of Article 4(1) of Regulation (EC) No 1049/2001 does not leave discretion for the institution. Concluding, I would also like to stress again that the exception under Article 4(1)(a) first 2 Judgment 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 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 110. 4 Judgment 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 26 April 2005 in case T-110/03, Sison v Council, para. 84. 6 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

indent had to be applied in combination with Article 4(1)(b) and Article 4(2) third indent of Regulation (EC) No 1049/2001. In regard to your first argument reproduced in paragraph 3 of your confirmatory application, Regulation (EC) No 1049/2001 is based on Article 15 of the Treaty on the Functioning of the European Union7 as well as Article 42 of the Charter of Fundamental Rights of the EU8 (“CFR”). Regulation (EC) No 1049/2001 lays down general principles and limits within the meaning of Article 52 of the CFR on the grounds of public or private interests. And while the focus of Regulation (EC) No 1049/2001 is indeed legislative decision-making processes, in the case at hand, Frontex did not act in such capacity and therefore the Agency enjoys a wider discretion regarding the applicability of the exceptions under Article 4(1) and (2) of Regulation (EC) No 1049/2001 that Frontex had to invoke on 16 April 2021. Based on these considerations and also in light of the first paragraph of my reply in this letter, Frontex was entitled to exercise wider discretion when it comes to invoking exceptions under Article 4(1) and (2) of Regulation (EC) No 1049/2001 and I thus uphold my decision of 16 April 2021. As a consequence, I can also not follow your second argument reproduced in paragraph 4 of your confirmatory application, as the combined applicability of all elements under Article 4(1) of Regulation (EC) No 1049/2001 across the document, in combination with the currently ongoing investigations did not and do not make a release possible. In regard to your third and fourth argument reproduced in paragraphs 5 and 6, respectively, of your confirmatory application, I refer again to the first paragraph of my reply in this letter. In addition, the fact that serious incident reports were made available in the past shows that Frontex conducts an individual and case-by-case examination of the documents forming part of an application for public access to documents. As in your initial and confirmatory application, Frontex appraises, for each individual serious incident report forming part of an application for public access to documents, whether an exception under Article 4 of Regulation (EC) No 1049/2001 has to be applied – for which all factors prevailing at the time of such holistic appraisal are considered. The fact that serious incident reports were released in the past can therefore not create a precedence for the release of the document to which you seek access now as the former concerned, inter alia, different points in time and of course completely different incidents. The serious incident reports so far released are therefore not comparable to the serious incident report for which you apply now.9 I can also not follow your fifth argument reproduced in paragraph 7 of your confirmatory application, for which I note that it was in addition to the exceptions under Article 4(1)(a) first indent and (b) of Regulation (EC) No 1049/2001 that Frontex had to invoke the exception of ongoing investigations within 7 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47. 8 Charter of Fundamental Rights of the European Union [2012] OJ C326/391. 9 Cf. 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), paras 90, 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

the meaning of Article 4(2) third indent of Regulation (EC) No 1049/2001. These investigations entailed Frontex officers, and in addition EU Member State officials, establishing facts in order to assess the – developing - situations in this serious          incident  10 which also formed the basis for the creation of this Serious Incident Report. As establishing facts must be undertaken in a sphere of confidentiality, a unilateral disclosure of this document would have undermined the trust of all parties involved in these investigations and undermined the cooperation of stakeholders. In addition, it is thus that even a partial disclosure would have compromised the investigators’ effective access to the facts as, based on this document, the investigated facts could have been distorted in such a way as effectively depriving the investigators of the possibility to conduct their investigations without interference. This is particularly relevant for the areas covered by serious incidents in regard to which the referred-to absolute exceptions under Article 4(1)(a) of Regulation (EC) No 1049/2001 apply. While I have to ask for your understanding that for these reasons, I am not at liberty to provide further information as not to deprive this exception and those exceptions referred to in the first paragraph of my reply in this letter of their very purpose. I conclude that releasing the document would have led to a foreseeable risk for the purpose of the investigations being undermined. In your sixth argument reproduced in paragraph 8 of your confirmatory application, for which I would again recall the arguments in the first paragraph of my reply in this letter, you question whether for this Serious Incident Report our decision to deviate from the principle that partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 has to be granted, was justified. However, this is to be examined separately11 from the constituting elements of Article 4(2) third indent of Regulation (EC) No 1049/2001, which - as explained on 16 April 2021 – is an exception Frontex had to invoke in addition to the absolute exceptions under Article 4(1) of Regulation (EC) No 1049/2001. 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 an overriding public interest test. While Frontex accountability to some of the EU institutions and bodies is not subject to the framework of Regulation (EC) No 1049/2001 and thus cannot be invoked here, I would like to emphasize again that Frontex does not act in a legislative context and that therefore a high threshold to prove the existence of an overriding public interest                 12 exists ,  which has to be proven by the        applicant . 13 However, your references to the “public interest regarding the agency’s activities in the Aegean Sea” and your interest “regarding all Serious Incident Reports that may pertain to fundamental rights violations”, are generic, based on non-evidenced allegations and are thus not related to the document in question.14 As in my explanations regarding your fifth argument related to the first test of Article 4(2) third indent of Regulation (EC) No 1049/2001, I also recall here that the ongoing investigations are linked to the absolute exceptions, which are also applicable to this document. Consequently, also under these grounds you could not prove the existence of an overriding public interest regarding Article 4(2) third 10 Judgment of 7 September 2017 in case C-331/15 P, Schlyter v Commission, para. 47. 11 Judgment of 13 January 2011 in case T-362/08, IFAW Internationaler Tierschutz-Fonds v Commission, para. 148. 12 Judgment of 14 November 2013 in case C-514/11 P and C-605/11 P, LPN and Finland v Commission, para. 93. 13 Judgment of 2 October 2014 in case C-127/13, Strack v Commission, para. 128. 14 Judgment of 9 October 2018 in case T-634/17, Pint v Commission, para. 56. 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

indent of Regulation (EC) No 1049/2001. In balancing all interests, the applicability of the absolute exceptions as well as those under Article 4(2) third indent of Regulation (EC) No 1049/2001 to the document 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. As indeed, the format of the Serious Incident Report to which you seek access is to a considerable level standardized15, the number of pieces of information falling under these exceptions led us, while balancing all interests including data protection obligations, to decide against its 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”16 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”17. Therefore, and as already stated in our reply of 16 April 2021, no partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 is possible. While I would like to assure you that, similar to all applications for public access to documents, also your applications were processed in line with Regulation (EU) 2018/172518 I come to the same conclusion as our reply of 16 April 2021. 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. 15 As you bring forward in your third argument in paragraph 5. 16 Applicable also for Regulation (EC) No 1049/2001: Judgment of 7 February 2002 in case T-211/00, Kuijer v Council, para. 57. 17 Judgment of 5 December 2018 in case T-875/16, Falcon Technologies v Commission, para. 103, et seq. 18 Regulation (EU) No 2018/1725 of 23 October 2018 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 23.10.2018, p. 39). 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