FRONT=X

Fundamental Rights Officer’s mission report of the visit conducted in Evros, Greece
in April 2021

| note your arguments in your confirmatory application

Paragraph 1 “To start with, I would like to highlight inconsistencies in the practice of the
Transparency Office. The FRO Evros Mission Report of 2019 was released without redaction
except for personal data information. It is therefore not comprehensible that the FRO Mission
Report on Evros is heavily redacted. Please justify the reasons and supporting legal basis for
which the FRO Mission Report on Evros of April 2021 is heavily redacted.”

Paragraph 2 “Secondly, the document is inconsistently redacted. Information on visited locations
by the FRO are visible in the first page where the schedule is presented and redacted in the rest
of the document. This practice defeats the argumentation provided in the redaction of locations.
Therefore, please justify to what extent the disclosure would lead to harming the effectiveness
of Frontex operations or be detrimental to situational awareness.”

Paragraph 3 “Lastly, there have been concerns of fundamental rights violations taking place in
Frontex’s operational area of Evros, and the information ought to be disclosed in light of the
principle of widest possible access to documents of EU Agencies. In order to support this
affirmation I refer to the visit conducted by the Anti-Torture Committee of the Council of
Europe in 2020 to the same police stations and detention facilities, among them Alexandroupolis
and Tychero and the subsequent report. In this sense, there is an overriding public interest in
the disclosure in accordance with Regulation 1049/2001.”

Before addressing your points individually, I would like to recall that the aim of the Regulation (EC)
No 1049/2001 as laid down in its Article 1(a) and as implemented in the reply to your initial application,
is to provide the widest possible access to documents! and exceptions are to be applied restrictively.
Nevertheless, in considering a refusal to grant access to parts of a document whose disclosure would

undermine the protection of the public interest as regards public security as laid down in Article 4(1)(a)

' 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).

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first indent of Regulation (EC) No 1049/2001, Frontex enjoys a wide discretion for the purpose
of determining 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? contained in redacted passages of the report
had to be refused. In this context, it has to be borne in mind that the operational activities in the area
are currently ongoing. As a consequence, if the information contained therein were to fall into the
hands of criminal gangs involved in migrant smuggling and trafficking of human beings, they would be
able to obtain an insight into locations of the deployment of Frontex human resources and assets, their
distribution in the area, as well as further information of an operational nature. 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 the current and also in future
operations or to inflict harm on officials and assets*. 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 passages in question and thereby depriving
the exception of its very purpose? , the reasons provided on 8 June 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 if these passages were revealed. It is this risk that forced Frontex not to release these

elements.

With reference to your argument in Paragraph 1 of your confirmatory application, please note that the
document of 2019 which you refer to is a past example and the document you apply for now stems from
2021. These are different documents and have different content and Frontex appraised them in light of
all factors and circumstances at the time of the application. | would like to stress again that the current
operational activities in the area had been already ongoing when you submitted your initial application.
Therefore, the fact that one FRO Mission Report was released to a greater extent in the past does not
create a precedent for the release of non-comparable FRO Mission Report - inter alia, with different
content, temporal scope and prevailing circumstances - now and | thus uphold the decision of 8 June
2021.

As regards your argument in Paragraph 2 of your confirmatory application, as | stated above, our reply
of 8 June 2021 was in line with the aim of the Regulation (EC) No 1049/2001 to provide the widest
possible access to documents and to apply exceptions restrictively. As also explained above, in its
appraisal of which parts of a document it has to redact, Frontex limited itself to redact those elements
which in themselves or in combination with other sources, would reveal sensitive operational
information that 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 as explained on 8 June 2021
and above. As while referring to “the rest of document” you did not provide any concrete examples for

these alleged inconsistencies, I uphold our decision of 8 June 2021 also in regard to this argument.

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

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In Paragraph 3 of your confirmatory application, you allege a general overriding public interest.
However, the majority of the elements which Frontex had to redact fall under Article 4(1)(a) of
Regulation (EC) No 1049/2001, which are not subject to the overriding public interest test. For those
elements falling under exception 5 as explained in the legend attached on 8 June 2021, please note
that they had to be invoked only in addition to the exceptions under Article 4(1)(a) of Regulation (EC)
No 1049/2001. Additionally, your general reference to an overriding public interest does not meet the
high threshold set by the European Court of Justice to demonstrate the existence of such® and which
you would have to prove concretely’. Consequently, the passages, whose disclosure was additionally
justified by the protection of an ongoing decision-making process, cannot be released based on Article
4(3) of Regulation (EC) No 1049/2001 and in light of the also applicable exceptions under Article 4(1)(a)
of Regulation (EC) No 1049/2001 as explained above and in the legend attached on 8 June 2021. | thus

concur also in this regard with the decision of 8 June 2021.

As a part of my reconsideration, I conclude that one further element of the document has to be redacted
as it contains personal data such as names of individuals and/or characteristic features which could lead
to the identification of individuals. Their disclosure would undermine the protection of privacy and the
integrity of the individual, in particular in accordance with European Union legislation regarding the
protection of personal data and therefore have to be precluded pursuant to Article 4(1)(b) of Regulation
(EC) No 1049/2001.

In sum, I amend the decision of 8 June 2021 as above and as reflected in the attached document.

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.

6 Cf. Judgment of 14 November 2013 in joint cases C-514/11 P and C-605/11 P, LPN and Finland v Commission, para. 93.
7 Cf. Judgment of 2 October 2014 in case C-127/13, Strack v Commission, para. 128.

a

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