We are requesting data regarding Frontex rescues in Spanish SAR waters in the years 2020 and 2021. Please provide data broken down by date of rescue - time of rescue - latitude and longitude of rescue - number of boats - number of people rescued. In order to be able to update our data bases. If possible, we ask you to provide the data in excel format, if not, in the format of your preference. Your arguments in your confirmatory application are herewith noted: Thank you for your email of Case Id: PAD-2021-00243 concerning my request for access to documents held by Frontex. In accordance with Article 7(2) of Regulation 1049/2001, I herewith lodge a confirmatory application, requesting Frontex to reconsider its position within 15 working days of receiving this letter. This confirmatory application relates to the non- disclosure of the “latitude and longitude of rescue" in which Frontex had any involvement. In this regard, the letter invokes exceptions under Article 4 (1) (a) – public security – and 4 (3) – internal decision making. [Argument 1] First and foremost, when considering this confirmatory application, the Transparency Office should remember that Regulation 1049/2001 builds on the principle of widest possible right of access. Therefore, exceptions must be applied strictly and, in no case, should the Transparency Office consider reputational or political risks to the agency. Rather, it must solely analyse the access request in the light of Regulation 1049/2001. Furthermore, when considering the exceptions, the agency must justify its choice on the basis of foreseeable and more than purely hypothetical harm. In the present case, however, the Transparency Office refers to the abstract idea of “effectiveness of operations" making use of generic language in justifying non-disclosure – i.e. “jeopardise the efforts carried out by the European Union and Member States to curtail criminal activities at the external borders. This would benefit in particular criminal networks, especially those involved in people smuggling and trafficking in human beings, which would ultimately put the lives of migrants in danger". This generic reference to “criminal activities" serves as a shield to routinely justify opacity concerning the work of the agency at the EU external borders, preventing, at the same time, public scrutiny and oversight. The letter does not contain any specific explanation as to how access to the latitude and longitude of rescue operations in 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

which Frontex had any involvement could specifically – and non-hypothetically – undermine the interest protected by the public security exception. Therefore, the non-disclosure of fails to comply with the principle of widest possible access. What is more, it should be noted that the requested locations are simply isolated points on a map. Two dozen isolated points on a map of the Spanish SAR zone, an area of 1.5 million square kilometres, over a time period of 20 months does not provide information on the trajectory of Frontex vessels. Therefore, the requested information does not pose a non hypothetical risk to the interest protected by the above-mentioned legal precept. For the same reason, this additional information (SAR locations) over and above the information already disclosed would not provide smuggling and other criminal networks with information that would allow them to change their modus operandi. [Argument 2] Furthermore, the second subparagraph of Article 4 (3) of Regulation No 1049/2001 requires for the decision-making process to be seriously undermined. According to case law (Case T-144/05 Muñiz v Commission) this would mean that the disclosure of the requested documents has a substantial impact on the decision-making process. The letter, however, fails to provide any coherent and substantiated assessment on the concrete impact/negative effects of disclosure and how disclosure would seriously undermine analysts' decision-making process. There is no ascertainable likelihood that the disclosure of the locations where rescue operations took place could undermine the capacity of risk analysts to collect and analyse information. This reasoning, by contrast, appears to be rooted in a dangerous attempt to undermine EU citizens right to access documents from public EU agencies which is, importantly, a fundamental right enshrined in the EU Charter of fundamental rights. Furthermore, Frontex Annual Risk Analysis does not contain any analysis of search and rescue practices in the context of Frontex operations – the very issue pertaining to my request. [Argument 3] Lastly, the letter simply states that “no overriding public interest…is ascertainable in the present case". There is no evidence that a public interest test has been conducted by the Transparency Office. In this respect, it is important to note that the subject of my confirmatory application relates to a field of public policy making that has concerned EU citizens ever since we witnessed the first deaths at the EU's external borders. There is a growing demand from the public to know about the concrete role of Frontex in SAR operations – as evidenced by the multiple civil society initiatives and campaigns as well as the EU Parliament activities in this area. There is therefore no doubt that the matter is of public interest. What is more, the disclosure of this information is in the public interest as to enable citizens to effectively take part in shaping public policies and subject public bodies to scrutiny and oversight. In order to enjoy these rights, we, therefore need to know. In this regard, it is important to recall that Frontex has been criticised by the EU Ombudsman and the EU Parliament precisely because of its opacity. In sum, there is a specific overriding public interest in disclosure of the locations where rescue operations took place." Preliminary considerations Before addressing each of your three arguments - marked for easier identification - individually, Frontex recalls that as explained in the reply of 6 October 2021, the reference to the internal decision-making process is an element in addition to the other two elements indicated in said reply, i.e., details of the operational area and sensitive operational information relating to an ongoing operation. 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 ),  2   enjoys a wide discretion when         determining     3 whether such disclosure to the public would undermine the interest protected by that provision. In the reply of 6 October 2021, Frontex provided 2 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). 3 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 65. 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

ample information to allow you “to understand the reasons why access to the information requested”4 pertaining to the geographic coordinates of 82 SAR incidents of 2020 and incidents of 2021 was refused. Frontex stresses again that if this information was to fall into the hands of criminal outfits involved in migrant smuggling and trafficking of human beings, they would be able to obtain an insight, in particular in combination with other sources into the position and movement details of Frontex’s assets involved in operational activities in ongoing and future operations in the same area. This information by itself and/or combined with other information provided to you and accessible through other sources would allow such outfits to adapt their modus operandi in order to circumvent border surveillance in current and in future operations and even to inflict harm on officials and assets.5 At the same time, the disclosure of this information would reveal the modus operandi of law enforcement officials performing border control and coast guard duties, enabling third parties to foresee Frontex actions and depriving the operations of any strategy and element of surprise, ultimately defeating their purpose to counter and prevent cross-border crime and unauthorised border crossings. In this light, the reasons provided on 6 October 2021 and further elaborated in here clearly show that there is a foreseeable, and not merely hypothetical, risk to public security if the requested information contained in the documents was released. Therefore, Frontex had to invoke this exception as required by Article 4(1)(a) first indent of Regulation (EC) No 1049/2001.6 As also explained in Frontex’ reply to your initial application, further to the exception in Article 4(1)(a) first indent of Regulation (EC) No 1049/2001, Article 4(3) of Regulation (EC) No 1049/2001 in relation to the ongoing decision-making process regarding the adjustment, based on various considerations, of this and other operations, which would otherwise be seriously undermined, was and is applicable. Your Argument 1 regarding the risk to cause harm to public security by the disclosure of the requested data In your Argument 1 you allege that Frontex refers to “the abstract idea of “effectiveness of operations" making use of generic language in justifying non-disclosure (…) preventing, at the same time, public scrutiny and oversight” and that you were not provided with specific explanation on how the disclosure of the requested information could pose a foreseeable threat to public security. However, the explanations provided to you in Frontex’ reply of 6 October 2021, further elaborated in the “Preliminary considerations” section above, allow you to understand the detrimental effect which the disclosure of the requested information would have in regard to the attainment of Frontex’ operational objectives. Contrary to your statement, the information contained in the documents is not just “two dozen of isolated points on a map” but relates to 82 maritime interventions in 2020 for which information related to points in time, numbers of vessels intercepted and persons rescued contained in documents could be made available to you. As Frontex thus could release these pieces of information contained in the documents, it had to bar access to the coordinates as mandated by Article 4(1)(a) first indent and (3) 4 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para. 110. 5 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 73. 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

of Regulation (EC) No 1049/2001 so balancing principle of “the widest possible access” with other principles and interests enshrined in that Regulation. Your Arguments 2 and 3 regarding the protection of the internal decision-making process and alleging the existence of an overriding public interest Regarding your Argument 2, in which you indicate that “The letter, however, fails to provide any coherent and substantiated assessment on the concrete impact/negative effects of disclosure and how disclosure would seriously undermine analysts' decision-making process.”, reference is again made to Frontex’ reply to your initial application and the further explanations in “Preliminary considerations” above: the public interest protected under Article 4(3) of Regulation (EC) No 1049/2001 had to be invoked in addition to Article 4(1)(a) first indent of that Regulation and relate inter alia to conducting risk analyses as mandated by Article 29 of the European Border and Coast Guard Regulation7. Furthermore, the data contained in the documents forms part of a wider decision-making processes, which is not limited to “analysts’ decision-making processes”, as its evaluation, which must be free from external pressure8, flows into the constant adjustment of currently ongoing operational activities and those planned for the near future. For these operational decision-making processes, Frontex enjoys a wider margin of appreciation than in legislative procedures9. In reply to your argument: (…) it is important to note that the subject of my confirmatory application relates to a field of public policy making that has concerned EU citizens ever since we witnessed the first deaths at the EU's external borders. There is a growing demand from the public to know about the concrete role of Frontex in SAR operations – as evidenced by the multiple civil society initiatives and campaigns as well as the EU Parliament activities in this area. There is therefore no doubt that the matter is of public interest. What is more, the disclosure of this information is in the public interest as to enable citizens to effectively take part in shaping public policies and subject public bodies to scrutiny and oversight. In order to enjoy these rights, we, therefore need to know. In this regard, it is important to recall that Frontex has been criticised by the EU Ombudsman and the EU Parliament precisely because of its opacity. In sum, there is a specific overriding public interest in disclosure of the locations where rescue operations took place. it has to be recalled again that Article 4(3) of Regulation (EC) No 1049/2001 was and is applicable in addition to the different aspects of Article 4(1)(a) first indent of Regulation (EC) No 1049/2001- the latter being not subject to an overriding public interest test. As the existence of an overriding public interest is to be proven by an applicant10, neither does your intention to assess the requested data nor do your allegations however constitute such an overriding public interest.11 Nor are your general claims 7 Regulation (EU) 2019/1896 of 13 November 2019 on the European Border and Coast Guard (OJ L 259, 14.11.2019, p. 1). 8 Argumentum e contrario from Judgment of the General Court of 22 March 2018 in case T-540/15, De Capitani v European Parliament, para 105. 9 Following from the Judgment of 22 March 2011 in case T-233/09, Access Info Europe v Council, para. 76; also, argumentum e contrario from Judgment of 1 July 2008 in case C-39/05 P, Kingdom of Sweden and Maurizio Turco v Council of the European Union, para. 46. 10 Judgment of 2 October 2014 in case C-127/13 P, Strack v Commission, para. 128. 11 Judgment of 11 July 2018 in case T-643/13, Rogesa v Commission, para. 107. 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

that there existed a “growing demand from the public” satisfying that requirement12 able to override the interest protected by Article 4(3) of Regulation (EC) No 1049/2001. Consequently, Frontex cannot follow your arguments 1 to 3 and upholds the decision of 6 October 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. 12 Judgment of the General Court 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