- All WhatsApp, Telegram, Signal, Viber or other digital text messages sent by Frontex staff or units involved in Frontex missions from Member States to the Libyan Coast Guard in 2020 and 2021 - All WhatsApp, Telegram, Signal, Viber or other digital text messages sent by the Libyan Coast Guard to Frontex staff or units involved in Frontex missions from Member States in 2020 and 2021. Your arguments in your confirmatory application are herewith noted: I would like to make a confirmatory application to your response to my document request, PAD- 2021-00279. In your response your office said that it has identified seven documents falling under the scope of my request. Access to four of these documents was refused, citing four different reasons that an exemption under Article 4(1)(a) first indent of Regulation 1049/2001 would apply, related to public security, as well as one exemption under Article 4(1)(b) of the same regulation, related to personal information. I appreciate that you've given such specific reasons for each of these exemptions. Still, I believe that Frontex has incorrectly applied these exemptions and withheld access to these four 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

documents that should indeed be released in response to request. I ask that you reconsider your decision and release them in full. Specifically, regarding your response to my document request: [Argument 1] First, it is well-established that the exceptions set out in Regulation 1049/2001 “must be interpreted and applied strictly" (Case C-60/15 P, para. 63). The "mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception" and "the risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical" (Case T-471/08, para 29). Furthermore, “the institution to which the request is addressed must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by the exception or exceptions relied on" (Case T‑210/15, para. 27). The response from your services does not meet these criteria. You have outlined specific elements of each document that do, in fact, relate to the cited exemptions, but rather made a bulk judgement of all four documents based on elements that are contained in each of them. These documents cannot be excluded in bulk from your transparency obligations, but must instead be subject to individual, case-by-case assessments, both regarding their form and their content. In that same vein, you have not demonstrated that the release of the documents in question “could specifically and actually undermine" the protected interests (I do not believe that it would) and there are no explanations as to how and why your services have reached their conclusions. It is thus impossible to determine whether those exceptions have been interpreted and applied strictly, as is required. [Argument 2] Second, you note that these documents are used for the development of risk analysis, and ¨thus constitute a specific form of internal decision-making processes,¨ and that the documents' release would ¨seriously undermine Frontex internal decision-making processes.¨ This logic is farcical: By definition, any information that Frontex deals can be used in a risk analysis. Thus trying to argue that any information used in a risk analysis constitutes a decisions making process and is therefore exempt under Article 4(3) would include literally every piece of information that Frontex touches and thus render Regulation 1049/2001 inoperable. This is clearly not the case. Beyond that, with in regards to your use of the Article 4(3) exemption, the same logic must be applied as the first section of this confirmatory application: Frontex has failed to argue why or how the disputed details are relevant to the agency's risk analyses, just that they form part of the creation of risk analyses. Furthermore, it must be stated that Frontex has surpassed the limits of the application of Article 4(3) of Regulation 1049/2001 in this case for another reason: The Regulation establishes that access to a document can be refused on the basis of this article when it “relates to a matter where the decision has not been taken by the institution," or if the document “contain[s] opinions for internal use as part of deliberations and preliminary consultations within the institution". Frontex's risk analyses do not fall under either of these definitions. On one hand, Frontex's risk analyses are not ¨decisions¨ taken, or to be taken, and therefore the details in dispute cannot be considered as “related to a matter where the decision has not yet been taken". The very process of risk analysis as understood by Frontex is rather an ongoing study and/or evaluation of the situation at the EU's borders; a process that culminates in conclusions and observations that may inform later decisions, but not on actual decisions themselves. The fact that an analysis could eventually contribute to a potential decision does not make the analysis a decision-making process per se within the framework of Regulation 1049/2001. 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

On the other hand, the details in dispute are facts or (at the very most) factual descriptions of events, which certainly do not constitute “opinions for internal use". Therefore the document in dispute and its contents do not fall under the definition of “decision- making process" as provided in Article 4(3) of Regulation 1049/2001, and cannot be refused on the basis of this article. [Argument 3] Third, your service has made no real consideration for a partial release of these documents. You argue that partial release is impossible because it the redaction of these documents ¨would be disproportionate in relation to the parts that are eligible for disclosure¨ and that the ¨administrative burden¨ of redacting these four documents would be too great, considering the information that would be left over. I note that Article 4(6) of the Regulation states that ¨If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released,¨ and there is no part of Regulation 1049/2001 that gives Frontex, in this case, the responsibility for determining whether or not a document would have any particular value or use after being redacted. Given the amount of completely redacted documents I have received from your office over the years, this logic does not hold up. Similarly, no part of Regulation 1049/2001 gives Frontex discretion to decide whether properly redacting documents and, thus, fulfilling your responsibility under this regulation, would constitute an administrative burden. Also, let's remember that we're talking about four documents here; this logic, too, is faulty. To this end, I ask that you reconsider the possibility of at least partially releasing the four documents in question. It's worth noting as well that, while the three documents you did release as part of this request were also heavily redacted, they do include information that is of great use. [Argument 4] Fourth, your response fails to provide any explicit consideration of the prospect of an overriding public interest, as contemplated throughout Article 4 of Regulation 1049/2001. You do state at one point that:¨ As no overriding public interest that is objective and general in nature and not indistinguishable from individual or private interests for the release of this information is ascertainable in the present case, the documents cannot be released based on Article 4(3) of Regulation (EC) No 1049/2001.¨ But I believe that this consideration was not done in earnest and ignores the facts of the case at hand: As I've stated to your office multiple times, I am a professional journalist actively involved in newsgathering. I am currently working on an investigation as relates to the contents of this request, parts of which will be published in the public sphere. There is a need for the widest possible public scrutiny, debate and understanding regarding the issues concerning this request, particularly when considering they involve documents that specifically contradict public statements by Frontex employees, including the agency's Executive Director. Let us remember that Frontex has long held that the agency has no direct operational contact with the Libyan Coast Guard, and yet you've just sent me evidence of otherwise. If a contradiction of this magnitude does not constitute an overriding public interest, then I'm not sure what does. While disclosure might be inconvenient or problematic for Frontex from a public relations standpoint, I believe that there is indeed an overriding public interest in disclosure of the documents requested, and that such disclosure follows both the letter and spirit of European Union transparency regulations. It is for all these reasons that I submit this confirmatory application and ask that you revisit your decision in PAD-2021-00279. Per your responsibility under Article 7(1) of Regulation 1049/2001, I ask that you not delay registration of this request, as your office has done for all but one the requests I've filed this year. There is no reason it should take a week to register a request and no part of the Regulation that allows for delayed registration due to your ¨consulting with the responsible units¨ - that should be included in the 15-day response period. 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 Frontex notes that your confirmatory application is directed to the fact that Frontex had to refuse access to four out of the seven documents identified as part of your application PAD-2021-00297, for which you request “I ask that you reconsider your decision and release them in full”. Before addressing your arguments individually, Frontex recalls that as explained in the reply of 11 October 2021, the reference to internal decision-making process is an element in addition to the other five elements indicated in the said reply, i.e. reporting tools and methods used by law enforcement officials, Frontex’ technical equipment, human resources, and details crucial for situational awareness, as well as personal data. 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 2 determining whether such disclosure to the public would undermine the interests protected by that provision. In the reply of 11 October 2021, Frontex provided ample information to allow you “to understand the reasons why access to the information requested”3 contained in the documents was refused. Frontex thus stresses again, 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 human resources deployed in the operational area, types of the deployed assets, and tools and methods applied by law enforcement officials in the 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 the current and in future operations or to inflict harm on officials and                     assets. 4 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 5 the documents “and thereby depriving the exception of its very purpose” , the reasons provided on 11 October 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. As a consequence, Frontex had to invoke these exceptions in regard to Article 4(1)(a) first indent of Regulation (EC) No 1049/2001 within the wide discretion accorded to Frontex for the application of that exception.6 It shall be also recalled that if Frontex, as it did and explained on 11 October 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, it is to be stressed again, that with regard to the four documents, further to the exceptions under Article 4(1)(a) first indent and Article 4(1)(b) of Regulation (EC) No 1049/2001, Article 4(3) of Regulation (EC) No 1049/2001 was and is applicable. 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

Your Argument (1) regarding the explanations in regard to the protection of public security In your Argument 1 you allege that Frontex failed to conduct a case-by-case assessment of each of the documents, while the non-disclosed content would only relate to the protected public interest, without foreseeably endangering it in case of disclosure. However, the specific reasons for non-disclosure and the foreseeably detrimental effect to the attainment of Frontex’ operational objectives were explained to you in our reply of 11 October 2021 and also in the “Preliminary considerations” above. As in all cases and as evidenced by the three documents that were made available to you as part of the reply to your application PAD-2020-00279, in which certain elements had to be redacted, also the four documents that were deemed non-releasable were individually assessed and all pieces of the content of these documents – similar to the four documents that could be released - appraised in light of Regulation (EC) No 1049/2001. It is thus how the decision not to disclose these documents was taken by considering how the release of specific pieces of information contained in each of the document would reasonably foreseeable and not purely hypothetically – seriously - undermine the interests protected in Articles 4(1)(a), (b) and (3) of Regulation (EC) No 1049/2001. Like in all applications, including your previous ones, to which you refer, also in this case no global assessment was conducted but the specific content of each of the four documents was examined as evidenced in the three documents that could be partially released. I thus uphold the decision in reply to your application PAD-2021-00279 in this regard. Your Arguments (2) and (4) regarding the existence of an internal decision-making process and alleging the existence of an overriding public interest In your Argument 2, you indicate that “any information held by Frontex can be used in a risk analysis”. However, as explained to you on 11 October 2021 and under “Preliminary considerations” above, in this particular case Article 4(3) of Regulation (EC) No 1049/2001 had to be invoked in addition to Article 4(1)(a) first indent and (b) of that Regulation. It has to be recalled that in the context at hand, i.e. risk analysis as mandated in Article 29 of the European Border and Coast Guard Regulation7, Frontex has a wider margin of appreciation than in legislative decision-making processes8. Furthermore, the documents form part of wider decision-making processes as their evaluations flow into the constant adjustment of currently ongoing operational activities and those planned for the near future. Repeating again, that as exception has to be seen in conjunction with the absolute exceptions under Article 4(1)(a) first indent and (b) of Regulation (EC) No 1049/2001 as explained above, the release of the documents would hamper the ability of all stakeholders to (re-)adjust all operational activities and thus deprive them of their respective “space to think”.9 In reply to your Argument 4 regarding the allegedly overriding public interest in disclosure of the documents, please note that such test does not form part of the assessment under Article 4(1)(a) fist 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 Contrast judgment of 22 March 2011 in case T-233/09, Access Info Europe v Council, para. 76.; also argumentum e contrario from Judgment of the Court of Justice of 1 July 2008 in case C-39/05 P, Kingdom of Sweden and Maurizio Turco v Council of the European Union, para. 46. 9 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. 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 and (b) of Regulation (EC) No 1049/2001. Nevertheless, Frontex examines your arguments in regard to the overriding public interest under Article 4(3) of Regulation (EC) No 1049/2001, in which you bring forward: As I've stated to your office multiple times, I am a professional journalist actively involved in newsgathering. I am currently working on an investigation as relates to the contents of this request, parts of which will be published in the public sphere. There is a need for the widest possible public scrutiny, debate and understanding regarding the issues concerning this request, particularly when considering they involve documents that specifically contradict public statements by Frontex employees, including the agency's Executive Director. Let us remember that Frontex has long held that the agency has no direct operational contact with the Libyan Coast Guard, and yet you've just sent me evidence of otherwise. If a contradiction of this magnitude does not constitute an overriding public interest, then I'm not sure what does. While disclosure might be inconvenient or problematic for Frontex from a public relations standpoint, I believe that there is indeed an overriding public interest in disclosure of the documents requested, and that such disclosure follows both the letter and spirit of European Union transparency regulations. Frontex has to emphasize again that as not acting in a legislative context and a high threshold to prove the existence of an overriding public interest exists10, which has to be proven by the applicant11. Your intention to assess the content of the documents and your observations do not, however, constitute such an overriding public interest.12 Nor do your general considerations regarding the “need for the widest possible public scrutiny, debate and understanding” satisfy that requirement.13 In sum, the decision of 11 October 2021 also concerning this element must be upheld. Your Argument (3) regarding the possibility of a partial release of the documents In your Argument 3 you claim that “there is no part of Regulation 1049/2001 that gives Frontex, in this case, the responsibility for determining whether or not a document would have any particular value or use after being redacted” and that “no part of Regulation 1049/2001 gives Frontex discretion to decide whether properly redacting documents and, thus, fulfilling your responsibility under this regulation, would constitute an administrative burden.” However, the conditions for granting partial 14 access to documents are determined by the principles of proportionality and sound                          administration . Therefore, in balancing all interests, the applicability of the absolute exceptions as well as the exception under Article 4(3) of Regulation (EC) No 1049/2001 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 four documents led us, while balancing 10 Judgment of the Court of Justice of 14 November 2013 in case C-514/11 P and C-605/11 P, LPN and Finland v Commission, para. 93. 11 Judgment of the Court of Justice of 2 October 2014 in case C-127/13 P, Strack v Commission, para. 128. 12 Judgment of the General Court of 11 July 2018 in case T-643/13, Rogesa v Commission, para. 107. 13 Judgment of the General Court of 9 October 2018 in case T-634/17, Pint v Commission, para. 56. 14 Judgment of 27 November 2019 in case T-31/18, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), para 47; Judgment of the Court of Justice of 2 October 2014 in case C-127/13 P, Strack v Commission, para. 27. 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

all interests 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”    15 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”16. Therefore, and as already stated in our reply of 11 October 2021, no partial access within the meaning of Article 4(6) of Regulation (EC) No 1049/2001 is possible. In sum, Frontex upholds the decision of 11 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. 15 Applicable also for Regulation (EC) No 1049/2001: Judgment of 7 February 2002 in case T-211/00, Kuijer v Council, para. 57. 16 Judgment of 5 December 2018 in case T-875/16, Falcon Technologies v Commission, paras. 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