Dear "Transparency Team", since I know that you have given out the SIRs to other people I would suggest we do a two-step procedure: I would propose that you just send to me all the SIRs since July 2019 that you have sent to other people in response to their 1049/2001 requests. I suppose that this is not a lot of work since you have already checked all the information. In the second step you can send me all the remaining documents, if there are any. Yours sincerely, Arne Semsrott Anfragenr: 203580 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203580/ Postanschrift Arne Semsrott << Adresse entfernt >>

Dear Frontex, Please forward this to the person responsible for reviewing confirmatory applications. On 13 November 2020 I filed an access to documents request asking for: “All Serious Incident Reports (SIRs) filed between July 2019 and now” The request and all subsequent information can be found at https://fragdenstaat.de/anfrage/sirs-si… The request was formulated in a sufficiently precise manner, and there is no suggestion to the contrary. Frontex answered in two batches and registered the second part of my request on 21 January 2021. On 4 March 2021, by letter with reference TO/PAD-2020-0027, Frontex granted partial access to 19 documents and identified 26 documents falling under the scope of my request, denying access to 12 of them under Article 4(2) second indent, denying access to 12 of them under Article 4(2) third indent of Regulation (EC) No 1049/2001 and denying access to these 24 documents as well as to two additional documents under nine reasons that Frontex referred to in an attached legend. Out of these nine reasons, though, two were referring to ongoing investigations and ongoing court proceedings which were already mentioned by Frontex in its main letter. Grounds of Objection: I consider that Frontex’s refusal to provide access to the documents requested is misconceived, for the following reasons. Ground 1. Frontex’s claim that investigations would be hampered is unlawful Frontex vaguely invokes Article 4(2) third indent of Regulation (EC) No 1049/2001 in relation to 12 documents in order to protect “the purpose of investigations”. Frontex has not stated which “investigations” have to be protected and why releasing serious incident reports would harm the protection of investigations. Frontex is required, in accordance with the established case law of the CJEU, to explain how disclosure would “specifically and actually” cause harm to one of the interests listed under Article 4 of Regulation 1049/2001. By failing to provide any information at all regarding the investigations Frontex claims to be protecting, the agency is failing to comply with its transparency obligations. Furthermore, it’s worth recalling that Frontex must demonstrate, upon refusing access to documents, how the purported risk to investigations is “foreseeable and not purely hypothetical”. Given that it has failed even to particularise the nature of the purported risk or the investigations affected by the risk, Frontex’s response cannot be considered to reach the threshold of “foreseeable and not purely hypothetical”. Ground 2. Frontex’s claim that court proceedings have to be protected is unlawful Frontex vaguely claims to invoke Article 4(2) second indent of Regulation (EC) No 1049/2001 in relation to 12 documents in order to protect “court proceedings”. Once again, Frontex has not stated which “court proceedings” precisely would be undermined and why releasing serious incident reports would harm the protection of court proceedings. At the time of writing, there are no court proceedings before the Courts of the European Union that concern the requested documents,and Frontex has failed to establish whether the application of this exception refers to a case involving courts at a Member State level and, if so, which. For this reason, Frontex has yet again failed to comply with EU case law whereby the agency must explain how disclosure would “specifically and actually” harm the protected interest. In its response letter, Frontex has also failed to explain how the purported risk to court proceedings is “foreseeable and not purely hypothetical”. Ground 3. Frontex’s claim that public security would be endangered is unlawful Frontex vaguely claims that information from the documents cannot be released under Article 4(1)(a) first indent of Regulation (EC) No 1049/2001 for five reasons, namely the protection of “sensitive operational information”, the protection of “number and type of technical equipment”, the protection of “operational areas of the Joint Operations”, the protection of “number and profile of human resources” and protection of “reporting tools and methods used by law enforcement officials”. To this extent,, Frontex only broadly claims that the information would “hamper the effectiveness of Frontex operations and jeopardise the efforts carried out by the European Union and Member States to curtail criminal activities at the external borders”, without actually explaining how, or demonstrating that this chain of events is not purely hypothetical. Therefore once again, Frontex is failing to comply with the established case law of the CJEU which requires the agency to explain how the purported risk to public security would “specifically and actually” take place, and why this risk is “foreseeable and not purely hypothetical”. Part of Frontex’s refusal relies on the assertion that the documents requested “refer to details of the operational area". Notwithstanding that Frontex fails to identify the nature of the relevant “details” to which it refers, detailed information relating to Frontex’s operational area is in fact already in the public domain. By way of example, a publicly available note dated 05/11/2020 from the Frontex Management Board meeting on 10 November 2020 (Reference: BMD/GRP-2018-00017/899751/2020) contains explanations and graphics with specific information relating to the Frontex “operational theatre”. It follows that mere disclosure of the requested documents would not “undermine the protection of the public interest as regards public security” as alleged. Frontex also alleges that the documents requested contain detailed information related to reporting tools and methods used by law enforcement officials to conduct border control tasks and counter criminal activities. According to Frontex, its disclosure would jeopardize the implementation of ongoing and future operations, and thus facilitate irregular migration and trafficking in human beings as the effectiveness of law enforcement measures would be significantly reduced.” Frontex’s reliance upon the alleged risk posed to public security as a result of disclosure of documents relating to “reporting tools” is ill-founded. First, Frontex uses the term “reporting tools” vaguely without specifying the nature of the “reporting tools” to which it refers. Second and in any event, Frontex fails to adequately explain how disclosure of these “reporting tools” would in fact jeopardize future operations (and, by extension, public security). It merely makes an assertion to that effect. It must be recalled that Frontex is under a legal obligation to make public comprehensive information regarding its ongoing operations 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.” It follows that Frontex is not entitled to refuse access to information simply because “In sum, they relate to ongoing operations”. The terms of Article 114(2) indicate that the mere fact that requested documents may relate to “ongoing operations” does not relieve the agency from its transparency obligations. Rather, Frontex is required to make public the relevant information without revealing sensitive details “which would jeopardise attainment of the objectives of operations”, i.e. provided that it can justify the refusal of relevant information on the basis of the exceptions provided in Article 4 of Regulation 1049/2001 and in compliance with EU case law. Ground 4. Frontex’s claim that internal decision-making would be hampered is unlawful Frontex vaguely claims that information from the documents cannot be released under 4(3) of Regulation (EC) No 1049/2001 as it would hamper Frontex’s internal decision making process. Frontex refers both to its risk analyses which allegedly “constitute a specific form of internal decision-making processes” and to “ongoing discussions taking place within Frontex and within its auspices”. The Regulation’s 1049/2001 explicit goal is to improve the transparency of the decision-making process. In this spirit, the Court of Justice of the European Union has held that the preliminary nature of documents that relate to a decision-making process does not in itself justify the application of the exception laid down in Article 4(3) of Regulation 1049/2001. The Court has also held that the fact that no agreement has yet been reached on the issues being debated does not therefore establish that the decision-making process is undermined by disclosure. To this regard, Frontex’s broad claim that the requested documents relate to unspecified “discussions” and its “risk analysis” does not offer substantial proof as to how the decision-making process would be seriously and foreseeably undermined. It follows that, in absence of such proof, Frontex’s argument that disclosure would “erode the mutual trust among the participants” remains purely hypothetical and unfounded, especially because Frontex has not even stated which discussions the documents relate to and who is participating in these negotiations. Ground 5. Frontex’s claim that personal data have to be protected is unlawful Frontex claims that personal data “and/or characteristic features which could lead to the identification of individuals” from the documents cannot be released under 4(1)(b) of Regulation (EC) No 1049/2001. While protection of personal data of persons filing serious incident reports may be useful, personal data of Frontex officials mentioned in the reports and further communication are to be disclosed. There is a clear public interest in disclosing who has worked on these cases. Ground 6. 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.” The proposition that the release of the totality or even a substantial part of the 26 documents requested would undermine court proceedings or investigations is not sustainable. Partial disclosure must therefore be considered, consistently with the provisions of Article 4(6) of Regulation 1049/2001 and the principle of widest possible access. Frontex alleges that partial access cannot be granted to the requested documents “as their redaction would be disproportional in relation to the parts that are eligible for disclosure, simultaneously undermining the principle of sound administration.”. This is inconsistent with the terms of Article 4(6), which provides that the scope of disclosure is determined with reference to the exceptions laid out in Article 4, rather than a test of proportionality. Ground 7. There is a clear public interest in the disclosure of the requested documents Frontex alleges that “the administrative burden necessary to identify and redact the releasable materials would be disproportionate to the public interest in the disclosure exercise itself.” That assertion is false. The documents requested are likely to contain important information on fundamental rights violations that are essential to assess whether Frontex took part in pushbacks or observed them. The discussion over the invocation of Article 46 of the Frontex regulation can only be assessed properly with all information that are available. Media reports over Frontex’ involvement in fundamental rights violations have sprung up since last summer. There have been regular calls for the Frontex Executive Director to resign over allegations of fundamental rights violations. The European Parliament has set up a Frontex scrutiny committee over the allegations. A great public interest is therefore undeniable when it comes to the release of the requested documents. Ground 8. Comparable Information is online Hundreds of serious incident reports are already disclosed and online. Thus, comparable information is already accessible. Ground 9. Frontex is not allowed to prohibit the sharing of these documents Frontex stated that “the copyright of the document/s rests with Frontex and making this/these work/s, available to third parties in this or another form without prior authorisation of Frontex is prohibited.” As an EU agency, Frontex does not have legal grounds to claim copyright and does not hold the power to prohibit the use of information under 1049/2001. The documents do not reach the threshold of originality. Its contents were not created by Frontex themselves. Frontex has to retract the “prohibition” as well as its copyright claim. For these reasons, I consider that Frontex is legally obligated to provide the requested documents. Please don’t hesitate to contact me if you have any doubts or questions in regards to this confirmatory application. Sincerely, Arne Semsrott Anfragenr: 203580 Antwort an: <<E-Mail-Adresse>> Laden Sie große Dateien zu dieser Anfrage hier hoch: https://fragdenstaat.de/a/203580/ Postanschrift Arne Semsrott << Adresse entfernt >>