The European Ombudsman has ruled that the European Border and Coast Guard Agency, Frontex, should reform its access to information arrangements following complaints about difficulties in obtaining information made by Drone Wars UK and German open government platform FragDenStaat.
The Ombudsman’s ruling follows a two year investigation which examined how Frontex deals with requests for public access to documents, and particularly requests submitted by email and through civil society access to information websites such as FragDenStaat and AskTheUK.org. At present Frontex only accepts communications through its own difficult-to-use communication portal and refuses to communicate by e-mail or third party information access websites – a complicated and unnecessary hurdle for anyone seeking information about the organisation.
As well as investigating the portal requirement and the ability to submit and to receive documents by e-mail the Ombudsman, Emily O’Reilly also inquired into concerns about restrictions imposed by the copyright of Frontex documents, long-term accessibility of documents through the portal, and Frontex’s requirement for those requesting information to submit personal identification and the lack of routes to allow this.
Drone Wars UK submitted an information request to Frontex in July 2020 as part of our ‘Crossing A Line‘ investigation, in which we highlighted the growing use of drones for border control operations and the threats to human rights which this poses.
A request for an interview about Frontex’s activities to the Frontex press office merely resulted in the response that that “Frontex is not currently using drones in its operations”. When we replied that we were surprised to hear that, as the Frontex website mentioned a number of cases in which drones had been used in the agency’s operations, we met with evasion and an eventual refusal to allow us to interview a Frontex spokesperson. Our subsequent formal request for information to Frontex under EU regulations on the right of access to documents, submitted through the AskTheEU.com website, was also obstructed and so we launched an appeal to the European Ombudsman. FragDenStaat made a similar complaint at around the same time and the two cases were jointly investigated by the Ombudsman.
In our representations to the Ombudsman we concluded that Frontex “could not have been more obstructive and unhelpful” in dealing with our request for information, and that Frontex “has made a conscious decision to conduct its affairs in an untransparent and unaccountable manner”. The requirement to restrict requests for information to the Frontex portal alone “would represent an unacceptable unilateral move by Frontex to defy standards of online accessibility which have been adopted without difficulty by other EU agencies”.
The Ombudsman agreed, stating that she had “not received convincing explanations” for the requirement to route requests for information through the Frontex portal, and was “most concerned about the vagueness of Frontex’s response”. She concluded that “a decision not to communicate any more with applicants by email does not reflect a general or best practice in the EU administration” and that “it is maladministration not to offer citizens the possibility of communicating with it by email in relation to their requests for public access to documents”.
Ms O’Reilly made the following recommendations:
- Frontex should ensure seamless technical communication with applicants for public access to documents, allowing them to communicate with it by email in full and without resorting to its current access to documents portal.
- In examining this recommendation, Frontex should inform itself of the best practices that the European Commission has identified in its current project to introduce a public access portal, and implement such best practices as soon as possible.
She also suggested that:
- Frontex should dedicate the resources that are needed for handling the predictably large number of access requests that it is likely to receive on a regular basis going forward.
- Frontex should draw up a detailed manual on how it handles public access requests, and publish that manual.
In another recent decision on access to information held by Frontex the European Ombudsman declared that Frontex should publish information about its confidential operational plans and information on forced returns of refugees, and that it should provide additional training to fundamental rights monitors
Frontex has been accused of having a “culture of secrecy” and its operations have been criticised by the International Commission of Jurists as “lacking accountability for human rights violations”.
A 2021 investigation by Human Rights Watch found that Frontex had repeatedly failed to take effective action when allegations of human rights violations were brought to its attention, and a special investigation by the European Parliament concluded that Frontex “has failed to protect asylum seekers’ rights”. Earlier this year investigations by a consortium of media organisations revealed that Frontex had been involved in dangerous and illegal ‘pushbacks’ in the Aegean Sea intended to force refugees back across the Greek border into Turkey without allowing them to apply for asylum, resulting in the subsequent resignation of Frontex’s Executive Director.
Given Frontex’s lack of regard for rights and transparency, it remains to be seen whether the agency will comply with the Ombudsman’s ruling in this case, but the decision nevertheless represents a small but important blow for accountability against a notably secretive, bureaucratic, and heartless part of the EU’s border control apparatus.