Last Wednesday, the European Commission (EC), in its response to a call from the EU Ombudsman, said that a search undertaken by the EC president’s cabinet for relevant text messages corresponding to a request for access to documents has "not yielded any results".
The EU watchdog said a full analysis of the EC response would be published in the coming weeks.
This case arose following a request to the Commission for access to documents by Brussels-based journalist, Alexander Fanta.
In April 2021, the New York Times published an article in which it reported that EC president and the Pfizer chief executive had exchanged texts related to the purchase of COVID-19 vaccines. This prompted Fanta to request public access to text messages and other documents relating to the exchange.
The Commission identified three documents as falling within the scope of the request - an email, a letter, and a press release - which were all released. The journalist turned to the Ombudsman as the EC had not identified any text messages.
EU Ombudsman, Emily O'Reilly, has criticized how the EC handled the journalist’s request.
An inquiry by the watchdog revealed that the bloc’s executive did not explicitly ask the president’s cabinet to look for text messages. Instead, it asked her cabinet to look for documents that fulfil the EC’s internal criteria for recording - text messages are not currently considered to meet these criteria.
In January this year, the EU Ombudsman determined that this amounted to maladministration.
“The narrow way in which this public access request was treated meant that no attempt was made to identify if any text messages existed. This falls short of reasonable expectations of transparency and administrative standards in the Commission.
“Not all text messages need to be recorded, but text messages clearly do fall under the EU transparency law and so relevant text messages should be recorded. It is not credible to claim otherwise," said O’Reilly.
She subsequently asked the EC to carry out a more extensive search for the relevant messages.
Content is king
The EC argues that text messages are “short-lived and ephemeral” so are not registered and not held by it.
But O'Reilly said that when it comes to the right of public access to EU documents, it is the content of the document that matters and not the device or form. "If text messages concern EU policies and decisions, they should be treated as EU documents. The EU administration needs to update its document recording practices to reflect this reality."
Access to EU documents is a fundamental right, and while this is a complex issue for many reasons, the Ombudsman said EU administrative practices should evolve and grow with the times and the methods currently used to communicate.
Access to EU documents
Regulation 1049/2001, which sets out the public’s right to access EU documents, defines a document as “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.”
The question whether text messages should be registered is being addressed in a separate ongoing strategic initiative on how EU institutions record text and instant messages sent/received by staff members in their professional capacity.
‘Record-keeping rules need fixing’
Echoing O'Reilly, several NGOs are calling on the Commission to strengthen the EU's transparency and record-keeping rules to ensure that they consistently apply to today's communication practices:
Ibrahim Bechrouri, digital campaigner at campaign group, SumOfUs, said: "Ursula von der Leyen must come clean about the negotiations with Pfizer. Anything less will fuel public mistrust of Covid-19 vaccines and of European institutions. The EU could have overpaid by billions and taxpayers deserve to be told the truth.”
Helen Darbishire, executive director of Access Info Europe, claims the Commission is using this case to set a permanent precedent for not providing text messages. “This raises real concerns about whether the EU’s 21-year-old access to documents rules are fit for the digital age. We need rules that deliver genuine transparency and accountability of the Commission, whose decisions directly affect the daily lives of European citizens.”