Commission criticised for withholding information on UK internet surveillance

The European Ombudsman has published its draft recommendations in a case concerning the European Commission's refusal to grant a German journalist access to documents in its possession relating to "the surveillance of the internet by UK state agencies", including GCHQ.

The Commission identified an exchange of letters between former EU justice commissioner Viviane Reding and former UK foreign secretary William Hague on the issue, as well as a letter from the Director-General of the Commission's Directorate-General (DG) Justice to the UK Permanent Representative to the EU that were relevant to the request. Further correspondence the Commission held from citizens asking it to investigate UK surveillance practices was also identified as being relevant to the request.

However, the Commission refused to disclose the documents to the German journalist claiming that it would interfere with its ongoing investigation into whether the UK's surveillance operations breach EU citizens' rights. It identified particular concerns with whether disclosure of Hague's letter to Reding would undermine trust and affect dialogue between the Commission and the UK.

The German journalist challenged the Commission's decision to withhold the information he had requested. He questioned why the Commission withheld Hague's letter to Reding as the UK government had given its permission for it to be disclosed, and said it was wrong for the Commission to claim that its ongoing investigation precluded disclosure of the documents the Commission had received from third parties.

After examining the case, the Ombudsman said the Commission should disclose Hague's letter to Reding. The watchdog said it was "at a loss to understand" how the Commission could argue that "disclosure could negatively impact on the atmosphere of confidence between itself and the [UK]" if the UK had sanctioned disclosure of the letter.

The Ombudsman also criticised the Commission for failing to adequately assess whether there was an overriding public interest in disclosing the remaining documents sought by the German journalist. It said the Commission should "grant access to all the other documents requested by the [journalist] ... or properly justify why, in its view, disclosure has to be refused".

The European Ombudsman investigates complaints and maladministration by EU bodies and institutions but its decisions are not legally binding. The watchdog has no power to issue sanctions but instead offers an alternative dispute resolution process to court proceedings to those seeking redress and seeks to deliver that through compromise.