In June 2008, Ciarán Toland, an Irish lawyer, applied to the European Parliament for access to the 2006 Annual Report of its Internal Audit Service (Report No 07/01), including the 16 audit reports referred to in paragraph 24 of the European Parliament Resolution of 22 April 2008 (para. 3). The Report is an annual audit of the Parliamentary Assistance Allowance given to members of the European Parliament each year, including information regarding the operation of the Allowance and its abuses by members of Parliament. In March 2008, the Bureau of the European Parliament carried out a series of reforms to implement recommendations contained in the Report, but the European Parliament voted to keep the report confidential.
The Secretary-General of the Parliament granted Toland partial access to Report No 07/01, redacting one paragraph dealing with an audit still pending (para. 4). Nevertheless, the reply did not mention the other 16 requested reports (para. 4). Toland submitted a second request for those reports, including the redacted paragraph of Report No 07/01 (para. 5).
By letter dated 11 August 2008 (the “Contested Decision”), the Parliament denied access to the redacted paragraph, granted full access to 13 of the 16 internal audit reports, partial access to two further internal audit reports, and denied access to the fourteenth of those reports, namely Internal Audit Report No 06/02 of 9 January 2008 entitled “Audit of the Parliamentary Assistance Allowance” (Report No 06/02) (para 6). Parliament viewed the Allowance as a “sensitive matter” and argued that disclosure of Report No 06/02 was not required because disclosure might compromise the report’s effective use and purpose (under Article 4(2) of Regulation 1049/2001) and that disclosure would be detrimental to Parliament’s decision-making process under Article 4(3) of Regulation 1049/2001 and compromise reform (para. 9-12).
The Applicant initiated proceedings against the Parliament in the General Court of the European Union and the Governments of Sweden, Finland and Denmark intervened in his favor.
The Court noted that, for purposes of the Article 4(2) and Article 4(3) exceptions to disclosure, Parliament would have had to determine that (i) access to a requested document would specifically and actually undermine the protected interest and that there is no overriding public interest justifying disclosure of the document concerned, and (ii) the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical (para. 29).
Article 4(2) provides that institutions shall refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits unless there is an overriding public interest in disclosure (para. 42). The Court ruled that it would have been appropriate to ascertain whether, at the time of the adoption of the Contested Decision, inspections and investigations were still in progress which could have been jeopardized by the disclosure of the requested documents, and whether those activities were carried out within a reasonable period. Instead, Parliament’s decision would have withheld documents until a given “follow-up action to be taken has been decided,” which is improper because that would make access to documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of various authorities (para. 45). Thus, this exception did not apply because the Contested Decision made no mention of any specific inspection or investigation or of any other administrative checks ongoing at the time of the decision that might have jeopardized implementation of the actions recommended in Report No 06/02 (para. 58). The Court found no need to examine the “overriding public interest” prong of Article 4(2) (para. 58).
Article 4(3) provides that access to a document drawn up by an institution for internal use or received by an institution relating to a matter concerning which a decision has not yet been made shall be refused if disclosure would seriously undermine the decision-making process, unless there is an overriding public interest in disclosure (para. 69). This exception requires it to be established that access to the document in question drawn up by the institution for its internal use in question was likely, specifically and actually to undermine the interest protected by the exception, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical (para. 70). In addition, disclosure must risk seriously undermining the decision-making process (para. 72). Though the audit report was drawn up by Parliament for internal use and related to an issue on which the institution had not yet taken any decision, the Court determined that disclosure of Report No 06/02 would not seriously undermine its decision-making process (paras. 72-78). The Contested Decision made no mention of the existence, on the date on which it was adopted, of any acts undermining, or attempting to undermine, the ongoing decision-making process, or of objective reasons on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if Report No 06/02 were disclosed (para. 79). Further, the Contested Decision failed to contain any reasoning regarding whether an overriding public interest did not, despite everything, call for disclosure of that report (para. 83). In finding that the Parliament had improperly withheld access to Report No 06/02, the Court awarded costs to Toland.
Judgment of the Court.