European border agency improves transparency under EU watchdog’s pressure

[This piece is part of an investigative section called “For the Record”. The New Arab believes that public interest comes first and that publishing research findings, even if not conclusive, can inform future investigative efforts].

This investigation is co-published with Statewatch.

A year and half after the appointment of an ostensibly pro-transparency leadership at the European Border and Coast Guard agency (Frontex), improvements in the agency’s information disclosure practices are begrudgingly following suit.

The European Ombudsman (EO), the EU’s top accountability body, has received an increasing number of complaints against Frontex over its failures to comply with Freedom of Information (FOI) requests.

Our data analysis suggests that Frontex quietly ceased some of its FOI delaying practices after the Ombudsman denounced them in a decision in May 2023. In its internal correspondences with the EO, however, the border agency continued to try to justify these tactics, which the Ombudsman found “disheartening”.

The Ombudsman’s oversight role

The EU border agency has been marred with scandals over its coverup of and potential complicity in Greek violations of EU law, which are believed to have led its former director to resign in April 2022.

Frontex’ new director, Hans Leijtens, was quick to point out that the agency was aiming to “restore trust by being very transparent”, shortly after his appointment in December 2022.

But many researchers who are investigating Frontex’ role in EU law violations are now turning to the European Ombudsman to arbitrate the border agency’s failures to comply with the law.

The European Ombudsman is an independent body of the EU that helps uncover maladministration in its institutions. It has been headed by Emily O’Reilly since July 2013.

According to EU regulations, maladministration can include violations of the law, of the principles of good administration or of human rights.

The Ombudsman recently concluded an inquiry into Frontex’ role in the 2023 Pylos shipwreck.

The shipwreck was one of the deadliest migration tragedies in the Mediterranean since 2015, killing 82 people. More than 500 migrants - including about 100 children - are still missing.

The Ombudsman found that Frontex “demonstrated shortcomings” in how it reacts in maritime emergency situations.

‘Maladministration’

The EO tracks the number of recommendations it makes, and whether the EU bodies have accepted them. Its recommendations are non-binding.

From 2014 to 2021, Frontex always accepted the recommendations of the Ombudsman, based on data obtained by The New Arab (TNA) through a Freedom of Information request.

This trend ended in 2022, when the EU agency refused to implement the EO’s recommendation to allow communication about FOI requests over email.

FragDenStaat, a German NGO that provides a platform for submitting FOI requests online, had complained to the Ombudsman that Frontex’ insistence on not using email was detrimental to EU citizens’ right of access to documents.

Freedom of Information - also known as the right of access to documents - is enshrined in EU law as part of the Charter of Fundamental Rights, allowing citizens and residents of the EU to hold its institutions into account.

In an email to TNA, a spokesperson for the EU border agency clarified that it accepts all forms of incoming written communication, although it uses a custom application to respond to the public.

The Ombudsman disagreed with Frontex, and concluded that the agency had committed maladministration on 15 December 2022 - its first in relation to the right of access to documents.

Comments left on a draft of Frontex’ reply to the complaint, obtained by TNA through a Freedom of Information request, show that Frontex’ leadership at the time was in favour of fully complying with the Ombudsman’s proposals.

Kalnaja Aija, who was heading Frontex while the agency was looking for a new director, requested that the reply be restructured “in line with” the EO’s recommendations on 26 September 2022.

Nonetheless, that was not enough for the Ombudsman, which, in its final decision, said that it “could not find justifications” for Frontex’s refusal to accept requests by email.

Aija was later replaced by the agency’s current director, Hans Leijtens.

Systematic delays

While the maladministration decision was being handed, The New Arab revealed how another FOI practice by Frontex caused systematic delays to requests for access to documents.

Luděk Stavinoha, associate professor of media and international development at The University of East Anglia, told TNA back in December 2022 that Frontex had “a minimalist interpretation of their transparency obligations”.

Based on this interpretation, Frontex determined that it could pause or delay the registration of FOI requests through follow-up questions, which were often superfluous.

Using metadata from the requests submitted through FragDenStaat’s platform, TNA showed how almost a fifth of requests submitted to Frontex took over a week to be registered. A further fifth of requests were not even registered.

In comparison, the same data for the requests submitted to other EU bodies showed that the vast majority of them register all their FOI requests in less than a week.

The EU Ombudsman, who had opened an inquiry into these delaying practices, recommended that Frontex discontinue them on 30 May 2023.

Over the following six months, the EU top watchdog and Frontex engaged in multiple rounds of correspondence over these recommendations. 

In late September 2023, the EO also visited Frontex’ headquarters in Warsaw to “discuss with the executive director and his team the issues that are raised by citizens and others” about the border agency.

A few weeks later, on 14 December 2023, the European Parliament, the EU’s largest legislative body, passed a resolution supporting the Ombudsman’s recommendations and inviting Frontex to “take a more proactive approach to transparency”.

But Frontex’ executive director insisted on the need to continue its practices of delays, claiming that pausing requests actually serves the interests of the requester.

Ultimately, the Ombudsman decided to issue a second finding of maladministration, calling some of Frontex’ justifications for its practices disheartening.

A successful intervention nevertheless?

Looking at data from FragDenStaat, we find that Frontex has significantly cut down on its practice of delaying the registration of requests after the Ombudsman issued its recommendations on 30 May 2023.

We analysed 178 requests submitted between 22 January 2019 and 17 April 2024. 19% of requests submitted before 30 May 2023 took longer than seven days to be registered. Only about 5% of requests submitted after that date are delayed for that long.

The rate of requests that were never registered has also dropped from 17% to 9% after the EO issued its recommendations.

This suggests that, despite the rhetoric from Frontex’ leadership, the Ombudsman’s intervention was successful in bringing about a change in the EU agency’s FOI practices.

We shared these statistics with the EO, who declined to comment on them, while stating that they “welcome any steps taken by EU institutions and agencies to improve how they handle access to documents requests.”

A spokesperson for Frontex told TNA that, “taking into consideration the Ombudsman’s recommendation”, the agency has made an effort to make the FOI process easier and more transparent.

FOI experts we spoke with also noticed improvements in the way Frontex responds to requests for access to documents.

Lena Karamanidou, a researcher on borders and migration, told TNA that “recent applications [in 2024] were registered immediately: there were no delaying tactics such as asking for rather silly clarifications in the wording of applications, and [there was] more good faith negotiating when a FOIA was seen as too large.”

Karamanidou is the research & investigations coordinator at the Border Violence Monitoring Network (BVMN), a group of pro-migration NGOs that document human rights violations at Europe’s borders. In her role, she supervises requests for access to documents for the network at the national and EU levels. 

In her view, Frontex still has a long way to go to show it has changed its ways.

She gave the example of Frontex’ public register of documents, which “was presented as a flagship effort toward transparency and accountability” when it was launched in March 2022.

Each EU body is required by law to have a publicly accessible register of its documents. Frontex only created its register after a complaint was filed to the EU Ombudsman by UK-based pro-transparency NGO Statewatch.

“It’s extremely user-unfriendly!” exclaimed Karamanidou. “Documents on specific topics or concerning specific areas and operations are very difficult to locate through the search engine,” she added.

This complicates efforts to research Frontex’ activities and document its potential law violations.

Frustrated by the inadequacy of Frontex’ public register, FragDenStaat, the German pro-transparency NGO, created an alternative register of publicly available Frontex’ documents on 13 December 2022.

At its creation, this alternative register contained more than 4,000 documents. In comparison, as of 1 August 2024, some 18 months later, Frontex’ official register has only 2,625 documents.

To Karamanidou, despite the improvements, “the underlying logic remains the same.”

“Redactions and partial disclosures serve to protect the interests of Frontex and the member states,” she told TNA.

Therefore, without a genuine change of culture within the EU border agency, interventions from the Ombudsman might be the only way to ensure it complies with its legal obligations.