The complainant sought public access from the European Commission to text messages and other documents concerning discussions between the Commission President and the CEO of a pharmaceutical company on the purchase of COVID 19 vaccines. The Commission said it could not provide access to any text messages, as no record had been kept of any such messages.
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In the context of the Ombudsman’s inquiry, it emerged that the Commission does not consider that text messages generally fall under its internal criteria for document recording, due to the short-lived’ nature of their content. In dealing with the request, it had asked the Commission President’s personal office (cabinet) to identify only documents that fulfil its recording criteria. As such, the Commission President’s personal office was not required to identify any text messages, and the Commission therefore did not assess whether such messages should be disclosed.
The Ombudsman considers that this constituted maladministration. To address this, she made a recommendation that the Commission ask the Commission President’s personal office to search again for relevant text messages, making it clear that the search should not be limited to registered documents or documents that fulfil its recording criteria. If any text messages are subsequently identified, the Commission should assess whether the complainant can be granted public access to them.
The European Commission's refusal of public access to text messages exchanged between the Commission President and the CEO of a pharmaceutical company on the purchase of a COVID-19 vaccine.
Failure to look for messages amounted to ‘maladministration,’ ombudsman says. EU watchdog raps Commission over von der Leyen’s texts with Pfizer boss.
An EU watchdog has criticized the European Commission for failing to search for text messages between its president, Ursula von der Leyen, and the CEO of pharmaceutical giant Pfizer, Albert Bourla.
The messages were requested by journalist Alexander Fanta of news site netzpolitik.org after they were mentioned in a New York Times article last April about the EU's coronavirus vaccine procurement efforts.
An inquiry by European Ombudsman Emily O’Reilly found that the Commission had not asked von der Leyen's office to search for text messages, despite Fanta specifically requesting them. Instead, it asked for items that meet the Commission's criteria for recording "documents" — a definition that does not include text messages.
O'Reilly, whose job is to hold EU institutions to account, said the Commission's handling of the request 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,” she said in a statement. “This falls short of reasonable expectations of transparency and administrative standards in the Commission.”
The case has highlighted a growing debate over how EU institutions handle officials’ text messages — in particular when the texts include information on key policy decisions.
The New York Times article noted that the Commission chief was "exchanging texts and calls" with Bourla for a month and that "personal diplomacy played a big role" in a deal to purchase 1.8 billion doses of vaccine. But in response to Fanta’s request, the Commission said it did not hold documents beyond an email, a letter and a press release on the subject.
During the ombudsman’s inquiry, the Commission argued that a “text message or another type of instant messaging is by its nature a short-lived document which does not contain in principle important information concerning matters relating to policies, activities and decisions of the Commission” and that “the Commission record-keeping policy would in principle exclude instant messaging.”
The Commission also told the ombudsman’s team that “to date, it has not recorded any text messages in its document management system.”
O’Reilly, however, rejected the Commission's argument, noting that the EU’s law on public access to documents states that the definition of a document is “any content whatever its medium … concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.”
O’Reilly — who is also in the midst of a broader examination of how institutions handle text and instant messages — said that “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.”
