Are the mobile messages of a ruler public documents? The European Ombudsman believes that they can be

Are the SMS messages of the President of the European Commission private and can she delete them? Everyone? Also those that have to do with the negotiation of a millionaire contract between Ursula von der Leyen and the pharmaceutical company Pfizer in the midst of the coronavirus pandemic? Why yes SMS or WhatsApp or Telegram or Signal but not emails or postal letters in the middle of 2022?

According to the Community Executive, in response to a formal journalistic request through transparency, they are private and there is no obligation to register them. According to an investigation by the European Ombudsman, Emily O’Reilly, known this Friday, they can be considered “public documents”, for which she asks for an update of the community rules.

The case arose in April 2021, when The New York Times published an article in which it reported that the president of the European Commission and the CEO of Pfizer had exchanged text messages and calls related to the purchase of vaccines. against COVID-19, and that “this personal diplomacy [había] played an important role in the agreement, which will be finalized [esa] week, in which [UE] 1.8 billion doses will be guaranteed (…)”. On May 4, 2021, the German journalist Alexander Fanta of netzpolitik.orgasked the European Commission for public access to “text messages and other documents related to the exchange between [la presidenta de la Comisión] Y [el CEO]”from Pfizer.

Following that request, the Commission identified three documents in response to the complainant’s request: an email, a letter, and a press release. On May 28, 2021, the complainant asked the Commission to review his decision (filing a “confirmatory request”) because the Commission had not identified any text messages. And a few weeks later, in July, the Community Executive said that it had carried out an exhaustive search and confirmed that it did not have any additional documents that correspond to the request for access by the complainant, who went to the Ombudsman.

Criticism of the Ombudsman

And what has the European Ombudsman responded? Well, Emily O’Reilly has responded this Friday, after an investigation, with criticism of how the European Commission has managed the request for public access to text messages between its president and the CEO of Pfizer.

Among other matters, the Ombudsman regrets that the European Commission said that no record of the text messages related to the purchase of vaccines against COVID-19 had been kept. And, at the same time, she criticizes that the European Commission did not even explicitly ask von der Leyen’s cabinet to look for the text messages. Instead, she did ask her office to search for documents that met the Commission’s internal search criteria. In other words, it is not considered that the text messages from the phone of the president of the European Commission with the CEO of Pfizer to negotiate a million dollar contract meet these criteria.

For O’Reilly it is an example of maladministration: “The limits with which this request for public access was treated show that no attempt was made to identify if there was any text message, which does not meet reasonable expectations of transparency and administrative standards in the European Commission. Not all text messages need to be saved and recorded, but they are clearly subject to European transparency law and therefore the relevant text messages must be recorded. It is not credible to claim otherwise.”

The Ombudsman insists: “When it comes to the right of public access to EU documents, what matters is the content of the document and not the device or the form. If the text messages refer to policies and decisions of the EU, they should be treated as EU documents. The EU administration needs to update its document registration practices to reflect this reality.”

And adds O’Reilly: “Access to EU documents is a fundamental right. While it is a complex issue for many reasons, EU administrative practices should evolve in line with the times we live in and the methods we we use to communicate.

Thus, the Ombudsman has asked the European Commission to ask the cabinet of President Von der Leyen to look again for the relevant text messages. If any text message is identified, the European Commission must assess whether it meets the criteria, under the EU access to documents law, to be published.

Now, the Community Executive has 90 days to answer O’Reilly’s request, as the spokesman for the European Commission, Eric Mamer, recalled this Friday.


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