The European Ombudsman, Emily O’Reilly, criticised the European Commission, on Friday 28 January, for refusing to give information to the press about text messages exchanged between its President, Ursula von der Leyen, and the CEO of Pfizer, Albert Bourla, about the purchase of anti-Covid-19 vaccines.
Ms O’Reilly asked that Ms von der Leyen’s office conduct a more thorough search for these messages and reveal their content, in accordance with the transparency rules applicable to EU documents.
Following an article in the New York Times in April 2021 which revealed the exchange of text messages between Ms von der Leyen and Mr Bourla, a journalist asked the Commission for access to these messages as well as other documents regarding these discussions.
The European institution agreed to send the journalist three documents (an email, a letter and a press release), but no text message. The Commission said it had no record of these messages, claiming that such messages are not intended to be retained and are not subject to the EU institutions’ 2001 rules on transparency.
Text 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”, it said.
For the Ombudsman, on the contrary, it is clear that the text messages “fall within the scope of the EU’s law on public access to documents” and the public can have access to them if they concern the work of the institution. Ms O’Reilly therefore calls on the Commission to evolve its document retention practices to take account of modern means of communication.
“No attempt has been made to identify whether the texts in question exist. This does not meet the expectations of transparency”, criticised Emily O’Reilly. If these messages are identified, the Commission will have to “assess whether they meet the criteria under EU access to documents legislation for disclosure”, it concluded in its recommendations.
“We will respond to the Ombudsman within the deadline and we will not comment further on the matter”, the Commission’s chief spokesman Eric Mamer told the press. The European institution must respond “by 26 April 2022 at the latest”, according to the European Ombudsman’s recommendations.
Should the Commission have kept the text messages in question? Mr Mamer clarified that the rules do not say that you have to keep this or that type of communication, but that you have to record documents regardless of the medium (physical or electronic) when they concern EU policies.
“This does not mean that every text message sent should be kept, because it has to be seen whether it is an exchange comparable to a telephone exchange or whether it is really a document”, Mr Mamer continued.
Revision of the rules? Furthermore, the Commission confirmed that the Vice-President for Transparency, Věra Jourová, wants to examine a “possible update” of the access to documents policy, as the means of communication change.
The regulation concerned is Regulation (EC) No 1049/2001 regarding public access to European Parliament, EU Council and Commission documents. It specifies that a document may be “written on paper or stored in electronic form, or a sound, visual or audiovisual recording”.
Link to the Ombudsman’s recommendations: https://bit.ly/3rWJDHu (Original version in French by Lionel Changeur)