EGAN & HACKETT V. EUROPEAN PARLIAMENT, 28.3.2012 (“EGAN & HACKETT”)

Access: Exercise of the right to access cannot be systematically denied on the basis of privacy violations without analyzing the specific circumstances. (¶¶ 89-94)

Moreover, the examination required for the processing of a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception. In principle, such an application can be justified only if the institution has previously determined that access to the document would specifically and actually undermine the protected interest. Second, the risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical (Toland v Parliament, paragraph 29). That examination must be apparent from the reasons for the decision (Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69; Franchet and Byk v Commission, paragraph 115; and Toland v Parliament, paragraph 29).

Therefore, if the Parliament decides to refuse access to a document which it has been asked to disclose, it must explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4(1)(b) of Regulation No 1049/2001 (see, to that effect, Sweden and Turco v Council, paragraph 49).

Such an explanation cannot therefore consist of a mere assertion that access to certain documents would undermine privacy within the meaning of Article 4(1)(b) of Regulation No 1049/2001.

In the present case, it must be noted that in the fourth, fifth and sixth paragraphs of the contested decision, the Parliament justifies its refusal to grant the applicants access to the documents containing the names of the persons whose identity they seek to establish only in very general terms. In particular, the Parliament does not explain why, as it states in the fourth paragraph, the names that the applicants seek ‘constitute personal data, disclosure of which would infringe the privacy interests of the individuals concerned, under the terms of Regulation … No 45/2001 and Article 4(1)(b) of Regulation … No 1049/2001’, or why ‘[r]egarding the registers of … assistants’ financial interests …, by virtue of Regulations … No 45/2001 and … No 1049/2001, documents containing personal data of former MEP assistants are not subject to public disclosure’.

In this way, the Parliament systematically took the view that the public should not have access to documents revealing the identity of former MEP assistants and it did not carry out an examination to show that that access would specifically and effectively undermine their privacy within the meaning of the provisions in question, nor did it verify whether the risk of the protected interest being undermined was reasonably foreseeable and not purely hypothetical.

Likewise, by simply relying on the provisions and rules mentioned at paragraph 83 above, the Parliament fails to show to what extent the disclosure of documents containing the names of former MEP assistants would specifically and effectively undermine their right to privacy.