In 2018 Arne Semsrott and Luisa lzuzquiza, information transparency activists, decided to take The European Border and Coast Guard Agency, commonly known as Frontex, to court. Semsrott and lzuzquiza had been requesting information from the EU agency since 2016. The rejected request that eventually went to court was for documents related to their vessels in the Mediterranean. The court sided with Frontex though, and found their refusal to disclose information on public security grounds to be legitimate.
Frontex had gotten their way, but they were not content with just keeping their information opaque, they also wanted to put others off trying the same and sent the activists a bill for their legal costs. A €23,700 ($25,000) bill which reportedly covered nights spent in a Hilton hotel and flights to Paris, whose inclusion could not be explained. The activists refused to pay until eventually a court forced them to do so, but only after reducing the bill to €10,500 ($11,000). Semsrott told The New Arab that there was a “clear strategy to threaten us to not do that ever again”.
Semsrott and lzuzquiza both work at FragDenStaat, an information transparency campaigning group that runs a platform to submit Freedom Of Information Requests (FOIs) to both German and EU institutions. This portal increases information transparency in three ways: It makes the process easier for ordinary citizens, makes any information retrieved more accessible, and keeps a public record of the communication between FOI requesters and institutions.
The New Arab’s investigative unit has analysed data from FragDenStaat and has found that Frontex systematically bends the rules to draw out the length of time taken for requests. The border agency’s tactics result in discouraging EU citizens from pursuing FOIs.
Covering up human rights violations
According to the UN Commissioner for Human Rights, a “pushback” constitutes any action taken by a state that “result(s) in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement”. According to such principle, any country receiving a person into their borders must not send them back to a place where they would face danger. Pushbacks are also often in violation of the European Convention on Human Rights..
States -- such as the UK -- refusing people fleeing genocidal regimes was one of the great tragedies of the Second World War, and although it is beginning to leave the European collective consciousness, it is since then that the rights of refugees to not be sent back to persecution and violence has been a fundamental principle of international law.
In April 2022 Frontex Executive Director Fabrice Leggeri resigned from his position after seven years at the helm of the agency. This came after a series of scandals, starting in 2020 with the reported covering up of pushbacks the Greek Coast Guard were responsible for, followed by a critical audit report published by the European Court of Auditors in June 2021, and an investigation by the European Anti-Fraud Office (OLAF) launched in in January 2021 and concluded in February 2022. It has been reported that Leggeri was forced to resign because of the findings of this investigation. The European Commission’s official statement did not explain the reasons behind his departure.
The OLAF's investigation was kept from the public until it was leaked and then published in a collaborative effort by FragDenStaat, Der Spiegel, and Lighthouse Reports. It revealed systematic covering up of human rights abuses and deliberate actions to turn a blind eye to pushbacks. For example, "the withdrawing [sic] of aerial surveillance served the purpose for FRONTEX to avoid witnessing incidents and alleged pushbacks by Greece, so avoiding to have to deal internally at the Agency with sensitive cases."
The leaked report also revealed that Frontex had been hiding information from the European Commission. This lack of transparency is familiar to those who have attempted to exercise their rights as European citizens and sought documents under FOIs.
How Frontex thwarts FOI requests
Luděk Stavinoha, associate professor of media and international development at The University of East Anglia, experienced Frontex's lack of transparency when, in the course of his research, he submitted multiple FOI requests. Like many others before him, Stavinoha found the experience of dealing with the agency’s Transparency Office extremely frustrating.
"The Transparency Office has managed to create this really tight, clever, web around the institution where you need to be very knowledgeable of the case law and of the technicalities, of your rights, to be able to push back, and very few people have the time and the skills," Stavinoha told The New Arab.
Unlike the average citizen, the media scholar had the time and legal understanding to not be overwhelmed by the barrage of clarifications and legal jargon thrown back at him by Frontex.
After persisting through ten requests, Stavinoha noticed a pattern in how Frontex reportedly dances around the obligations of the EU’s FOI Regulation: They extend how long they have to handle requests by putting off 'registering' them, which they frequently do by asking people to clarify the terms of their queries. Frontex will then often apply the 'fair solution procedure' and claim that too many documents are being demanded and suggest that the request is split up. Once the request has been registered, Frontex will then habitually extend the amount of time that they have to respond, something that is meant to only be done in exceptional circumstances
"The Transparency Office has managed to create this really tight, clever, web around the institution where you need to be very knowledgeable of the case law and of the technicalities, of your rights, to be able to push back, and very few people have the time and the skills."
As a result of complaints filed by Stavinoha and other FOI requesters, in July 2022 the European Ombudsman launched an own-initiative inquiry into Frontex's handling of FOI requests, which is still ongoing. The Ombudsman undertakes such inquiries to “uncover whether there are systemic issues giving rise” to a problem in question. While their conclusions are not binding on the institution under investigation, they help identify cases of maladministration and offer suggestions for potential solutions.
After analysing data from FragDenStaat, The New Arab has found that Stavinoha's experience was shared by many of the people who submitted requests through the website.
The following data is from FOIs submitted through FragDenStaat.de, and is therefore only a portion of the total requests received by Frontex and other institutions. The EU agencies sampled for this investigation and their total number of requests received, between 19 January 2019 and 2 November 2022, were: European Medicines Agency (42), European Commission (242), European Parliament (301), Council of the EU (46), European External Action Service (36), and Frontex (155). In total, The New Arab analysed data from 822 FOIs.
22% of FOIs sent to Frontex are not complete within 15 working days of being registered. While this may sound like a high proportion, it actually puts them way ahead of other EU institutions, such as the European Medicines Agency (52%), the European Parliament (62%), and the European Commission (75%).
These figures can be misleading though. While other EU institutions automatically register requests within one working day of receiving them, Frontex has a "somewhat idiosyncratic gap," said Stavinoha. The data shows that Frontex took over a week to register 18.7% of the requests that they had received. All but one of the other EU agencies sampled had zero instances of a request taking over a week to register -- the exception being the European Medicines Agency (EMA) for whom the percentage was 7%.
Not only do almost a fifth of requests to Frontex take over a week to register, but a further 18% of requesters give up before it even happens.
The outcome of this can be seen in the average length of time, and amount of back and forth communication that happens, between a request being submitted and completed -- documents supplied, denied, or the requester gives up. In fact, successful requests to Frontex took the longest, averaging 99 days.
The main method Frontex uses to delay registration is asking requesters follow-up questions, such as: clarifying terms that they have used, narrowing down the scope of the request, or getting them to describe the contents of news articles that have been linked (a common practice in FOIs to provide context for what is being discussed), as they refuse to "open third-party links".
For all other sampled institutions the average number of messages sent to requesters pre-registration was one, while Frontex averaged five.
Frontex is the sole EU agency that only accepts FOI requests through their own web portal, this means that only the person who has submitted the request can see the messages and -- if they are successful -- the documents that Frontex responds with. Not only does this massively reduce transparency, it also gives Frontex all the power.
"It differs from email in one very important aspect and that is that they have full control over who can access it and what can be seen there. We know of instances where they have replied to something and then they have changed their own response afterwards. Which wouldn't be possible with emails of course," FragDenStaat Director Arne Semsrott told The New Arab.
Frontex launched its portal in January 2020. Seven months later FragDenStaat lodged a complaint with the European Ombudsman which, in June 2022, recommended that Frontex respond to requests via email. The EU border agency refused to comply and, on December 14, the Ombudsman concluded that this was a case of maladministration.
Not only do almost a fifth of requests to Frontex take over a week to register, but a further 18% of requesters give up before it even happens.
The Ombudsman's final assessment conceded that Frontex had implemented some other recommendations: "With regard to the Ombudsman’s other suggestions, Frontex stated that it had recently assigned an additional half-time post to the handling of requests for public access to documents, and announced that it will draw up a manual as suggested by the Ombudsman. Earlier in the inquiry, Frontex implemented the Ombudsman’s proposals to revise its copyright statement and to make documents in its public access accounts available for two years. It also agreed to introduce a dedicated email address for submission of appeals."
The New Arab's analysis of FOI requests sent to Frontex was only possible thanks to members of FragDenStaat's tech team, who have developed a machine learning program that automatically completes the captcha required to log in to the portal. With this, anyone who has filed a request with Frontex through FragDenStaat is able to click an option which automatically downloads all the correspondence and documents from the portal, making it public for all to see.
They want you to ‘suffer’ for using your fundamental rights
Luděk Stavinoha describes Frontex as having "a minimalist interpretation of their transparency obligations. Whatever they can find within the case law, they use it to restrict the rights of the applicant, to narrow the range of documents that fall within a request, rather than taking a maximalist approach or let's say a common sense approach which is, this person is clearly interested in this topic, let's provide all the documents."
Part of this minimalist approach, which also helps them delay registering queries, is asking requesters to clarify things that many people would deem clear.
For example,a request filed earlier this year by The New Arab's investigation unit on AskTheEu -- a site similar to FragDenStaat -- had an acronym in the title; FAR. It stands for 'Frontex Application for Returns', and is often used by Frontex themselves. The acronym is actually explained in the body of the request, but using it in the title meant that Frontex could not supposedly understand what was being requested and asked for clarification before registering.
Luděk Stavinoha once used the phrase "all documents including but not limited to," before listing common forms of communication -- emails, texts, etc. This kind of wording is extremely common in freedom of information requests, and does not cause confusion for most agencies.
Frontex asked him to clarify what he meant by "including but not limited to," which he understandably found frustrating. "They use that to come back to me and say to me can you clarify ... as if I'm in a position to list all categories of documents that might fall within the scope of that request,” said Stavinoha.
After Frontex executive director’s recent resignation, Luisa lzuzquiza from FragDenStaat requested: “All letters, emails and/or documents of any containing Fabrice Leggeri’s resignation." Frontex’s Transparency Office was unable to parse this, so they asked Izuzquiza to clarify if she actually meant: “All letters, emails and/or documents of containing Fabrice Leggeri’s resignation."
Now that #Frontex Executive Director Fabrice Leggeri has left the EU agency, could the Frontex "transparency" team please leave as well? They are bullies.— FragDenStaat.de (@fragdenstaat) May 10, 2022
Here's an example. This is what you get when you request documents from the agency: pic.twitter.com/g5lKcDjxug
In the requests addressed to Frontex, the tone invariably becomes frustrated. "The general idea is that if you request something from Frontex they will try to make it hurt, they really want you to suffer for using your fundamental right, and you can see that at every stage of the process," said Arne Semsrott, the director of FragDenStaat.
The effect of Frontex's approach to FOIs is that less information gets out into the public. Requests taking more time and more effort means that human rights groups use up more of their resources, journalists are less likely to pursue a story, and ordinary citizens are unlikely to get anywhere at all with a request.
Frontex has a problem with transparency, as has been proven by the OLAF investigation, and the way that they handle FOI requests is part of the architecture they've created to shield the agency from public scrutiny.