Blog Post

EU authorities should cough up UK surveillance documents, says ombudsman

The European Commission should disclose documents relating to the U.K.’s mass online surveillance activities, European ombudsman Emily O’Reilly has said.

The draft recommendation follows a complaint made last year by a German journalist, who asked the Commission for access to documents relating to British activities exposed by NSA whistleblower Edward Snowden. The documents included correspondence between the justice commissioner at the time, Viviane Reding, and the British foreign secretary at the time, William Hague, as well as a letter from Reding’s office to the U.K.’s permanent representative to the E.U., and letters from citizens to the Commission asking for the espionage to be investigated.

Snowden’s revelations exposed a great deal about the tactics of GCHQ, the U.K.’s equivalent to the NSA, from using criminal-style methods to attack activists to manipulating what people see online to tapping core internet connections around the world.

The Commission tried to argue that Hague’s letter to Reding was from a third party, so disclosure would therefore require that party’s permission. The U.K. authorities did actually agree to the disclosure of this letter, a large chunk of which was a publicly available speech given by Hague in the U.K. parliament — but the Commission refused to disclose the letter anyway.

As for the other documents, the Commission said it could avoid disclosure because the letters’ exposure may undermine an ongoing investigation. However, public interest is supposed to provide an override in such cases, and the Commission based its claim on the idea that public interest was not sufficiently high this time around.

O’Reilly examined the relevant documents and agreed that the letters sent by the Commission “were covered by the general presumption that disclosure could potentially undermine the protection of the purpose of its investigations.” However, she pointed out, the complaining journalist was right to say that “millions of EU citizens were possibly affected, and the underlying issue had led to a wide-spread political and international debate on this topic.”

In other words, vaguely saying there’s insufficient public interest doesn’t cut it in this case. So O’Reilly recommended that the Commission should definitely grant the journalist access to Hague’s letter, and should also grant access to the other documents unless it can come up with a good reason not to.

The Commission now has until the end of this year to come up with a “detailed opinion” on the matter, hopefully explaining that it’s accepted the recommendation and detailing how it has implemented it.