Text messages (SMS, WhatsApp messages etc.) have become a widespread means of communications, often replacing e-mail altogether. This is true for private individuals as well as for government officials. It is well known how important text messages were for Angela Merkel. Whether this is is also the case with her successor is not yet known. The President of the EU Commission, Ursula von der Leyen, also uses text messages intensively. For example, she communicated in this way with Pfizer CEO Albert Bourla during contract negotiations on the procurement of vaccines. The question arises whether and under what conditions such text messages should be accessible to EU citizens, especially since the contracts between the Commission and the vaccine manufacturers, which were disclosed after lengthy discussions, are only blackened and accessible without central information, for example on the liability of the manufacturers.
The research portal netzpolitik.org has so far failed with its attempt to gain access to the Commission President’s text messages <https://netzpolitik.org/2021/informationsfreiheit-von-der-leyen-verweigert-auskunft-ueber-angebliche-sms-zu-milliardendeal-mit-pfizer/> (in German). The European Ombudswoman Emily O’Reilly is currently investigating this refusal at the request of netzpolitik.org. From her report, it appears that the Commission refuses to disclose such short messages on astonishing grounds. The Commission refers to its decision of 6.7.2020 on transaction management and archiving of documents. There, Article 7(1) states, “Documents shall be registered if they contain important information that is not short-lived or if they may involve an action or follow-up of the Commission or one of its departments.” The Commission contends that text messages are generally ephemeral (“short-lived”) and do not contain important information. Therefore, its administration does not have the technical means to easily (“push a button”) register or archive text messages. Such an “archive button” apparently exists for e-mails. On the same grounds, the Commission’s Vice-President, Vera Jourova, has now answered negatively to a question from the European Parliament on whether short messages from Commissioners could be disclosed. The Ombudswoman has pointed out that access can only be requested to those documents of the Commission or other EU institutions that are also kept (registered, stored) there. More recently the Ombudswoman has criticized the attitude of the Commission and urged her to search for text messsages which have not been registered (https://www.ombudsman.europa.eu/en/press-release/en/151740). Even more recently, Ms. Jourova had said she wanted to have guidelines developed that would reflect modern communications behavior and include criteria for when messages should be considered documents and stored.
The background is a years-long dispute between the European Parliament, on the one hand, and the Commission and the Member States, on the other, over a much-needed modernization of the 2001 EU Regulation on public access to documents of the European Parliament, the Council and the Commission. While the parliamentarians are pushing for more transparency, the Commission and the Council (the representatives of the Member States) not only want to prevent this, but rather to lower the level of transparency in the 2001 Regulation again. This stalemate continues unchanged. It would therefore be a good thing if the Commission were now to extend the transparency rules, at least for its own area, to the means of communication that are now predominant. However, this does not seem to be the case.
The Commission’s blanket refusal to make its President’s short messages available to the public violates both the 2001 Transparency Regulation and its 2020 Decision, to which the Commission itself refers. Moreover, this attitude violates European primary law, in particular the European Charter of Fundamental Rights.
The 2001 Transparency Regulation opens access to documents of the EU institutions, including the Commission, to any citizen of the Union. According to this regulation, a “document” is any “content whatever its medium (written on paper or stored in electronic form, or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities or decisions falling within the institution’s sphere of responsibility.” The 2020 Commission Decision is intended to enable the Commission to comply with the transparency obligations under the Regulation (Recitals 5 u. 6). It is true that Art. 7 No. 1 limits the obligation to register documents (and thus also the possibility of disclosure), on the one hand, to those documents that contain important information and are not short-lived. The Transparency Regulation does not provide for such a restriction. In addition, however – and this has been overlooked by the Commission so far – all documents (regardless of their content) that may relate to an action or follow-up of the Commission or one of its departments must be registered. Undoubtedly, this broad definition applies to a large number of the short communications that the President and members of the Commission send or receive on a daily basis. Most importantly, however, the Commission’s dismissive attitude contradicts Article 15(1) of the Treaty on the Functioning of the European Union, according to which the Union’s institutions, bodies, offices and agencies shall act with the greatest possible respect for the principle of openness in order to promote good administration and ensure the participation of civil society. Finally, the European Charter of Fundamental Rights, in Article 42, guarantees to all persons residing in the EU the right of access to documents held by the institutions, bodies, offices and agencies of the Union, whatever the medium used for those documents.
Of course, short messages may also contain information that must be kept secret. However, this must be assessed on a case-by-case basis and does not justify a blanket exclusion of access to short messages.
In this context, however, a more fundamental question arises that goes beyond the secrecy of short messages. If government action is increasingly reflected not only in paper documents or mails but also in short messages, it must be asked who decides whether and in what form they are kept and possibly archived. This question already arose in 2019, when it became known that the cell phone data of former Defense Minister von der Leyen had been deleted at the latest after she left office and could not be used to clarify the consultant affair. It is clear that members of the government who are provided with an official cell phone are not allowed to decide for themselves what to do with messages sent or received with this device (unless they are of a private nature). Governments as well as the European Commission must ensure that the official communications of their members are traceable and that corresponding messages are independently reviewed to determine whether they are possibly worthy of archiving, because they make government actions traceable not only for the public but also for contemporary historical research. In the modern communication age, the necessary transparency of government action would be significantly reduced if government officials were able to decide uncontrollably which messages they keep secret or delete because they consider them “short-lived” and “unimportant”.