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Document access request goes to appeal as the EU Commission admits possible flaws in its Google investigation

Slide2By Simon Davies

The Privacy Surgeon today filed an appeal over the European Commission’s refusal to release documents related to its current investigation into Google.

Our request for documents – covering eighteen categories – was submitted in mid November. It sought data related to the Commission’s operational procedures and requested clarification of the conduct of its inquiry into Google.

EU Secretary-General Catherine Day will decide the Privacy Surgeon's public interest appeal

EU Secretary-General Catherine Day will decide the Privacy Surgeon’s public interest appeal

This action stemmed from a blog published on this site in October that raised questions about the Commissioner’s handling of privacy issues in the Google inquiry. The article pointed out that the competition commissioner appears to have ignored crucial data protection and privacy concerns, despite having signalled in public statements that privacy was relevant to competition considerations.

If successful, the appeal may have significant repercussions for freedom of information in Europe. Historically the Commission has been unwilling to accept public interest grounds for disclosure of documents relating to its investigative procedures.

The request was divided for administrative convenience into documents of a general nature and documents that are specific to the current Google inquiry into Google.

On November 28th the EU Director General for competition responded, setting out the grounds for the Commission’s refusal to disclose any documents relating to the current inquiry.

Consequently, the prevailing interest in this case lies in protecting the effectiveness of the Commission’s investigations, its decision-making process and the commercial interests of the undertakings concerned.

Importantly however, the Commission did concede that DG Competition does not have any specific documents that would provide guidance to the Commissioner on assessment and testing of data supplied by companies that are the subject of investigation.

Public trust would be fatally compromised if there were a perception that the Commission’s assessment of evidence and data was random and inconsistent

This worrying situation indicates that while guidance has been published for submission of data to an investigation, there are no measurable or consistent means of testing that data. My appeal noted that public trust “would be fatally compromised if there were a perception that the Commission’s assessment of evidence and data was random and inconsistent.”

In its response to the access request the Commission noted that the European Court of Justice had ruled that the Commission was within its rights to refuse disclosure unless there was an “overriding public interest”. My appeal is based on public interest grounds.

The three grounds set out in the appeal include one that asserts there is a public interest in clarifying the extent to which the Competition Commissioner has taken into account the importance and the value of Google’s key asset – personal data. There have been inconsistencies in the Commissioner’s own public statements on this point, raising questions about the validity and relevance of the current investigation.

The appeal also raised concern that Google was operating unlawfully in several EU states, including the Netherlands, France, Germany and Spain – the data protection authority of which today ruled Google in breach of Spanish law.