When the New York Times revealed in April 2021 that European Commission president Ursula von der Leyen had been ‘exchanging text messages and calls’ with Pfizer CEO Albert Bourla on Covid-19 vaccines, this was presented as an interesting detail to the larger news – the European Commission had clinched a deal for 1.8 billion doses of the Pfizer/BioNTech Covid-19 vaccine. The newspaper described that ‘personal diplomacy played a big role in a deal’ but instead focused mostly on the unique deal itself.

However, Austrian investigative journalist Alexander Fanta was curious about the exact content of those text messages. A week after the Times article, he filed an access to documents request asking for any text messages between Von der Leyen and Bourla since the beginning of the year.

In its initial response and reply to Fanta’s subsequent appeal, the European Commission told him that it did not have any such documents in its possession.

Later that year, Der Spiegel revealed that the Commission had been automatically deleting several thousand emails every month. In that article, the issue of text messages was also addressed. The German weekly quoted the Commission’s secretary-general Ilze Juhansone saying that ‘the Commission record-keeping policy would in principle exclude instant messaging’.

This position raised questions in the ‘Brussels bubble’, especially among experts on the EU’s rules on access to documents. The European Ombudsman has opened an investigation into how EU institutions register text and instant messages, and in January, in a separate procedure, criticised the Commission’s handling of Fanta’s request.

Dutch Liberal MEP Sophie in ’t Veld asked the Commission to clarify Juhansone’s statement. She reminded the Commission of the definition of ‘document’ in the EU’s access to documents regulation: ‘any content, whatever its medium (written on paper or stored in electronic form [...]), concerning a matter relating to policies, activities and decisions falling within the institution’s sphere of responsibility’.

Texts are ‘short-lived and ephemeral’

In a surprising reply, Commission vice-president Věra Jourová argued that a text message could never be a document that would fall under the access rules.

‘Due to their short-lived and ephemeral nature, text and instant messages are not meant to contain important information relating to Commission policies, activities and decisions; they therefore neither qualify as a document subject to the Commission record-keeping policy nor do they fall within the scope of Regulation 1049/2001 on access to documents,’ wrote Jourová.

But an investigation by Follow the Money shows that the Commission’s record-keeping policy is not as clear to staff as Jourová makes it out to be.

In 2020, the policy was updated, and the amended rules are laid down in a document called the Commission Decision (EU) 2021/2121 of 6 July 2020 on records management and archives.

Another department lamented the fact that there was no method to preserve instant messages, suggesting that those media are in fact used

But before those rules were adopted, secretary-general Juhansone asked the Commission’s top officials to comment on a draft version, which she distributed on 10 January 2020. Follow the Money requested and received all documents that were a part of this so-called ‘interservice consultation’.

Those papers revealed that two Commission departments indicated that key definitions were missing to determine when something should be registered as an official document. One department described the rules as ‘vague’. 

Another department lamented the fact that there was no method to preserve instant messages, suggesting that unlike the Commission’s official line that ‘text and instant messages are not meant to contain important information relating to policies’, those media are in fact used for that purpose.

‘A bit vague’

A key article in the document describing the Commission’s record-keeping policy is the one that outlines when something should be registered as a document. Jourová quoted this article in her answer to MEP In ‘t Veld.

The draft wording of that rule was: ‘Records drawn up or received by a Commission department are registered when they contain important information that is not short-lived and/or may involve action or follow-up by the Commission or one of its departments.’

In a version of the draft document with ‘track changes’, the Commission’s Legal Service highlighted the word ‘short-lived’ and added the comment: ‘Is this term defined somewhere?’

The Directorate-General for Informatics (DG DIGIT) took aim at the phrase ‘important information’ and added: ‘It is vague a bit [sic]. What is important information? Who decides on what is important?’

There is no evidence that these questions were answered by Juhansone or her staff. The final decision slightly changed the wording of the article but did not define the phrases ‘short-lived’ or ‘important information’.

Follow the Money asked the Commission’s Spokesperson Service why the Secretariat-General had decided not to define further or clarify those phrases and whether the Secretariat-General had answered the specific questions from the Legal Service and DG DIGIT. The Commission chose not to comment.

Staff wants to save instant messages

The released documents also strongly suggested that among Commission staff, there is a desire to register instant messages. This goes directly against Jourová’s standpoint that instant messages ‘are not meant to contain important information relating to policies’.

In its feedback, the Directorate-General of Maritime Affairs and Fisheries (DG MARE) said that the draft policy document ‘does not entirely meet the needs to preserve native digital content’ and that there was ‘a big gap in what relates to Digital Preservation’.

‘The whole decision is based on the “document paradigm”. What is to be archived (a record) is either a digital document or a digitised paper document,’ DG MARE said. It added that the rules were not sufficient to manage all types of information as a record and expressed the hope that staff would at some point be able to insert ‘all types of data and information existing in different IT systems/applications’ into the official electronic repository.

‘Examples of information that we currently cannot record: software, data structured in a database, wiki content, task manager content (Jira), conversations using instant messaging applications (Skype, Slack).’

The last part of that paragraph strongly suggests that DG MARE staff are using Skype and Slack instant messaging applications and that these instant messaging conversations could be important enough to record.

No comment

The Commission did not want to explain how that apparent fact related to their official line that instant messages ‘are not meant to contain important information relating to Commission policies, activities and decisions’.

‘We do not comment on nor discuss the documents to which the Commission has granted access,’ a spokesperson said.

If that is indeed the Commission’s policy, it is either fairly recent or blatantly disregarded in other cases. As recently as September 2021, the Commission answered several of Follow the Money’s questions about an access to documents request and was willing to go on record.

On Thursday, 10 March, the European Parliament will debate transparency and the handling of public access requests.