ECAS, a Brussels-based NGO, lodged a complaint with the Ombudsman about the Commission's refusal to give access to five documents, drafted by its services and concerning the UK opt-out from the EU Charter of Fundamental Rights. The Ombudsman response is that the Commission refused access to documents without giving valid reasons.

P. Nikiforos Diamandouros, the European Ombudsman, strongly criticised the European Commission's refusal to give access to five documents concerning its view of the UK opt-out from the EU Charter of Fundamental Rights. The Commission explained its refusal by referring to the need to protect both the legal advice it receives, as well as its internal decision-making process. After inspecting the documents in question, the Ombudsman concluded that the Commission's arguments for non-disclosure were not convincing. In September 2011, the European Ombudsman already called on the Commission to be more pro-active in transparency.

The opt-out was a major issue in the intergovernmental negotiations leading to the adoption of the Lisbon Treaty and the documents were prepared by the Commission in that context. The European Citizen Action Service (ECAS), a Brussels-based NGO, lodged a complaint with the Ombudsman about the Commission's refusal to give access to these five documents, drafted by its services and concerning the UK opt-out from the EU Charter of Fundamental Rights.

The Commission only gave partial access despite the Ombudsman's recommendation that it make the documents in question public. The Ombudsman concluded that the refusal constituted "a most serious instance of maladministration" because access to documents is itself one of the fundamental rights guaranteed by the Charter, and as the Commission failed substantively to engage with certain of his arguments.