19 January 2017

Recent case law concerning access to documents - January 2017  

The limits as to when access to documents should be granted are clarified on a current basis. We have reviewed recent case law concerning access to documents and have summarised all relevant statements within the municipal areas below, including business information, identification requirement and data extraction.

THE PARLIAMENTARY OMBUDSMAN: BID ON DONG SHARES WAS BUSINESS INFORMATION, SECTION 30, NO. 2 OF THE ACT ON PUBLIC ACCESS TO DOCUMENTS IN PUBLIC FILES

After having considered a complaint in the so-called "DONG case", the Parliamentary Ombudsman stated that the new act on public access to documents in public files has made it more difficult to obtain access to business information.

In connection with the sale of DONG's shares in 2013, the Ministry of Finance turned down a journalist's request for access to the bids made. The journalist complained to the Ombudsman, who found that the ministry was entitled to reject the request referring to the protection of DONG's business information.

It appears from section 30, no. 2 of the act that the provision is to protect business interests. The legislative history behind the act does not specify in detail how to interpret  information on "technical devices or processes or on business or operating procedures or the like". The Ombudsman stated that it was impossible to determine exhaustively reasonably which information is covered by this expression.

Under section 30, no. 2 of the act, it is a condition for exempting business information from the access to documents that disclosure of the information will involve an obvious risk that the company will suffer a substantial financial loss.  This wording corresponds to section 12 (1), no. 2 of the former act, but it appears from the legislative history behind the new act that "a clear assumption" now applies that disclosure of the information will result in an obvious risk that the company or the person involved will suffer substantial damage.

If a company indicates that disclosure of information will result in specific damage, the rule of assumption implies that the authority will not need any further documentation that the conditions for restricting the access to documents have been met. The Ombudsman stated in this respect that, after having obtained such a statement, the authority will not necessarily have the correct assumption to assess whether the risk is real or not.

The Ombudsman stated that "the legislative history behind the new act implies that the authorities are given increased possibilities of keeping business information secret and, consequently, section 30, no. 2 of the act has been materially changed. For instance in the DONG case". In a report to the Legal Affairs Committee of the Danish Parliament, the Ombudsman stated that the above "may  have significant impact on the right to access to documents".

THE STATE ADMINISTRATION: REQUEST FOR ACCESS TO DOCUMENTS MET THE REQUIREMENT FOR IDENTIFICATION, SECTION 9 (1) OF THE ACT ON PUBLIC ACCESS TO DOCUMENTS IN PUBLIC FILES

A journalist brought the South Denmark Region's decision of 5 September 2016 before the State Administration. The region had turned down the journalist's request for access to documents, which the region had previously disclosed to named media concerning the ambulance company BIOS. The rejection was based on the requirement for identification.

The region stated that a request for access to documents must contain all information required in order to identify the documents to which access is requested (requirement for identification). In addition, the request must state the theme, to which the case or document relates. The requirement for identification appears from section 9 (1), nos. 1 and 2 of the act.

If a request does not meet this requirement, the authority may reject the request. If the requirement is met, but the request is very comprehensive - for instance due to a lack of distinctness - the authority may reject the request if the processing will require disproportionate resources, cf. section 9 (2), no. 1 of the act.

In the specific case, the journalist had requested access to specific correspondence on which a specific article was based. The State Administration assessed that region was not entitled to reject the request referring to lack of identification.

The State Administration attached special importance to the fact that access had been requested to specific documents, to which DR Fyn and Fyens Stiftstidende had previously obtained access according to a request.

On this basis, the State Administration request the region to resume the matter and make a new decision in accordance with the claimant's request and the rules of the act.

THE STATE ADMINISTRATION: REJECTION OF ACCESS TO DOCUMENTS TO A MUNICIPALITY'S TOTAL EXPENSES TO A NAMED CONSULTING FIRM - QUESTION CONCERNING DATA EXTRACTION, SECTION 11 OF THE ACT ON PUBLIC ACCESS TO DOCUMENTS IN PUBLIC FILES

On 16 August 2016, the Municipality of Esbjerg decided to reject access to a statement of the municipality's total expenses to a consulting firm.

In general, the right to access to documents only covers existing documents, and the requesting party is therefore not entitled to claim that the relevant authority prepares new documents.

This view is modified by section 11 of the act: An authority may be obligated to prepare and disclose a composition of present information from the authority's data base if this composition is possible by a few and simple commands.

In this specific case, the claimant has requested access to a statement of the municipality's expenses to a named consulting firm. The municipality granted the claimant access to the underlying expenditure vouchers as the municipality found that this would met the request in full.

The State Administration attached importance to the fact that the municipality was not in possession of a statement of the relevant expenses. Generally, the municipality would therefore be entitled to reject the request referring to section 7 (1) of the act.

But it did not appear whether the municipality would be able to met the request by way of data extraction of a composition of the existing information on expenses in the municipality's data base by way of a few and simple commands, cf. section 11 (1) of the act. On this basis, the State Administration requested the municipality to resume the matter and make a new decision in accordance with the act.

THE STATE ADMINISTRATION: REJECTION OF ACCESS TO DOCUMENTS CONCERNING STAFFING OF A MEDICAL EMERGENCY VEHICLE - PROTECTION OF PUBLIC FINANCIAL INTERESTS, SECTION 33, NO. 3 OF THE ACT ON PUBLIC ACCESS TO DOCUMENTS IN PUBLIC FILES

The State Administration was requested to assess the South Denmark Region's decision of 8 June 2016, which rejected access to documents concerning the staffing of a medical emergency vehicle in Skærbæk on 10 May 2016, including any downtime.

The reason for the region's rejection was that disclosure of the information would inflict a substantial financial loss on the company, cf. section 30, no. 2 of the act.

Further, the region stated that disclosure of the information would have negative impact on the retaining and recruiting of staff, which would make it difficult for the company to perform the contract with the region. Lack of performance would result in a claim for a large penalty, which would again cause substantial financial harm to the company.

The State Administration found that the request was specifically limited to information on the staffing of one medical emergency vehicle in one area for 24 hours, and the region had therefore not sufficiently specified the financial harm. Based on the reason stated, the region was not entitled to exempt the information under section 30, no. 2 of the act.

Further, the region had referred to section 33, no. 3 of the act when exempting the information. This provision concerns situations where the right to access may be limited to the extent that this is required in order to protect material public financial interests, including interests relating to public commercial activities. A condition for exemption of information under this provision is that there is an obvious risk of damage to the interests at hand, see the special comments to the provision.

The State Administration found that, in order to apply this provision, there must be specific proof of the risk of a financial loss if access is granted. Only information, which is not common knowledge or available to the public, is covered by the provision. The State Administration found that the region had not sufficiently accounted for the financial harm or any impairment of the region's negotiating position.

It was therefore the State Administration's opinion that the region was not entitled either to exempt the information under section 33,o. 3 of the act.

The State Administration requested the region to resume the matter and make a new decision in accordance with the act.

THE STATE ADMINISTRATION: REJECTION OF ACCESS TO MINUTES OF MEETING - THE SPECIAL NATURE OF THE MATTER, SECTION 33, NO. 5 OF THE ACT ON PUBLIC ACCESS TO DOCUMENTS IN PUBLIC FILES

The State Administration was requested to assess Region Zealand's decision of 11 May 2016, which rejected access to minutes of a meeting held between the residential centre Lindegården and the group management of Psykiatrien Øst.

In the decision, the region referred to section 33, no. 5 of the act making it possible to limit a request for access to documents if required to keep the information secret in order to safeguard important considerations in respect of public or private interests, where the special nature of the matter means that secrecy is required.  It appears from the special comments to the provision that its scope is narrow and applied only in situations where secrecy is clearly required in consideration of public and private interests.

First of all, the provision is to safeguard interests to be protected, which as such are recognised in the other exemption provisions of the act, but where the explicit provisions appear to be insufficient.

In the rejection, the region referred to the fact that the minutes in question, which were not part of a specific staff matter, contained information of such nature that the need for protection was to be considered based on private law  considerations. It was therefore the understanding of the State Administration that the region referred to the considerations behind section 21 (2) of the act, which make it possible to exempt cases concerning an individual's employment.

The State Administration found that the region had not acted contrary to section 33, no. 5 of the act by exempting the minutes. Special importance was attached to the fact that the minutes contained information on an individual's employment.

This was balancing was consistent with the legislative history of section 21 (2) of the act, which refers to information on an employee's situation. Consequently, section 33, no. 5 of the act could not be applied as the correct authority for rejecting the request for access.

It was the State Administration's opinion that the region had made a relevant assessment within the framework of the authority applied.

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