frsrdg · GM04JO1 · 1999-01-01 00:00:00 — The regulations in Chapter 2 of the Freedom of the Press Act enjoin every public authority to allow individuals access in certain ways and subject to certain restrictions to the authoritys public documents. However, printed works and the like forming part of the collection of a library cannot be regarded as public documents (11.3.1). Once again, there is nothing to be found on which an individual could base a claim to be allowed access to any item whatsoever in the collection of a public library. In 1.9 of the Instrument of Government, administrative agencies and other agencies involved in public administration are enjoined to pay regard to the equality of all individuals before the law and to observe objectivity and impartiality in discharging their obligations. This provision demands that in the application of laws, ordinances and other legal regulations, citizens are to be treated objectively, impartially and even-handedly. In the Local Government Act (1991:900) Article 2.2 stipulates that communes and county councils are to treat their inhabitants impartially, unless there are valid reasons for not doing so. In my opinion, the principles of objectivity and impartial treatment apply in situations where a public library is dealing with a request from an indivi-dual to be allowed access to a printed work that forms part of the librarys collection or for an inter-library loan. In this context, it would be acceptable to establish a principle denying children or young people access to some types of works. Similarly, it would be acceptable for a library to restrict public access to some books in its collection, or to refuse to arrange inter-library loans, or to arrange such loans only for those involved in research. In the same way it is, of course, totally acceptable for a library not to buy works of a certain type. On the other hand, I cannot find it acceptable to differentiate between adult borrowers so that available works are only provided to those who can show that they have the "correct" opinions or that they are well enough informed about certain subjects. do I consider it acceptable to base the decision whether or not to arrange an inter-library loan on such differentiation. In the rejoinder, the Chief Librarian admits that the staff asked V. his purpose for requesting the loan when he asked for two works by . The reason is that the library staff are "vigilant where anti-Semitic works are concerned". What this means in practice is not, however, explained. In the rejoinder, all that is said is that the public library did not on any occasion prevent V. from borrowing any books. It is implied that in its actions the library was vague or that misunderstanding had arisen. The librarys rejoinder is contradicted by the contents of a letter signed by the Chief Librarian and one of the staff on 9 1996. This states that library policy forms the basis of its actions and its reluctance on principle to use the inter-library loan system to acquire the books that V. had requested. Here it is said that the aim of these actions is to prevent the abuse of freedom of expression and of the librarys unrestricted loans of various forms of publication. When V. by referring to a newspaper article he had written had been able to indicate the "serious purpose" behind his request, the library attempted to arrange an inter-library loan and then lent the requested works by from its own collection. The documents in this case reveal, as has been shown, that not until the staff had made sure that there was a serious purpose for the loan did the library accede to Vs request. It has become obvious that in establishing the nature of this purpose Vs political and religious standpoints were taken into account, and that if he had expressed, in the article or otherwise, a point of view considered by the staff to be unsuitable, his request would not have been granted. In the light of what has been said previously about the application of the principles of objectivity and equal treatment in the operations of a public library, to differentiate in this way among individuals applying for loans cannot be acceptable. This critical opinion concludes the case. Preventing the circulation of a printed work An article printed in a newspaper led the Parliamentary Ombudsman to initiate a special enquiry into whether it could be considered that obstacles had been raised to the circulation of a printed work. The article contained the following account: A ban is now in force at the library and it is being obeyed loyally by all of the library staff. This is what A., the owner of a second-hand bookshop, found out in connection with a recent event - the . He was asked by the administrative director of the library, R., not to display a number of copies of "Tidernas bibliotek". During the festival, A. had been selling the works of the visiting poets at different venues. "I sell them in the shop, so I brought some along with me to a reading at the library. . R. considered it inappropriate for me to sell the works in view of what had been said by the politicians. ." In its rejoinder to the Parliamentary Ombudsman, included the following: A. confirms that the situation was not experienced as a threatening one, but possibly as "unpleasant". He says that he was asked who had given him permission to sell books at the library. He was unable to reply and therefore considered the question to be surprising. As he could not an-swer, R. asked him to remove the books. A. chose not to continue the discussion, as he felt that the situation was strange and he was uneasy about the permission to sell books. In an adjudication of 24 1998, the Parliamentary Ombudsman, . Lavin stated the following. According to 6.1 of the Freedom of the Press Act, any Swedish citizen or legal person has the right, either personally or with the assistance of others, to sell, dispatch or otherwise disseminate printed matter. In addition, the second paragraph of 1.2 contains an explicit prohibition for any agency or other public body to prevent printing, publication or circulation to the public of printed matter because of its content, through action not authorised under the Act. The decision by that the public librarys own copies of the work "Tidernas bibliotek" were not to be sold before a certain date cannot be regarded as an unlawful ban on circulation. My assessment of this case will therefore be limited to the question submitted to me about whether the actions of representatives of the committee towards the bookseller in connection with the were in breach of the prohibition in the second paragraph of 1.2 of the Freedom of the Press Act. I shall begin by establishing that the intended sale of the books by the bookseller must be regarded as the circulation of printed matter to the public, irrespective of whether this was to take place on the librarys premises. From the rejoinder of it is clear that the reason the librarys administrative director requested the bookseller to remove the books was that he felt that he should comply with the Cultural Committees intention that the books should not be sold in the library until later. His action was not therefore based on regulations or similar circumstances prohibiting sales on the librarys premises. On the contrary, it has become clear that the intervention came about precisely because the book offered for sale by the bookseller was "Tidernas bibliotek". It was therefore, in other words, the contents of the work that gave rise to the administrative directors action. Even though this action was not accompanied by any threat or followed by any inspection, it must be regarded as an obstacle to circulation to the public. As this obstacle came from a public authority and had no support in the Freedom of the Press Act, it was unlawful. The circumstance that had decided that the Committees own copies of the book were not to be sold before a specific date cannot render the action taken against the bookseller acceptable. I consider that the documents in this case enable me to come to the conclusion that the administrative director of the library based his actions primarily on a misunder- standing of the extent of the Cultural Committees decision about the sale of the work. There was never any intention to deprive the public of the contents of the book - the book was available and could be consulted in the library itself. I find therefore that I can conclude this case with the criticism of the action expressed above. A social welfare committee granted a 19-year-old treatment in the form of attendance at a boxing camp in in the . Two officials from the social welfare services accompanied him on his trip to the . The officials were criticised be-cause the visa application signed by the youth before examina-tion of his passport in the contained the erroneous state-ment that he had not been convicted of a narcotics offence. During the summer of 1997 a number of complaints were received by the Parliamentary Ombudsman concerning in , , the head of social services, , a local councillor, and others, because had, on the basis of Article 6 in the Act (1980:620), decided that treatment for a 19-year-old youth, N.N., would involve a stay at a boxing camp in in the (Parliamentary Ombudsman reg. 2596-1997, etc.). These complaints were based on reports in the mass media. The adjudication of the Parliamentary Ombudsman dated 4 1997 contained an account of the obligations of a to children and young people and also included the following. In view of these obligations, the task of the social welfare committee was to make its own assessment, on the basis of prevailing circumstances, of suitable measures for the rehabilitation of the youth involved in this case. Such considerations can be extremely difficult and there is often scope for different opinions about how the committee should act. It is not the practice of the Parliamentary Ombudsman to express opinions about the assessments made by public authorities in individual cases. I see no reason to depart from this principle on this occasion. I shall, consequently, proceed with this matter no further. The complainant, E.W., then submitted a request that the Parliamentary Ombudsman should again examine the question of how the social welfare committee had dealt with a trip to involved in the previous case. One of his observations was that the young man concerned had entered the illegally, as erroneous information had been given in connection with the application by the for a visa on the young mans behalf. - SAS - was asked to supply what is known as a Visa-Waiver form, which travellers to the have to complete before passport control in the . One of the questions on the form is worded as follows and has to be answered with "No" or "Yes". you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities? The Parliamentary Ombudsman also consulted the extract from the criminal records concerning N.N. which revealed that narcotics offences were among the crimes for which he had been convicted. An executive officer belonging to the Office of the Parliamentary Ombudsman obtained information by telephone from one of the two officials who had accompanied N.N. on his flight to the . The case was then referred to in for its response as to what had occurred in connection with the completion of the form. referred in its written reply to an official document that had been drawn up by , the head of the social services, which included the following: During the spring the social services in were planning, in collaboration with the company social utveckling AB, the placement of a young person with major social problems. For various reasons, a placement outside was seen to be advantageous, and this was implemented during 1997. Before departure, the question of a visa was discussed with social utveckling AB. The local authoritys officials were then told that a tourist visa was completely adequate and that the company would settle the question of permits with the local authority on the spot. Telephone contact with the Visa Section at the American Embassy on 13 1997 confirmed that a tourist visa would suffice. Before landing in the , a form was completed on the young mans behalf by one of the local authoritys officials who ticked the negative response to all the questions on the second page of the form. The 19-year-old then signed the application himself. There was no intention of circumventing the American regulations, instead the company providing the treatment was supposed to arrange the appropriate permits through its local contacts. In retrospect it can be established that and its officials should have ensured in advance that the 19-year-old was permitted to enter the as planned. In this respect, the case had been dealt with ineptly. submitted his comments on the contents of the rejoinder. The Parliamentary Ombudsman obtained additional information from the two officials from the social services who had accompanied N.N. on the flight. With the assistance of the Ministry for Foreign Affairs, enquiry was made of the Swedish Embassy in the as to whether completing a visa application erroneously (dishonestly) is an offence according to American law and, if so, what sentence might be imposed and also what the conse-quence of completing the form honestly would be for someone convicted of a narcotics offence. In an adjudication dated 11 1998, the Acting Parliamentary Ombudsman, . made the following observations. I have restricted my examination of this case to the question of how the social welfare committee dealt with the visa problem or, more precisely, what occurred on arrival in the in connection with the completion of the Visa-Waiver form. I have found no reason to reconsider the Social Welfare Committees decision to grant N.N. aid in the form of stay at the boxing camp. Swedish citizens are in principle exempt from the requirement of an entry-visa to the if the duration of their stay does not exceed 90 days. Instead they have to complete what is known as a Visa-Waiver form. The form requires a negative answer to a number of questions about their personal circumstances, among them whether they have been convicted of a narcotics offence. The form has to be signed by the visitor, who certifies that the information supplied is, to the best of their knowledge, true and correct. has been convicted of a narcotics offence. When the form, which was in English, was completed, he replied in the negative to the question about whether he had been detained or punished for a narcotics offence. The form has therefore been completed incorrectly. Although the form was signed by N.N., the responses were supplied by one of the officials. According to the information given by the official in an interview with the Parliamentary Ombudsmans executive officer, he was unaware that N.N. had been convicted of a narcotics offence. has raised the question of whether one of the officials who accompanied N.N. on the flight may have committed an offence in connection with the completion of the form. In assessing whether an offence has been committed, the most appropriate course is to examine the provisions in Chapter 15 of the Penal Code, which deals with untrue statements. Other regulations that could be of interest are those dealing with untrue or negligent affirmations (15.10) and false certification (15.11). Chapter 15 of the Penal Code prescribes that if anyone gives false information in a certificate or document about, for instance, his identity or circumstances other than his own, he can under certain conditions be punished for false certification. It follows from these provisions that it is not an offence to give false information about "ones own circumstances". To state, therefore, in a certificate that one is not convicted of a narcotics offence, for instance, cannot render one guilty of false certification. Neither can anyone who helps to produce such a certificate be convicted of any complicity in this crime. On the other hand, giving false information or concealing the truth in a written document, which according to law or statute is submitted under oath, on ones honour or any such , could lead to a conviction for untrue affirmation (Penal Code 15.10) if this in some way jeopardises its trustworthiness. The reference here to law or statute applies only to Swedish regulations. There are no Swedish regulations that apply to the Visa-Waiver form concerned. There can, therefore, be no question of liability for untrue statement or complicity in such a crime. In addition to what has been said, it should be added that according to 2.2 of the Penal Code, crimes committed outside can only be judged according to Swedish law and by a Swedish court if, for instance, they are committed by a Swedish citizen or an alien domiciled in . One condition is, however, that the deed is also an offence in the place where it was committed (what is referred to as the requirement of double criminality). According to the Swedish Embassy in the , an individual who has been convicted of a narcotics offence is "inadmissible", or in other words is not entitled to enter the country. If it is subsequently discovered that a visitor has given erroneous information on the form, he has to leave the country immediately. The individual cannot then re-enter the country on the Visa-Waiver scheme but is obliged to apply for a visa. However, it does not appear to be an offence in American law to give erroneous information on the form. This circumstance also means that no liability for false statement can arise. The double criminality requirement does not apply to malfeasance, which is the subject of 20.1 in the Penal Code. According to Swedish law, actions that are punishable according to these provisions are offences irrespective of where they are committed (see et. Kommentarer till brotts-balken II [Commentary to the Criminal Code], 6th ed. In the Penal Code, 20.1.1 lays down that one of the necessary conditions for malfeasance is that the action concerned forms part of the exercise of official powers. This means not only that the offence must have taken place while on duty but also in the course of exercising public authority. The exercise of public authority as a pre-requisite for liability was introduced into the legislation on malfeasance through what was known as the civil service reform of 1975, which, as far as these crimes were concerned, considerably restricted the areas in which sanctions could be imposed. The travaux préparatoires of the legislation (Govt. 1975:78) make it clear, for instance, that the exercise of public authority finds expression in decisions or material actions that are fundamentally based on the powers of the state. They come into being and gain what legal effect they have to the individuals advantage or disadvantage by virtue of the pro-visions of public law, not on the basis of contracts or other regulations rela-t-ing to private law. The exercise of public authority consists, therefore, of the issuance of formal decisions which involve advantages, rights or obligations for individuals in different respects, and material measures undertaken to implement such decisions. What all lawful exercise of public authority has in common is that it is fundamentally based on law or other statutes. It should also be pointed out that a certain extension of the responsibilities which could render public officials liable for malfeasance came about in 1989. The pre-requisite "in the execution of public authority" was altered to "in the course of executing public authority". The intention was not to endow the concept of public authority with any content that it had not previously had but to include in the areas subject to sanction measures that, even if they could not themselves be regarded as involving the exercise of public authority, were nevertheless significant in determining the impact of the exercise of public authority on the individual. For that reason the areas subject to penalty comprise - in addition to the exercise of public authority - measures that form part of the actions of an agency or that are in some other way closely linked in time and effect with these actions. In the case under review here, the officials from the social services were accompanying N.N. to provide him with assistance during the early stages of treatment that he had voluntarily elected to undergo. Their participation in the journey and their assistance in completing the form cannot in this light and in view of what has been referred to above be considered to involve the exercise of public authority or be said to constitute part of any such action. For this reason no question of liability for malfeasance can arise. I can, therefore, conclude that the events in question cannot lead to any legal liability. This does not mean, however, that no criticism can be made of the officials from the social services. has committed crimes on a number of occasions, and some of them must be characterised as serious. The official who completed N.Ns form was aware of this. However, as has been described above, he has declared that he did not know that N.N. had also been convicted of narcotics offences. I have no reason in this respect to question the officials word. When he helped N.N. to complete the form, however, he did not ask N.N. about this matter. He does not appear to have devoted much reflection to this question. The official could have known that it was not unlawful to provide erroneous information in the Visa-Waiver. Had this been so, the official and N.N. could have found themselves in a difficult situation. Even if such action is not punishable, it goes without saying that a public official should not assist in providing misleading or erroneous information to another agency, irrespective of whether it is Swedish or foreign. The second official on the flight was not involved when N.Ns Visa-Waiver was completed. As the other officials superior, however, he should have reacted to the questions on the form - which he was aware of as he himself had to fill in a form on his own account - and made it clear how N.Ns form was to be completed. Before the journey to the , the visa problem had been discussed with the company supplying the treatment, social utveckling AB. The social services had also been in contact with the Embassy of the in . The information received does not appear to have made the social services aware of what was required for entry to the . The Embassys failure to supply this information was probably a result of the provision of inadequate information by the social services about the reasons for the journey. As the Committee indicates in its written response, in this respect the case was not managed with sufficient consideration and forethought. As a result of the inadequate preparations by the social services, the questions about N.Ns background must have come as a surprise when the party arrived in the . This circumstance may to a certain extent mitigate my criticism of the officials. Nevertheless, they should not have acted as they did. It is not unknown for social welfare committees to arrange to provide treatment abroad, within the framework of various projects, for young people with criminal records. As far as this is concerned, I can refer in general terms to the statements made in the Parliamentary Ombudsmans annual report for 1990/91, pp.