sou · GQB3112 · 2003-01-01 00:00:00 — Another example is so-called service declarations, where agencies commit themselves to a certain level of service, and pledge themselves to certain penalties, should the service levels not be reached. These service declarations have been introduced in Swedish agencies as a new kind of democratic interaction be- tween agencies and users, i.e. We will briefly discuss some legal problems related to such policy documents. The signature-related policy documents would normally, when used in the private sector, be part of a contract between the parties. This would cause any legal problems. A govern- ment agency, on the other hand, cannot normally enter into a contract with a citizen. The relationship between government and citizens is, and should be, regulated by law. This is the funda- mental demand of the rule of law. It does not necessarily have to be a problem in the individual case that an agency relies on a pol- icy document. It may even give the citizen more rights than law entitles him to. On the other hand, it may deprive the citizen of his rights. We have, for example, seen a document providing that disputes between the citizen and the agency be resolved by an ar- bitrator. This would not be allowed under Swedish administrative law. The content of such documents is often dependent on inter- national standards. These standards are laid down by interna- tional organisations, and their foundation is private law, not Swedish administrative law. This way, foreign private law sneaks into areas that normally are, and should be, governed by national administrative law. The major short-term risk with this kind of documents is the uncertainty as to their legal status. The citizen could rely on a document that might prove to be not legally valid. It could also happen that an agency limited its own freedom of action in a way that is not in accordance with administrative law, denying the citizen some right he would be entitled to by law. In the end, the inclusion of this kind of policy document in the legal infrastructure of the administration may be unavoidable. This will transform the legal infrastructure and the relationship between citizens and government. It is essential that these changes should not be allowed to take place willy-nilly and, not least, that these documents should be introduced with the partici- pation of administrative lawyers. 8 rules, new roles We have outlined two areas of administrative development that are of particular interest from the legal point of view: legal provi- sions for forms, and new legal documents in the administration. One of the main conclusions of the discussion on forms could be that what seemed on the face of things to be a simple question turned out to have quite far-reaching and perhaps unex- pected implications. What appeared to be a security problem turned out to be potentially capable of changing the perception of government. Some of the traditional signs of power will lose their meaning, and in consequence the role of government in relation to the citizens is likely to change. It will be less of a sovereign and more of a partner or a supplier of certain services. Services that are not granted ex on the subjects petition, but are supplied on demand to a citizen-consumer. The new kinds of legal documents tend to blur the line be- tween administrative and private law. This is in fact a change along the same lines as the changes just mentioned. The govern- ment will be perceived more as just another organisation, and it is only reasonable that it should be subject to the same legal framework as any other organisation. This leads us back to the organisational changes mentioned briefly above. The use of IT will ultimately change not only the perception of government as well as the forms of regulation. It will change the fundamental role of government. The new roles of government are impossible to foresee. It would be dangerous to give up basic principles of administrative law, such as the rule of law, to enable technological development in the short term. It would be equally ill advised to cling to outdated legal principles, only to one day find that reality has left the law behind. The new forms of interaction between government and citi- zens will contribute to the changing role of government. With the use of IT, the citizens can be consulted on a regular basis not only in parliamentary elections every four years, but also on all questions that concern them (and for that matter on questions that do not concern them). They will then also expect to be consulted. The roles of citizens, politicians and public servants will change fundamentally in ways that we do not know and cannot fully con- trol. It is important that administrative law keep abreast of these changes. In the end, we have argued; the character of administrative law will change. But what, then, could be the role of law, if it is futile to resist the technological changes? The law and the lawyers are often perceived as obstacles to de- velopment. This opinion is not without merit. As we see it, how- ever, there is no fundamental conflict between law and develop- ment. It is merely a question of attitude, both among technolo- gists and among lawyers. It is important that those who most ag- gressively argue for changes recognise the value of the continuity in law and the value of the rule of law. At the same time, those defending the principles of administrative law must see that some development may be not only desirable but unavoidable. The role of law, then, must not be to obstruct, but instead to be a powerful tool for change. The law can give certainty and guarantee that technological development will be in the service of the citizens. In order to defend the rule of law, it will be necessary to re- define the role of law. Access Laws in a Flux and I say, hey stop, where is that database, is it on the net, it isnt on the big net is it? Yes, it is on the net, he says, but I hate the net, be- cause the net is water, in fact only and death are more water than the net, because on the net everything flows, on the net the flow is free, freer than all other places taken together, it changes all the time, it is like an information flock of birds, it constantly changes direction, but not elegantly and at the same time, like a flock of birds, the image was miserable, forget it, but the direction changes, and you cannot step down into the same net twice, because it only exists for the moment and the next mo- ment it will be something else, and I hate eve- rything that is something else the next moment and I dont want to have anything to do with it 1 Naming and taming The narrator in novel Facts about hates water because he hates change. The reader is not surprised to find that he also hates the Internet, and data networks generally. Like water the data nets stand for change and change involves threats that take on the shapes of uncertainty, blurry categories, lost di- lines, broken connections with the past, and so forth. Not only an individual but also a society, its legal system included, may have reasons to fear change. Several years ago in , a legislative committee ar- ranged a public hearing on the adaptation of access laws to mod- ern information technology. The discussion soon made it clear that the traditional object of the constitutionally guaranteed ac- cess right had lost its previous stability. In fact, as some of the is a member of the IT . , Fakta om (Facts about ), : 2001, p. My translation from Norwegian does poor to Loes ex- traordinary prose. participating experts pointed out, information seekers had a right to request documents regardless of whether they existed as writ- ten or printed, ready-made objects in the archive of a public au- thority. A distinguished of the Supreme Administrative Court, also a renowned specialist on access rights law, found this to be a monstrosity. How on earth, he asked, can a public author- ity be required to hand out things that dont exist? How on earth can the law be construed and applied in such a way that a public authority doesnt even know itself what official documents it stores in its archives? If a document is no longer a document, then something has gone terribly wrong. The problem that surfaced at the hearing was not unknown. In the 1960s a law-making committee had paid attention to the new, electronic media and pointed at some of the basic difficul- ties that they were likely to give rise to in the future. there- after, in 1971, the Supreme Administrative Court dealt with the question of whether magnetic tapes for computers should be seen as documents according to the basic regulation of access rights in Chapter 2 of the 1947 Freedom of the Press Act.2 A county administration had refused to hand out such tapes on the ground that they were not to be seen as documents but rather as tools or instruments that could be used to produce documents. The Supreme Administrative Court, however, chose to regard the magnetic tapes as documents. The Court emphasised that a de- cision in the opposite direction would mean that increasingly large volumes of information would move beyond the reach of the access rights legislation. It would enable public authorities to steer away from openness by choosing non-document, electronic format for the storage of information. The Supreme Administra- tive Court found such a development unacceptable and, in conse- quence, construed the document concept broadly. By naming the new electronic media documents, the Court aimed to tame them, to place them securely into the traditional legal framework. However, the issue of the scope of the decision immediately came to the fore. Briefly, did the right of access include a right to obtain computer readable copies of the tapes or just paper print- outs? 2 The challenges of ICT The 1971 decision of the Supreme Administrative Court opened a gate, and the data files of public authorities were made accessi- RÅ 1971 ref. 15. See also RÅ 1965 ref. 25 and RÅ 1969 ref. 11. ble to the public. It did not take long for the lawmaker to confirm the action and revise certain relevant sections of the Freedom of the Press Act. Basically, ICT posed two kinds of challenges. One challenge was the one noted by the Supreme Adminis- trative Court, viz. that more and more information in public ad- ministration moves into the electronic environment of computers and data communication. Therefore, in order not to put the right of access in danger, it is necessary to let electronic media pass as documents and be treated in the same way as traditional media, i.e. eye-readable media such as paper documents, drawings, and photographs. The other challenge concerns the new characteristics of the electronic environment. Not only is information registered and stored in new ways, it can also be processed and communicated in new ways. The question is: what does this mean for access rights? For example, automation enables new kinds of searches for information and if information is handed out in electronic format it may be used for purposes that differ considerably from what is possible with ordinary paper media. The Swedish lawmaker has always been aware of the last mentioned, more far-reaching effects of information technology, and this awareness has found expression in three guiding princi- ples: (a)The use of ICT in public administration should not be al- lowed to erode the right of access and reduce openness. (b)To the extent that ICT strengthens the right of access, such a development is to be welcomed. (c)The purpose of the right of access is to enable control of the activities of public authorities and to support the rule of law. However, it is also intended to make all kinds of public informa- tion resources available, resources that are of value for public de- bate and for the understanding of various matters in society. The three principles may seem simple and rather uncontroversial in a democratic society, but in practice they involve complica- tions and conflicts of interests. 3 Documents, data, information Some of the difficulties have to do with the shaping of the regulation of access rights in view of the new, electronic environ- ment. After all, naming is not such an easy task. For one thing, there is a need for neutrality and independence in relation to technology. The discussion of such needs tends to be a bit con- fused. Basically, different types of media ought to be treated in the same way. And the legal regulation ought not to be tied to a particular state of the art so that it needs continuous revision as media and data processing methods change. The meaning of such a striving for neutrality and independence can differ from one area to another. For example, in order to make a regulation tech- nology-neutral it may be necessary to go into details that are con- trary to the interest of technology-independence. There is also a need for awareness of what may be called the practical impact of technological developments on a particular regulation. To illustrate, consider the difference between obtaining only a paper printout of a computer file and obtaining a computer- readable, digital version of the file. Or consider the difference be- tween manual searching of paper index cards and automatic searching of a modern electronic, relational database. Viewed in this perspective, a regulation that is formally both technology- neutral and technology-independent may still be strongly affected by the technological setting. It has even been put in question whether legal regulation can ever aspire to be neutral and inde- pendent in relation to information technology. The Swedish naming operation began with the decision of the Supreme Administrative Court to construe the concept document so broadly as to include electronic media in the form of magnetic tapes. Ensuing revisions of the access rights regula- tion in Chapter 2 of the Freedom of the Press Act have elaborated on this scheme. Thus, according to current law there are two categories of documents. One category is made up of traditional, visible media such as pieces of paper and x-ray photographs. The other category comprises recordings that one can read, listen to or comprehend in another way only by means of technical aids. The regulation does not spell this out, but one can group such technical recordings into two categories. One consists of sim- ple recordings such as microfilm and the other of complex re- cordings where the technical tool plays a significant role with re- gard to retrieval, selection, arrangement, transformation, presen- tation, and so forth. Basically, computer recordings may be said to be complex recordings. The complex nature of computer recordings has made it neces- sary to try to pin down more precisely what is a recording in the digital environment. Two borders have to be considered. One concerns the upper limit where an entity of information ceases to be one document and needs to be regarded as several. The other concerns the lower limit where one encounters the components that together make up a document. The two limits are not un- known in the context of traditional media but it is mainly in the digital environment that they become a practical concern. Thus, in the paper environment the dividing lines appear natural and self-evident – a letter is one document even when it consists of two pages and an appended drawing. In the electronic environ- ment, the physical clues lose their obviousness whereas the logi- cal structure of the information becomes important. For example, a chain of comments on a specific topic or a sequence of hyper- text links may or may not be considered to make up one docu- ment. The definition according to Swedish law of a recording in the context of automated data processing is any meaningful compilation of data. The requesting party decides what is mean- ingful and, since he or she is not compelled to disclose the pur- pose of the request, one may conclude that a digital recording may in fact equal any information stored in a digital format. Obviously, such an all-embracing and amorphous object of ac- cess needs some further limitation. One possibility could be to re- fer to the storage medium as such, but todays storage media do not lend themselves to restrictive and clear definitions of what is a document (a handy memory stick may, for example, store many megabytes of data). Instead, limitations are to be found mainly in the notion of . Only recordings that are being kept by a public authority can be requested. The notion of keep- ing in its turn presupposes that the recording (the compilation of data) can be made available through routine measures and with the aid of technical equipment that is used by the public authority itself. It is not necessary, however, that the public authority itself should have any interest in producing the requested compilation of data, nor that it should ever have produced it before. In other words; according to Swedish constitutional law, the public has a right to request and obtain access not only to pre-existing docu- ments kept by public authorities but also to what are called po- tential documents, i.e. documents that may be produced by com- piling data. It has to be emphasised that the right to gain access to potential documents exists only with regard to recordings and not with regard to traditional, non-technical documents. One can say that, almost invisible in the text of the statute, there exist two categories of access rights, one for traditional media and one for digital media. Fixation and stability put their mark on the first kind, flexibility and flow on the second. There is a tension be- tween the two, a tension that has to do with the fundamental question of what kind of access rights a democratic society needs. 4 Fixation and flow The Swedish regulation of access rights came into being in 1766 in what may be called a steady-state world of information man- agement. In this world, recording information and moving it around took time. This made it natural for the right of access to focus on information frozen in ledgers, letters, diaries, dossiers, protocols, and so forth. At about the same time (in the late 18th century), modern ideas of archives also began to be developed. Here too, frozen information was at the centre of attention, and the so-called principle of provenance was beginning to establish itself as the basis for the creation and structuring of archives. Briefly, the principle of provenance means that materials in ar- chives should be kept and structured so that later they can be ac- cessed and used with the fullest possible understanding of their original, functional context. Thus, archives ought to be organised so that they reflect the historical organisation and activities of the source. Archives, in sum, were looked upon as frozen informa- tion reflecting how it actually was. The principle of prove- nance is still very much alive and puts its mark on todays ar- chive theory. The notion of frozen information can never be fully true and pure. To continue expanding the metaphor, there is water under the ice and flowing water does not freeze. Change seeps into the world of fixed media. To take a trivial example: a letter may refer to other information and to circumstances that no longer exist and are known. Thus, the interpretation of the text of the letter becomes uncertain and will have to be based on guesswork and reconstruction of its original meaning. What purpose did the of the letter have in mind? How did its recipient under- stand the letter? Meaning is elusive. Meaning means many a thing. Modern electronic media tend to emphasise the fluid nature of information. They lend themselves to processing that involves rapid changes, diverse uses, deconstruction and reconstruction, and so forth. In fact (and to take the metaphor one step further), digital media vaporise information and in that sense may be looked upon as information steam engines working at high pres- sure and at a high speed. So, what are the consequences of the growing use of elec- tronic media and the introduction of technical recordings and potential documents? The question has more than one answer. To begin with, the information units that may be the object of ac- cess rights have become fuzzy. The discussion above on the up- per and lower limits of documents, and the remarks about the fading away of simple, physical delimitation criteria illustrate this. When a document may consist of any meaningful compila- tion of data and the of the document is defined as the capability to make the data visible or audible through the use of routine measures, then the situation is certainly more fluid than in the traditional paper world where the existence and location of documents is simpler in nature. In the paper world there are no potential documents, there are only pre-existing documents, fixed in form and ready to be fetched from a shelf or a drawer. Secondly, in the electronic world it is practical and easy to process fragments of information in the form of data snippets and to relate them to one another. The spreadsheet is a well-known example. In a spreadsheet, each so-called cell may contain either data or code, i.e. instructions that describe how certain data are to be processed. For example, cell A10 in the matrix may contain a number whereas cell B10 contains a procedure such that a certain percentage of the value stored in cell A10 is calculated. The spreadsheet concept may be looked upon as a general model of modern, electronic data processing, characterised by complex in- terdependencies among parts and an intricate mesh of static and dynamic elements. The old filing system based on paper index cards, microfilm or some other static of data has all but disappeared. Today, access rights apply or may apply to dynamic information systems where information patterns rather than in- formation units are of interest to the information seekers. Increas- ingly, the information systems function in real-time, and access therefore tends to be concerned with short-lived and momentary information as well as (and sometimes rather than) historical. Thirdly, the organisational structure of public administration changes, due to increasingly widespread and intense use of ICT. The phenomenon is sometimes labelled convergence, i.e. the floating together of things and activities that used to be separate and different. There are many aspects to be noted. There is, for example, the convergence of different administrative activities, of different administrative organs, of public sector activities and private sector activities, and so forth. Bureaucratic, rigid organisations give way to what in Future Shock (1971) labelled ac-hocracy. Generally speaking, administrative structures become more fluid, with ensuing difficulties for access rights. For one thing, their aims become uncertain. What are they for? Critical examination of the activities of public authorities or something more? And is the existing regulation capable of dealing with hot information steam of the kind produced by electronic information and com- munication technology? 5 Minimalism and maximalism Minimalism here means a cautious attitude to openness and digi- tal media, maximalism means seeking new solutions and a striv- ing to strengthen the right of access. The minimalist tends to ad- vocate a narrow kind of access right aimed at controlling the do- ings of public authorities. The maximalist emphasises the value of openness in general. We can approach the issues from two di- rections. One has to do with efforts to modernise the terminology and structure of access rights regulation. The other has to do with a possible expansion of the right of access, i.e. a content-oriented reengineering of the regulation.