sou · GRB399d1 · 2004-01-01 00:00:00 — Examples of information that can be affected by the proposal are information about changes of sex, people who are transsexuals, depictions of children in pornographic images and information about serious mental illness. The proposal is intended for enterprises where the protection of secrecy for sensitive information does not exist at the present time. We are not seeking to achieve a protection of secrecy that is completely comprehensive in its coverage; it is more a matter of a makeshift solution for those cases where extremely sensitive information about individuals would otherwise not be protected by secrecy at all. The presumption of the right of public access should therefore be strong. Personal information that is protected (chapter 7) An enhanced degree of secrecy protection concerning sensitive personal information We propose that secrecy should prevail wherever the official secrets act is applicable concerning information about the address, telephone number or similar information about an individual, if there is a particular reason to presume that the individual in question or someone close to that person might be subjected to threats, violence or anything else of a serious nature if the information is divulged. security (SOU 2002:71) has submitted proposals to the effect that the protection for sensitive personal information should be enhanced within the Swedish national registration system. Among other things the proposal means that the secrecy applied to a matter concerning confidential information in the Swedish national registration system would be transferred to an authority to which the information is submitted. However, the proposal does not entail protection for the information if it is passed on to a third authority. Neither does it give any protection in those cases where the individual in question submits their own confidential personal information to an authority. The to be able to offer protection to persons who are being threatened is something that considerable weight. The work that is done by the tax authorities to grant protection to a person who is being persecuted or threatened can be in vain due to shortcomings in the legislation concerning secrecy. If protected personal information is given out, the consequences can be devastating for the person who is being threatened or persecuted. Our proposal is intended to prevent this. An enhanced degree of secrecy protection concerning information about the link between real and fictitious identities We propose that secrecy shall apply to information about the link between an individuals real identity and fictitious identity that refers to a matter concerning fictitious personal details, irrespective of the authority where the information is to be found, if it not clear that the individual will not suffer harm if the information is revealed. few authorities need to be given information that makes it possible to link the real identity to the fictitious one. Usually the cooperation of the Swedish national board is enough for certain information to be transferred from a real identity to a fictitious one. However, situations do arise in which it can be necessary for an authority to know all about the person who is concealed by a fictitious identity in order for that person to be able to exercise his or her rights. Moreover, it is not impossible that in some cases the person in question will submit information about both identities to an authority without that information being subject to any regulations concerning secrecy at the authority in question. In order to really prevent information about the link between an individuals real and fictitious identities from ending up in an enterprise where they are not protected by secrecy, comprehensive regulation that applies to all public enterprises is necessary. Only those authorities that for some reason have information concerning both identities are to apply the regulation. Since it is a matter of extremely sensitive information, the presumption should be that any breach of confidentiality would be harmful. Insight for a party (chapter 8) We propose a minor addition to the regulation in the official secrets act concerning insight for a party. From the addition it is clear that the regulation as such does not grant any entitlement to insight, it merely regulates the conflict that can arise between the official secrets act and the right granted by other regulations or on other legal grounds for a party to be entitled to insight into a matter. Indicating secrecy (chapter 9) An authority is entitled to make a note on a public document that secrecy applies to information in the document. We propose that henceforth such a note should be called a secrecy mark and that this term should be apparent from the wording of the legislation. In addition we propose that the regulation should be changed so that it better reflects the fact that a note about possible secrecy can be made on all documents, whatever the medium in question. This can be achieved by removing the requirement that the note is to contain the word secret. Some issues concerning secrecy at archival authorities (chapter 10) National registration material at state archival authorities In recent years there has been an increase in the demand from genealogists for large amounts of information from the parish registration records. The material in the parish registration records is subject to the secrecy that applies to national registration material. The vast majority of the information in the parish registration records is available to the public, but the material can contain information that is subject to secrecy. In our judgement the release of public documents from the parish registration records or information from such documents is no different from the situation for which the scrutiny of secrecy and, as a part of that, the matter of reservation according to chapter 14, section 9 paragraph one of the official secrets act (1980:100) was framed. The fact that it could be a matter of releasing large amounts of information is not sufficient reason to create a special form of release or reservation. The transfer of secrecy to the archival authorities We propose that the regulation concerning the transfer of secrecy to the archival authorities should be changed so that, as a rule, the secrecy does not prevent the material being lent to the authority that supplied it. However, the regulations concerning secrecy should be applied if the authority is obliged to supply the material to the record-keeping authority because of a regulation that has been issued on the basis of legislation concerning personal data protection. It is in the interest of both the archival authorities and other authorities that relatively new material should be supplied to the archival authorities. Such supplies can be to the advantage of the long-term preservation of public documents. However, early delivery would be obstructed if the authority supplying it risks not being able to borrow it back again due to the secrecy that applies between archival authorities and the first authority. At the same time, handing over archive material could be an alternative to destroying documents that are subject to regulations concerning the removal of information for the protection of personal integrity. Secrecy between and within authorities (chapter 11) Secrecy should continue to prevail between and within authorities in the future We consider that security limitations should still prevail both between and within authorities. The demand that the integrity of the individual should be well protected presumes that secrecy prevails, not merely with respect to other individuals, but also between various authorities. secrecy between authorities, information could be disseminated to a far too great extent beyond the context where it is originally to be found. Even within authorities there should be regulations preventing information that has been submitted for one purpose from being used by the authority in another context; and information concerning sensitive personal circumstances from becoming known to an unnecessarily large number of people. Secrecy between and within authorities is also something that is relatively ingrained in people who are to apply the official secrets act. The link between the official secrets act and the personal data act should be clarified with respect to the transfer of information between and within authorities We propose that it should be clear from the personal data act that the regulations in the act do not prevent an authority from giving personal information to another authority or to another area of confidentiality within the same authority if the transfer is done in accordance with the official secrets act. It is part of our task to review, in certain areas, the opportunities for the authorities to exchange confidential information to a greater extent than is presently the case. Since our directives were written, the personal data act has come into force. The consequence of this is that it is no longer just the regulations of the official secrets act that may be applicable when it comes to the exchange of confidential information between authorities, but also the regulations of the personal information act, possibly together with special laws concerning how to deal with personal details. According to the directive concerning data protection, which forms the background to the personal data act, personal details may only be released if such a release is not incompatible with the aims for which the information has been collected (the finality principle). The same regulation is to be found in the personal data act. Our regulation of secrecy achieves the same purpose as the finality principle: i.e. authorities are prevented from releasing to other authorities information that is sensitive with respect to the integrity of a person for purposes that the legislator deems to be incompatible with the purpose for which the information has been collected. When the regulations concerning breaches of security were implemented, the legislator weighed up the interest that the information be released against the interest that the integrity of a particular individual should be protected. In this respect it is less important if the information has been released by the authority of its own accord or in response to a request. In our judgement, the regulations of the official secrets act do not diverge from those of the personal data act. The release of personal particulars to another authority in agreement with the official secrets act should rather be seen as an action that is permitted according to the personal data act. This should be immediately evident from the personal data act. When it comes to the treatment of the information by the authority receiving it, the personal data act applies. The receiving authority may thus not information for a purpose that is not specifically stated and authorized. Subsequently the information may not be dealt with for any purpose that is incompatible with that for which the information was collected. Security dividing-lines within and between authorities (chapter 12) New security dividing-lines within the boards in municipalities and county councils We propose that the security dividing-lines within the boards in municipalities and county councils should be changed. Instead of secrecy in the relationship between independent branches of enterprises, secrecy within the boards should apply to the relationship between enterprises of various kinds. By enterprises of various kinds is meant enterprises that are concerned with various circumstances or have various aims. A definition to that effect should be incorporated into the law. In certain areas the security dividing-lines should be directly apparent from the official secrets act. On the same footing as boards in municipalities and county councils are the boards of associations or other organs in a municipal association, together with companies, associations and foundations that according to the official secrets act are to be deemed the equivalent of authorities. For authorities other than those named above, the current system of secrecy with respect to the relationship between various independent branches of enterprises is to remain. According to the current regulations, secrecy arises in the relationship between various branches of enterprises when these are deemed to be independent with respect to each other. This system is open to criticism, among other things because it should not be possible to avoid secrecy within an authority by neglecting organisational measures. In addition it is far too difficult for an outsider to decide if any security dividing-lines exist within the authority. Since the implementation of the free municipal board organisation, it has become doubtful whether the current regulations concerning secrecy within authorities can be applied in their entirety to the municipal boards. Uncertainty has arisen as to what is required in order for a security dividing-line between various activities in the same board to be put in place. Given the great opportunities that exist to permit one and the same board to deal with enterprises that differ widely from each other, it is with respect to the boards that it becomes particularly important that security dividing-lines should be precise. Our starting-point when it comes to finding a new solution for security dividing-lines within authorities is that the security dividing-lines, as far as possible, should depend on the actual activities of the enterprises and not the organisation of the authority as such. An advantage of this is that secrecy becomes more predictable. Such a solution entails finding a balance between protecting the integrity of the individual and enabling the authority to work as efficiently as possible. The security dividing-lines in the spheres of health care, the services, the social services and the educational services should be immediately apparent from the official secrets act We propose that the security dividing-lines in the spheres of health care, the services, the social services and the educational services should be immediately apparent from the official secrets act. We have found that it is primarily in the area of health care, the services, the social services and the educational services that uncertainty concerning security dividing-lines is to be found. In this report we are therefore going to itemise which of these enterprises within these areas we consider should be of the same types or of different types. In certain cases this is not obvious. In those cases where a decision would require a major work of investigation, which it has not been possible for us to undertake, we will regulate security dividing-lines in the light of what we consider to be the legislation that is applicable. It shall be apparent from the law when there is no security dividing-line between various enterprises that are conducted in an integrated or that have boards in common We propose that it shall be apparent from the law when there is not to be a security dividing-line between various types of enterprises that are conducted in an integrated or that have boards in common. Our proposal that secrecy should apply within a board between enterprises of various kinds means that a security dividing-line would arise between the municipal health care services, services and the social services, which cooperate as a result of the reforms instituted in 1992 (Ädelreformen). When the reform was implemented, it was presumed that no security dividing-line would exist between these enterprises. The security dividing-line should therefore be removed from the official secrets act. As a result, no scrutiny of the need for secrecy would be required before information that is subject to secrecy regulations is exchanged between the enterprises. To the extent that there are other integrated enterprises, or when such enterprises arise, the secrecy issue should be solved in an equivalent , i.e. by removing statutory security dividing- lines. New security dividing-lines between the boards in a municipality or a county board We propose that there should not be any security dividing-line between the boards within a municipality or a county board to the extent that the enterprises are similar in nature. We have seen above that secrecy within the boards in municipalities and county boards should not be dependent upon the organisation in the boards, but should be determined by whether the enterprises are considered to be similar in nature. The same understanding can be made applicable when it comes to secrecy between various boards. Even if each board is an authority, we consider that secrecy should not apply within a municipality concerning the relationship between those enterprises that are of the same type. The security dividing-lines thereby remain the same irrespective of organisational decisions. The divisions into local municipal boards, joint boards or district boards do not therefore affect the security dividing-lines. This means, among other things, that secrecy no longer applies within, for example, the municipal social services, even if the enterprise is divided up between various local municipal boards. However, secrecy still applies between the boards in enterprises that are of different types. No new security dividing-lines are proposed for the state authorities We propose no new security dividing-lines for any other authorities than the boards within municipalities and county councils. However, the various independent branch enterprises of the state authorities should be clarified in the instructions to authorities to a greater extent than is currently the case. When the tasks of an authority are described, it should be stated which enterprise the task belongs to. This will result in greater predictability and create clearer security dividing-lines within the state authorities as well. Regulation of internal secrecy We propose the insertion of a regulation into the official secrets act stating that if it can be assumed that information subject to a secrecy order may not be released from one area of secrecy, the information may not be divulged within the area of secrecy if it is clearly not necessary for the enterprise. In the enterprise that an item of information is concerned with, there is no regulation in the official secrets act that prevents the information from being divulged within the enterprise. This applies even when the release of this information is not necessary for the enterprise. The need to regulate internal secrecy has not previously been a subject for consideration. The question of what information may be divulged within an enterprise is primarily an ethical issue. However, common legislation that applies to all enterprises that apply the official secrets act would promote greater clarity in the matter. Such legislation would not prevent colleagues from exchanging information and experiences. Such an exchange can take place without the identity of an individual being revealed, however. Given the regulation of internal secrecy by law, the issue of criminal liability arises. Both intentional crimes and crimes of negligence are punishable by law. In trivial cases there is no penal liability however. A regulation of internal secrecy makes it more important for colleagues not to exchange sensitive information among themselves when it is not necessary. and all such exchanges of such information as a result of gossip, curiosity or other irrelevant purposes would become illegal. Exchange of information between the spheres of nursing and caring (chapter 13) We propose that secrecy within the spheres of health care, the services and the social services should not prevent information about an individual that is needed in order for him or her to receive the necessary nursing, care, treatment or other support that is provided by an authority in the fields of health care, the services and the social services from being divulged to another such authority or to a private caregiver or other separate private enterprise within the sphere of the social services. The proposal entails a widening of chapter 14, paragraph 2, section 6 of the current official secrets act. In the fields of health care, the services and the social services, information is classified as secret with the presumption that it would be damaging to reveal information. These areas are exempted from applying the general . For these enterprises, when there is no exemption from secrecy in any legislation or regulations, the transfer of information from one authority to another within this area would in principle be dependent upon the consent of the individual. In the vast majority of cases this is not a problem. The problems arise when it is not appropriate or possible to ask if a certain piece of information may be divulged, or when the individual refuses to agree to it being divulged even though the authority that is to be given the information requires it in order to give the treatment or care that is necessary. The primary aim, even in the future, should be to procure consent. Exemptions to this rule should only be granted with discretion and caution. The release of information from the health care services, the services and the social services to the in the event of a serious crime (chapter 14) A rider concerning secrecy and women who are subject to violence Our judgement is that information from the health care services, the services and the social services should, as is the case at the present time, only be given to the authorities investigating a crime without the consent of a woman who is subject to violence, when it is a matter of the very worst crimes. The fact that there are children in the home is no reason to take any other position. It has been said that an exception to the rule of secrecy when it comes to violence directed against women is an important indication by society that such violence will not be tolerated. The question is whether greater opportunities for the staff in the health care services, the services and the social services to report suspected crimes, when the woman herself does not wish to do so, would be beneficial. It has been said that a report to the by somebody other than the woman herself could be supportive for her in such a situation. Such cases may exist. However, one must not ignore the fact that the effect of a complaint to the could have a diametrically opposite effect. The curtailment of a womans right of self-determination in this could be perceived as being extremely offensive. If a womans testimony is then questioned or doubted during legal proceedings, this can be an additional burden for her. Moreover, the health care services and the services can be the only place to which a woman who is subjected to violence can turn to, without fearing that the information she gives will be passed on to others. Given this background, it is our understanding that is it only in clearly exceptional cases that those people upon whose professional help the woman depends may pass on information about suspected crimes to the . At the present time this is only possible for the staff of the health care services, the services and the social services to do so where the very worst crimes are concerned. Even children and young people who are not subjected to violence themselves, but who grow up in families where such violence occurs may fare badly. It is therefore important that attention be paid to the childrens situation when women are assaulted. However, it is the social welfare board, not the , which is responsible for the child getting the protection or support it is in need of.