frsrdg · GU04JO1 · 2007-01-01 00:00:00 — These have often been brief and from some distance and, because of its size, in an excited state of mind, so that no reliable determination of its species can be expected. attempts to ascertain the monsters species would probably involve actions that contrive- ne the intentions underlying the protection order. It would appear to be im- possible to attain any clear determination of the species unless a dead monster floats to the surface to permit examination. At the moment, however, the Storsjö monster is a crypto-zoological phenomenon, perhaps a species that has been officially declared extinct. The question of the existence of the Storsjö monster depends on the premi- ses adopted to determine the issue. The Environmental Court claimed that it has not been possible to verify its species in a scientific . refrains from taking a definite position on the extent to which the monster may exist in such a way that it can become the subject of a protection order. What is however clear, in the opinion of the County Admi- nistrative Board, is that it does exist in that it has an existence in the peoples perception of the world. The County Administrative Board concurs with the opinion of the Parlia- mentary Ombudsman that the finding of the Environmental Court in the judgment referred to above was that the decision made by the County Admi- nistrative 22, 1986, to issue a protection order for the Stor- sjö monster lacked legal force. The County Administrative Boards decision to issue a protection order has therefore been judged by the court to lack legal effect. As the constitution lays down that public authority in must be exercised under the law (Article 1 of Chapter 1 of the Instrument of Government) and as it is primar- ily the role of the courts to interpret current legislation, no other course of action is open to as a public authority but to rescind the decision to place the Storsjö monster under protection. The supervision exercised by the Parliamentary Ombudsmen is intended first and foremost to ensure that those who exercise public authority comply with 2 006 /0 7:J O1 BILAGA 10 the statutes and other regulations and otherwise discharge their obligations fully. According to their instructions the Parliamentary Ombudsmen are to pay particular attention to the compliance of the courts of law and public authorities with the provisions in the Instrument of Government on, for in- stance, objectivity. With this background, there are reasons to question the decision of in 1986 to place the Storsjö monster under protection, this in spite of the fact that one of its tasks is to encourage tourism. I have then weighed the protection order and the circumstances around it against the self-evident requirement that those who discharge duties in the public administration must not devote time and energy to matters that do not fall within their obligations and responsibilities. Furthermore, I have also taken into account how important it is for an authority not to use its powers in unintended ways and in addition considered the question of whether the ex- tensive review that preceded the decision to issue the protection order was justifiable. Another question to which I have devoted some thought is whether in the future there can be any justification for County Administrative Boards and appeal courts to be burdened, as in this case, with cases relating to the protection order. According to their instructions the Parliamentary Ombudsmen should not deal with cases that date from more than two years previously unless there are special grounds for doing so. In my opinion, there are no such grounds apart from those adduced above to look any more closely into or refer to what pre- ceded the decision by in 1986 to issue the regulation placing the Storsjö monster under protection. can I see any grounds for further consideration of the in which dealt with the application for exemption in 2002 and 2003. The Environmental Court found that the constitution contained provisions that prevented the application of the County Administrative Boards regula- tion placing the Storsjö monster under protection. I share the opinion of the court on this matter. In view of the fact that the regulation must therefore be considered to lack any legal force there are, in my opinion, good grounds for to consider the issue of the continued valid- ity of the regulation. I note that according to its statement the County Admin- istrative Board intends to review this issue without delay and request to forward its decision to the Parliamentary Ombudsmen for their information. After the Parliamentary Ombudsman had concluded the case, forwarded the following decision for his information. BILAGA 10 200 6/07 :J O1 Revocation of a decision DECISION revokes the decision issued on January 22, 1986. This decision is to take force immediately. Appeal against this decision may be made to the County Administrative Court of , see annex (form F4). After an application in 1985 by Tourist Office the County Admi- nistrative Board decided to prohibit the killing, injury or live capture of ani- mals of the Storsjö monster species. In addition the order prohibited the re- moval or injury of the monsters eggs, roe or nests. This decision was publi- shed in for the county (23 FS 1986:3). The Administrative Procedure Act (1986:223) lays down that if an authority finds that a decision that it has issued as a first instance is manifestly incorrect because of a change of circumstances or for some other reason, it must amend the decision if this can be arranged rapidly and simply and is not to the disad- vantage of any individual party. THE ASSESSMENT OF THE COUNTY ADMINISTRATIVE BOARD The decision to place the Storsjö monster under protection resulted from a manifestly incorrect application of the law as there are no statutory grounds for protecting an animal of an indeterminate species. Therefore the decision is to be rescinded. The decision was added to the Parliamentary Ombudsmens file on the case. 2 006 /0 7:J O1 BILAGA 10 Prosecution of employees of of duty arising from failure to comply with judgments of the Administrative Court of Appeal concerning the release of documents etc. 1568-2003 and 1606-2003) In an adjudication dated 26, 2006, the Parliamentary Ombudsman, , included the following. The fundamental provisions on public access to official documents can be found in Chapter 2 of the Freedom of the Press Act. This also contains regula- tions on the provision of public documents. These must be provided without delay. Section 15 of Chapter 2 of the Freedom of the Press Act and Section 7 of Chapter 15 of the Secrecy Act (1980:100) also provide that appeal may be made to an administrative court of appeal against the decision of an authority to reject the request by an individual to be shown documents or to provide public documents with restrictions that limit the applicants right to disclose their contents or otherwise dispose of them. In adjudications dated 10, 2003 (reg. 3591-2002) and 11, 2003 (reg. 3781-2002) I dealt with the complaints made by L. E. and E. K. about the excessive time taken by to deal with their requests for access to documents relating to research material and also to the delay in referring their appeals against the decisions on these requests to the Administrative Court of Appeal. In my adjudications I expressed grave criticism of the way in which the university had dealt with these cases. The hearing by the administrative courts into the entitlement of L. E. and E. K. to the requested access to the research material took place in the follow- ing circumstances. In decisions dated February 6, 2003 (case nos. 6208-2002 and 5741-2002) the Administrative Court of Appeal in ordered that L. E. and E. K. were to be allowed the access to the requested research material and that the university was to determine the restrictions that would then apply to pro- tect the interests of individuals according to certain specified provisions of the Secrecy Act. Professor , head of the Section for Child and Adoles- cent Psychiatry in at , who was responsible for the research involved in this case, then lodged a petition for a new hearing of the cases in the Administra- tive Court of Appeal. At the same time he sought inhibition of the judgments of the court. In a decision dated April 4, 2003, the Supreme Administrative Court rejected applications for rehearings on the grounds that even though he was indirectly affected by the judgments of the Administrative Court of Appeal, he lacked any interest in the case that could be acknowledged in law as entitling him to apply for a rehearing of the issues. BILAGA 10 200 6/07 :J O1 When the judgments of the administrative court of appeal had gained legal force, on April 7, 2003, decided on the restrictions that were to apply to the provision of the documents. E. and E. K. appealed against some elements of the universitys decision. In judgments issued on 11, 2003 (case nos. 3395-2003 and 3396-2003) the Administrative Court of Appeal in set aside some of these restrictions. then lodged a petition for a new hearing of these cases as well and also for inhibition of the Administrative Court of Appeals latest judgments. In a decision dated 5, 2003, the Supreme Admin- istrative Court rejected his petitions for a new hearing on the same grounds as for its previous decision. Complaints, enquiry etc. In complaints submitted to the Parliamentary Ombudsmen on (reg. 1568-2003) and on , 2003 (reg. no.1606-2003), L. E. and E. K. expressed criticism of failure to provide the research material after the judgments of the Administrative Court of Appeal of February 6, 2003. They alleged that the university was trying to thwart execution of these judgments. They claimed that the university was once again contravening the constitutional requirement to act without delay in providing public documents and now the judgments of the Administrative Court of Appeal and the decision of the Supreme Administrative Court as well. E. and E. K. supplemented their previous complaints in . In these documents they now also criticized the actions of the univer- sity after the Administrative Court of Appeal issued its judgments on 11, 2003. E. and E. K. referred, for instance, to a letter dated 1, 2003 that had been sent to both of them by , who had been appointed Vice-Chancellor of in the summer of 2003. The main contents of his letter were as follows. In a letter dated 14, 2003, I have asked Professor section for Child and Adolescent Psychiatry in to ensure the documents in question will be available for collection on 19, 2003, so that they can be transported to the uni- versity premises specified in the restrictions that the university decided to impose. That is where you would be able to examine the documents. However, in a letter dated 18, 2003, has notified me that in his capacity of head of the section, physician, researcher and private indi- vidual he does not intend to supply the material requested and does not intend to relinquish the keys to the filing cabinets containing the material itself. In his letter refers the reasons for his refusal, among them customary ethical standards and statutory requirements that apply to medicine and to research. A large number of researchers at different universities in have written to me to state that ethical reasons prevent the release of the material concerned to outsiders without the consent of the participants. They also claim that it is difficult to comprehend fully the impact on future research that release of this material would have. I can, on the one hand, understand ethical grounds for not relea- sing the research material because of the confidentiality he guaranteed those 2 006 /0 7:J O1 BILAGA 10 who took part in his research studies. On the other hand, in its judgment in February the Administrative Court of Appeal came to the conclusion that it is quite clear that release, subject to restrictions, of the requested documents to E. would not give rise to the kind of risk of injury or damage to individual interests that the Secrecy Act is intended to safeguard. is required to comply with judgments and decisions made by Swedish courts of law. The university has therefore undertaken en- quiries into the possibilities of providing you with the opportunity to examine the documents in question despite refusal to release the material. This has involved detailed clarification of the legal situation and also the practical possibilities of gaining access to the material so that it can be moved from the premises in which it is presently housed. The material is stored in locked metal cupboards and the premises are equipped with a vault that can- not be broken into without a great deal of force if the keys are not available. Our enquiries also show that the staff of the units occupying these premises are not going to allow any outsiders to gain access to material. As the universitys Vice-Chancellor I have overall responsibility for all of its operations and its entire staff. In the prevailing circumstances, if any of the universitys employees were ordered to enforce collection of the material and its removal to some other place, it is almost certain that they would be resis- ted by other members of the staff. The mental violence that is more than like- ly to ensue would in itself cause substantial harm to the staff involved and to the university as a whole. It would have a damaging impact on the workings of the university now and for many years to come. than six months ago, senior members of the department concerned wrote to the Vice-Chancellor to inform him that the situation was already critical in all of its units because of the situation that has arisen. Against the background described above I am forced to conclude that has done everything that can reasonably be expected of it to comply with the judgments of the Administrative Court of Appeal. If the university resorts to internal coercive measures to provide you with the material concerned, a number of members of its staff will be harmed as will the operations of the university as a whole in a way that is indefensible in terms of the object of these measures. I have therefore decided that for the moment no further action will be taken within the university organization to provide you with the documents in question. intends to refer refusal to release these documents to . On October 14, 2003, the Parliamentary Ombudsman obtained information from that no complaint had been lodged concerning . On October 16, 2003, information was received from by telephone that the documents concerned had not been released, one reason being that in the opinion of the section involved it was doubtful whether the conditions in the judgments of the Administrative Court of Appeal had been fulfilled. On October 21, 2003, the Parliamentary Ombudsman requested the Vice- Chancellor of to submit an enquiry into and opinion on the measures taken by the university to release the research material in accordance with the judgments issued by the Administrative Court of Appeal in on 11, 2003. The response, dated 4, 2003, submitted by the Vice-Chancellor, , included the following. BILAGA 10 200 6/07 :J O1 The documents in question are stored at the Section for Child and Adolescent Psychiatry at in . The head of this section is Pro- fessor . According to a decision made by the university on April 7, 2003, L. E. is to have access, subject to certain conditions, to the documents requested in the universitys premises at in . On 14, 2003, the Vice-Chancellor sent a letter to in which he was requested to ensure that the documents were ready for collection at 9 a.m. on 19, 2003. When two members of the universitys administrative staff went to the sec- tion on 19 to collect the documents they were not permitted to do so by a member of the staff of the section, who had been ordered by to refuse to release the material. (//). In view of what had occurred, the Vice-Chancellor has attempted to ar- range a meeting with to persuade him to comply with the judgments of the Administrative Court of Appeal. However, this meeting did not take place until October 10, 2003, as , who has partial leave of absence, was abroad. During this meeting expressed his continued determination not to release the material. The possibility of gaining access to the documents with the help of some enforcement agency has been investigated but has not been considered viable, as the documents are already stored in premises rented by the university. However there seems to be nothing to prevent /from requesting enforcement themselves. The Vice-Chancellor regrets that the university has not succeeded in com- plying with the judgments of the Administrative Court of Appeal. As the documents are locked into a vault, in the Vice-Chancellors opinion Christo- pher must himself cooperate with the university to enable L. K. to have access to the documents. On 1, 2003, the Parliamentary Ombudsman was informed by Gun- nar that he had neither taken nor considered any further enforce- ment measures than those accounted for in the universitys response to the Parliamentary Ombudsman. The university had made no complaint to but this was still under consideration. On , 2003, informed the Parliamentary Ombudsman that no documents in this case had been released. The Vice- Chancellor was still involved in discussions with on this issue. , chairman of the board of had expressed the opinion that the case was of such significance that it should be taken up by the board. For this reason it had been placed on the agenda for the board meeting on , 2003, but then postponed until its January meeting on the grounds that the restrictions should be reviewed by the board once more. had also urged the Vice-Chancellor to look further into the question of submitting a complaint to . In view of what had come to light I considered that there were reasons for assuming that misuse of office as laid down in Section 1 of Chapter 20 of the Swedish Penal Code had been committed by officials at Univer- sity and therefore on , 2003, I launched a preliminary investiga- tion into a crime of this nature. I assigned , Deputy Director of the Public Prosecution Authority to conduct this enquiry. 2 006 /0 7:J O1 BILAGA 10 On January 22, 2004, the board of decided both to recommend that the Vice-Chancellor should inform E. K. that the relevant conditions in the judgment of the Administrative Court of Appeal had not been fulfilled and that she was not therefore entitled to access to the research material as requested and also to entrust the Vice-Chancellor with the task of formulating additional restrictions to ensure that L. E. had the justifiable interest in examining the research material claimed in the presentation of the case. On January 27, 2004, , Pro Vice-Chancellor of , informed E. K. that the Vice-Chancellor had determined that she could not have access to the research material in question in view of the con- ditions set by and accepted by the Administrative Court of Appeal. This decision was not accompanied by any information about how to appeal. In a letter dated February 13, 2004, E. K. expressed her opinions on this new decision to the university and said that she wanted her letter to be re- garded as an appeal, unless the decision was to be considered notification of the universitys refusal to execute the judgment of the Administrative Court of Appeal. On February 20, 2004, decided to consider the letter from E. K. as an appeal and after ascertaining that it had been submitted in due time, forwarded it to the Administrative Court of Appeal. E. was concerned, on February 2, 2004, im- posed another condition in addition to those that already applied stipulat- ing that L. E. was to show that his duties for the included reviewing or otherwise acquiring information about the basic material on which the research in question was based. After receiving letters from L. E., on February 10 and February 18, 2004, the Vice-Chancellor made further decisions on this issue in which he con- firmed that L. did not fulfil the condition laid down in the decision of Feb- ruary 2. In judgments issued on 4, 2004 (case nos. 1070-2004 and 1148-2004) the Administrative Court of Appeal in stipulated that the univer- sitys new decisions concerning the entitlement of L. E. and E. K. to exam- ine the public documents were to be set aside. On 6, 2004, , through , the Prin- cipal Administrative Officer, informed the Section for Child and Adolescent Psychiatry that it was to ensure that the documents concerned were made available. announced by e-mail on the same day that he did not intend to cooperate in the release of these documents. On 9, 2004, three of colleagues informed that between 7 and 9 they had destroyed all of the research material in question. (In a judgment issued on 17, 2006, Court sentenced all three officials to a conditional sentence and fines for the grave offence of suppression of documents; Parliamentary Ombudsmans comment). BILAGA 10 200 6/07 :J O1 After conclusion of the preliminary enquiry, on January 18, 2005, to initiate the prosecution in Court of , and on the following charges. In two judgments issued on February 6, 2003 (case nos. 6208-2002 and 5741- 2002) the Administrative Court of Appeal has laid down that L. E. and E. K. are to be allowed access to some of the documents that constitute the research material (known as the Study) kept by in rented premises. The Administrative Court of Appeal stipulated in the judgments that the university was to draw up the conditions required to safe- guard the interests of individuals pursuant to certain defined provisions of the Secrecy Act (1980:100). subsequently specified a number of conditions, against some of which L. E. and E. In judgments issued on 11, 2003 (case nos. 3395-2003 and 3396-2003) the Administrative Court of Appeal set aside some of these conditions. From that date onwards until 7, 2004, when the material is said to have been destroyed, , in his capacity as head of the Section for Child and Adolescent Psychiatry at at , has intentionally disre- garded the regulations that apply to his exercise of office by failing to comply with the judgments of the Administrative Court of Appeal and allow L. E. and E. K. to examine the documents. In this connection has not only refused to release the documents on his own account but also refused to make the documents available to the administration of . During the autumn of 2003 and until 7, 2004, when the material is said to have been destroyed, has intentionally or through negligence disregarded the statutory requirements that apply to his exercise of office by failing to comply with the judgments of the Administrative Court of Appeal and allow L. E. and E. K. to examine the documents. has in this connection failed to ensure that the documents were available for release and in drawing up new conditions and interpreting previous conditions also attempted to prevent L. E. and E. K. from gaining access to the documents. From when this case was discussed by the board of and up until 7, 2004, when the material is said to have been destroyed, , in his capacity as Chair of the Board of , has intentionally or through negligence disregarded the statutory requirements that apply to his exercise of office by failing to comply with the judgments of the Administrative Court of Appeal and allow L. E. and E. K. access to the documents. has failed, in this connec- tion, to take action to ensure that the documents would be released to L. E. and E. K. but on the contrary, together with , in drawing up new conditions and interpreting previous conditions has also attempted to prevent L. E. and E. K. from gaining access to the documents. These offences cannot be considered minor. The judgment of Court