frsrdg · GU04JO1 · 2007-01-01 00:00:00 — topher objection that his actions were pardonable in the light of Convention cannot therefore be accepted. has also objected that he risked criminal prosecution for breach of his oath of confidentiality, if he released the documents to E. K. and L. E. However, the judgments of the Administrative Court of Appeal had determined once and for all that the Secrecy Act permitted release of the documents. For this reason there was of course no possibility of prosecution for breach of his oath of secrecy, which, in the opinion of the Court of Appeal must have realised. has also stated that he was bound by the of confidentiality he had given to the participants in the study in accordance with the demands that applied for research. These were given in 1984 and had the following wording: All information will be dealt with in confidentiality and classified as secret. No computer analysis that enables the identification of your child will take place. No information has been provided pre- viously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Eastern Hospital and its results will, as for the previous study three years ago, be followed up. A later of confidentiality had the following wording: Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be treated so that nobody apart from those of us that meet you and have direct contact with you will be able to find out anything at all about you. The of confidentiality given to those participating in the study go, at least in some respects, further than the Secrecy Act permits. The Court of Appeal is of the opinion that there is no possibility in law to provide greater secrecy than that laid down in the Secrecy Act and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the of confidenti- ality cited above cannot take priority over the law as it stands or a courts ap- plication of the statutes. objections therefore have no relevance in assessing his criminal liability. Finally, has claimed that his actions were justifiable in view of the discredit that Swedish research would incur and the decline in willingness to participate in research projects that would ensue if information submitted in confidentiality were then to be disclosed to private individuals. The Court of Appeal notes that there are other possibilities of safeguarding research interests, for instance by removing details that enable identification from research material so that sensitive information cannot be divulged. What has adduced on this issue cannot exonerate him from liability. actions were not therefore pardonable. On the con- trary, for a considerable period he failed to comply with his obligations as a public official arising from the judgments of the Administrative Court of Appeal. His offence cannot be considered a minor one. should therefore be found guilty of misuse of office for the period after Au- gust 14, 2003, when he was informed of the judgments of the Administrative Court of Appeal. The offence is a serious one as wilfully disregarded the constitutional right to access to public documents. On the question of the sentence, the Court of Appeal concurs with the judgment of the City Court. 2 006 /0 7:J O1 BILAGA 10 The Parliamentary Ombudsman has alleged that from 1, 2003, and until 7, 2004, when the material is said to have been destroyed, , in his capacity as Vice-Chancellor, has intentionally or through negligence disregarded 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. precisely the Par- liamentary Ombudsmans charge against is that he failed to ensure that the documents were available for release and in drawing up new conditions and interpreting previous conditions he also attempted to prevent K. from gaining access to the documents. Where the actions of before October 10, 2003, are con- cerned, the Court of Appeal concurs with the appraisal of the City Court. Therefore during the period from 1, 2003, until October 10, 2003, because of his passivity, is guilty of misuse of office thro- ugh negligence and his offence cannot be considered a minor one. During the ensuing period the Court of Appeal does not consider that acted with sufficient determination to gain access to the research material either. However, has claimed that no blame can be attached to his actions after this date as he had been shown two articles that gave him the impression that certain additional conditions could be imposed before the material could be released to E. K. and L. The en- quiry shows that for this reason proposed to the board that E. K. should be informed that she was not allowed access to the material because she did not fulfil the conditions that had been laid down and that additional conditions should apply to L. E. has stated that his impression that this was the correct procedure was shared by certain well- reputed legal experts and that he followed their advice. He has also pointed out that the board of the university endorsed his proposal. The enquiry shows that during the autumn sent a number of e-mails to which made it clear that he still con- sidered that he was required to hand over the documents. It has also been shown that at the board meeting in was of the opinion that should be reported to for his refusal to release the documents. testimony makes it clear that at a meeting with shortly after the beginning of 2004 the question was raised of whether he persisted in his refusal to release the material. These circumstances suggest that , on behalf of the university, realised that the material should be released as laid down in the judgments of the Administrative Court of Appeal, but that at the same time, with the support of the two articles, was attempting to find a solution in view of his failure to persuade to hand over the material. If failure to comply with the judgments of the Admi- nistrative Court of Appeal is to be considered pardonable, in the opinion of the Court of Appeal, a great deal more is required than his perusal of the two articles and seeking the advice of their authors. As Vice-Chancellor, had access to internal expertise in the form of the universitys legal officers and the officials on his own staff. It has also come to light during the enquiry that the university turned to the lawyer it normally consulted. has only referred in vague terms to the counsel and points of view he acquired from anyone other than the authors of the two articles. As far as can be seen, no written opinions were sought. All things considered, the Court of Appeal does not find that can be exculpated. does the circumstance that the board endorsed his proposal exonerate him from liability. The Court of Appeal therefore finds that , during the en- tire period referred to in the charges, disregarded, through negligence, his BILAGA 10 200 6/07 :J O1 obligations as Vice-Chancellor by failing to ensure that the documents were available for release. Further, through negligence, has failed to comply with his obligations by laying down new conditions and interpre- ting previous conditions. These offences cannot be considered minor ones. is therefore to be convicted of misuse of office. The sentence imposed by the City Court is, in the opinion of the Court of Appeal, well considered even though the Court of Appeal upholds the charges for the entire period. The prosecutor has charged that from when the question was dealt with by the board of the university until 7, 2004, , 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 Administra- tive Court of Appeal and allow L. E. and E. K. access to the documents. precisely the prosecutor alleges that failed to take action to ensure that the documents would be released to L. E. and E. K. and that on the con- trary, together with , in drawing up new conditions and interpreting previous conditions, he also attempted to prevent L. E. and E. K. from gaining access to the documents. In the Court of Appeal has also denied that he is guilty of misuse of office. He claims that the responsibility for the release of public documents rested with as the head of the agency and that it was not part of his duties as chair of the university board to comply with the judgments of the Administrative Court of Appeal or take any other action to ensure release of the documents. In addition has stated that the only role of the board was to seek information and provide guidance for Gun- nar as Vice-Chancellor. Section 2 of Chapter 2 of the Higher Education Act lays down that the governing body of an institution of higher education is to supervise all matters concerning the institution of higher education and be responsible for the per- formance of its duties. Thus the board is required to decide on all major mat- ters concerning the overall orientation of activities and organisation of an institution of higher education, on its annual reports, background information for budgets and other important reports, on important regulations, certain staffing questions and other significant issues of principle (Higher Education Ordinance, Chapter 2, Section 2). On the whole, other issues are to be decided on by the Vice-Chancellor, who according to Chapter 2, Section 3 of the Higher Education Act is responsible for the management of its activities and is accountable to the board. As the head of an agency, the Vice-Chancellor is to ensure that it operates efficiently and in accordance with the law (Section 7 of the Ordinance). In the opinion of the Court of Appeal, issues relating to the release of pub- lic documents in individual cases must be classified as the kind of administra- tive and executive tasks that the Vice-Chancellor of an institution of higher education is required to deal with. In normal cases, therefore, it is unlikely that the board would be called on to make a decision in cases of this kind. In this case, however, the question was dealt with by the board. The circum- stance that the board then endorsed the measures proposed by is not, however, sufficient, in the opinion of the Court of Appeal, to mean that can therefore be assumed to have become criminally liable for misuse of office. The charge against him is therefore to be dis- missed. 2 006 /0 7:J O1 BILAGA 10 Appeal against the judgment of the Court of Appeal lodged an appeal against the judgment of the Court of Appeal and moved that the charge should be dismissed. The Supreme Court decided on , 2006, not to issue a review permit. The judgment of the Court of Appeal therefore gained legal force. - - - - - - - - - - - - - - - - In addition to the release of the material which was the subject of this pre- liminary investigation, these two cases submitted to the Parliamentary Om- budsmen also involved a number of other issues relating to the Study. One of the letters with supplementary material submitted by L. E. to the Parliamentary Ombudsman in contained another complaint about the way in which the same department at had dealt with another case concerning the release of public documents. Its contents included the follow- ing. In a letter dated 10, 2003, followed by a reminder on 19, 2003, L. E. requested access to public documents dealing with the ongoing appraisal of the research ethics of the study. Two months after his request had been submitted, he had still received no reply. On the other hand, as a result of his request, the department had written to the Chief Ex- ecutive of the . In his work as a paediatric physician for the , L. E. is attached to the Research and . The universitys letter questioned his right to use his office address in his letterhead and an official city envelope. The letter also contained the allegation that he was conducting a mass-media campaign in a markedly aggressive and it claimed that it was common knowl- edge that he was wont to complain about delays to the Parliamentary Om- budsmen. Another letter on this subject was sent to various senior officials employed by the . E. claims that the departments contacts with the had no relevance to the question of whether the documents should be released or not but that the department was attempting to blacken his name with his employers because he was taking advantage of his constitutional right to provide information and because he had requested access to public documents. As can be seen from the account above of the Parliamentary Ombudsmans enquiry into the cases, the Vice-Chancellor of was asked to investigate and submit a statement on what had been said in the let- ters in question. In his response, dated 4, 2003, his statements on this issue were as follows. On 10, 2003, L. E. applied to rens Health to be allowed access to public documents concerning the apprai- sal of research ethics. The address to which he sent this request was Kungs- BILAGA 10 200 6/07 :J O1 gatan 12, i.e. the address of the Section for Child and Adolescent Psychiatry, which is one section of . L. E.s request was dealt with by an employee at the Section for Child and Adolescent Psychiatry. Instead of referring the question of whether or not to release the documents requested to an appropriate official on the staff of , this individual started a correspondence with L. E.s superiors at the where he was employed. The Chair of did not learn of L. E.s request or his reminder of 19, 2003, until the formal request arrived from the Parliamentary Ombudsmen on October 21, 2003. There can be no doubt that members of the universitys staff need to be better informed about public access to official documents, secrecy and the specific requirements that apply to the management of these issues. In view of what has occurred the university intends to take measures to avoid any repeti- tion. The university will also deal promptly with L. E.s request to be allowed access to the public documents concerning the ongoing appraisal of the re- search ethics status of the Study. This request by L. E. was linked to the Study in that it con- cerned the release of all the documents relating to the ongoing appraisal of the research ethics of the Study. As pointed out in the universitys response, the application for the release of the documents should have been forwarded to the university administration so that an official decision could be made. This did not, however, occur and instead a member of the departments staff sent letter to officials employed by the . At the time the universitys response was received, i.e. almost four months after L. E. had submitted his request, the university had still not initiated any real action in this matter. Its management of the request merits grave criticism. E. subsequently submitted additional letters and other documents to il- lustrate the way in which his request for release of the documents was being dealt with, i.e. during the period after the universitys official response. What they revealed for instance that L. E. had still not been provided with the documents requested, at least by , and this was because they could not be located in the university archives raised, for instance, questions about the universitys archiving routines. The material submitted revealed, however, that L. E. had asked the university to explain its failure to transfer the documents to the archives and that an enquiry into this was taking place at the time. In view of this, I did not consider there were sufficient grounds for taking any further action in the matter. What has come to light in other respects in these cases gives no cause for any further measures or statements on my part. -- - - - - - - - - - - - - - - This concludes the cases