frsrdg · GU04JO1 · 2007-01-01 00:00:00 — In a decision issued on 27, 2005 (case no. B 2894-04) Court sentenced to a conditional sentence and fines and to fines. The court rejected the charges against . In the grounds for its judgment the court included the following observa- tions. The prosecutor has charged with refusing to release the documents to the injured parties after reading the judgments of 11, 2 006 /0 7:J O1 BILAGA 10 The obligation to release the research material had already arisen in February and continued to exist as long as the documents had not been made available. bore the responsibility in his section for issues of this kind. According to , however, the question of releasing the documents was already being dealt with at Vice-Chancellor level in the summer of 2002. The Vice-Chancellors assumption of responsibility for the release is also demonstrated by the fact that it was who issued instructions to (at Sahl- grenska Academy; Parliamentary Ombudsmans comment) about the removal of the documents. As no longer had responsibility for the release of the documents during the period to which the charges apply, he cannot be blamed for refusing on his account to provide the complainants with the documents. The prosecutor has also alleged that refused to make the documents available to the universitys administration. has denied this refusal. own testimony makes it clear that he strongly dis- approved of the judgments of the Administrative Court of Appeal, which he considers incorrect, and that he held and still holds the opinion that the docu- ments should not be released. In his letter to of 14, 2005, stated clearly that the judgments of the Administrative Court of Appeal must be executed and directed to ensure that the documents would be available for collection from 19 and any necessary keys surrendered. On 18, 2005, responded in writing to stating that he was not going to release the material or the keys. The testimonies of (financial controller at the Section for Child and Adolescent Psychiatry; Parliamentary Ombudsmans comment) and show that did not gain access to the material on 19 because of the instructions that had given to . In his e-mail to of , asserts that he had rejected request to remove the documents. In his e-mail to of October 15, explained that he had received a directive about the removal but also that he would never accept removal of the documents. Chris- topher also asserted in an e-mail to of 4 that he had reached a conclusion not to provide the material and had con- sidered in this context the risk that this could lead to its release to L. E. and E. To this can be added the impression formed by own staff, expressed in their petition of 28, that he had decided not to release the research material. All of these circumstances show clearly that had the possibility of making the documents available to the universitys administration but that he refused to do so. has claimed that the universitys administrators agre- ed with him on this issue and that the instructions he received about providing the documents were merely a smokescreen. The possible agreement of the university administration with on the issues relating to secrecy raised in the Administrative Court of Appeal no longer has any rele- vance in this case. After the judgments were issued on 11 the univer- sity administration explicitly instructed to make the documents available and also made concrete preparations to enable their removal. Once the attempt to collect the documents had failed, the university administration continued during the autumn and to work on the issue of releasing the documents. Here it is relevant to point out that in the Parliamentary Ombudsman had criticised the failure to release the documents and that the university administration was fully aware of this. The circumstances referred to here show that the university administ- BILAGA 10 200 6/07 :J O1 ration reacted to the judgments of the Administrative Court of Appeal in ear- nest and that the instructions given to were not the mere smokescreen that he claims them to have been. The information that the individuals participating in the study had been as- sured confidentiality and that release of the material would be in breach of pertains to the issue of secrecy and is therefore of no relevance in this case. Releasing or failing to release the documents requested constitutes the ex- ercise of public office. After the issue had been transferred from his section to Vice-Chancellor level, was no longer responsible for implementation of the measure. His refusal to provide the documents was however an executive measure that immediately preceded the actual exercise of public office and which had consequences for L. E. and E. K. refusal therefore took place in the context of the universitys exer- cise of public office. His refusal must therefore be considered intentional misuse of office. As the Vice-Chancellor had assumed responsibility for the release of the documents, it was the responsibility of to ensure complian- ce with the judgments of the Administrative Court of Appeal. After the Administrative Court of Appeal has issued its judgments on Au- gust 11, 2003, arranged on 14 for a letter on the subject to be drawn up and sent to , in whose possession the material was stored. He also initiated the practical preparations considered necessary for the removal of the documents. Up to this point no criticism can be made of actions. After the collection attempt had failed on 19, there is uncontested evidence, which is also supported by the testimony of , to show that looked into the possibility of seeking the assistance of the landlord and of the . involvement was also considered. He also consulted , a lawyer, and sought the advice of the Vice-Chancellor of and representatives of the . In the light of the situation that had arisen, these measures may, in the short term, also be consi- dered adequate. However, on 1 sent a letter to L. E. and E. K. in which he declared that he had done everything that could reasonably be demanded and that he did not intend to take any further steps within the fra- mework of the university organisation. Even though he stated his intention in the same letter of raising refusal with , these letters give the firm impression that Gun- nar had given up and did not intend to do anything more to comply with the judgments. During the following month no concrete action seems to have been taken on the issue, which can be explained by the attempts being made by to arrange a meeting with , but that his response was that he did not have time to meet his principal befo- re October 10. The contacts that had with the Vice-Chancellor of and representatives of the seem not to have been of the kind that would lead to progress on the issue of release of the documents. Contacts with the landlord provided the information that no extra keys were available and also the assumption that the documents had been deposited in a vault. No further enquiry was made into their whereabouts even though has said that he made an ocular inspection of the documents and should therefore have known where they were kept. It can have seemed likely to that would agree to release the documents at the meeting planned for October 10. 2 006 /0 7:J O1 BILAGA 10 There is therefore no excuse for waiting until this meeting before invoking more forceful measures. During the period from 1 to October 10, 2003, displayed unacceptable passivity in a case in which effective measures should have been taken without delay. In this respect he is guilty of misuse of office. In the opinion of the City Court it was intention to re- lease the documents during the period in question. His offence is therefore not intentional but the outcome of negligence. In determining whether an action or failure to act is negligent the offenders personal circumstances may be taken into account. is the universitys Vice-Chancellor. Stringent requirements have to apply to his ability to deal with administrative issues correctly in discharging his official powers. In view of this and also of the long period that elapsed without the adoption of any forceful measures, the offence cannot be considered a minor one. At the meeting between and on Oc- tober 10, a newspaper article was presented that had been written by Madele- ine , a professor of jurisprudence, in her capacity as Assistant of the . In this article expressed the opinion that the found it diffi- cult to see that the judgments provided any grounds for the release of the material to E. K. has declared that in his conversation with he received the response that E. K. could only be allowed to examine the documents in a project funded by the Research Coun- cil, which was not the case here. In connection with the meeting also handed over the draft of an article written by , a former President of the Administrative Court of Appeal. In the draft it is cla- imed that L. E. and E. K. had misled the Administrative Court of Appeal and that its judgments were correct in substance. The circumstance that one of the parties considers that a court has been misled or that a judgment is for some other reason erroneous can per- mit it to decide whether or not to comply with the judgment. The research material should therefore have been released. In this context, however, it should be taken into account that had received two opinions on October 10 or a few days later on how the judgments of the Administrative Court of Appeal should be interpreted and dealt with. On the whole, these opinions suggested that the judgments of the court may not have required immediate compliance. As the City Court has previously indicated, stringent demands must be made of the way in which exercises his official powers. However, importance must be attached to the situation in which he found himself. The documents in question had for some reason not been released in connection with the of the conditions in . What was called upon to determine in therefore could not be described as a routine release of documents. The opinions expressed by and were those of two well-reputed legal experts who could be presumed to be cognizant with issues concerned. In the view of the City Court, these circumstances taken as a whole mean that did not intentionally act incorrectly or display criminal negligence in interpreting the substance of the conditions that had been set and approved. cannot therefore be considered culpable for his actions during the period from October 10 until the board meeting on . When the question of the release of the documents had been referred to the board of the university and raised at its meeting on , it was rea- sonable for to wait for it to reach a decision. can he be held culpable for his passivity between the board meetings. At the meeting of the board on January 22, 2004, the decision made was that was to notify E. K. that she was not entitled to examine BILAGA 10 200 6/07 :J O1 the research material on the grounds that the conditions accepted by the Ad- ministrative Court of Appeal had not been fulfilled. Even though this decision was based on a memorandum written by in which he cited article, he should not be held culpable of any in- tentional error or criminal negligence in complying with the recommendation of the board. The board also decided at this meeting to give the task of drawing up new conditions before the documents could be released to L. This decision was also based on the grounds provided in memorandum. In this respect had drafted his memorandum with the support of a new opinion written by on January 18, 2004, in which he declared that he could find nothing to prevent the univer- sity from imposing new conditions on L. Here too, no blame may be at- tached to for discharging the task assigned to him by the board. The prosecutor has alleged that from the meeting of the board on , 2003, and onwards failed to comply with the judgments of the Administrative Court of Appeal. The release of the documents was on the agenda for the board meeting in but was adjourned until its next meeting. This adjournment was justifiable in view of the complicated nature of the issues involved. The decisions made by the board on January 22, 2004, were incorrect. As in the case of , the fact that in this complicated situation the board took heed of the opinions expressed by two well-reputed legal experts means that cannot be found culpable of any intentional offence or criminal negligence. For this reason the charge against is to be dismissed. acted with intention. His actions included not only defi- ance of the decision of a court of law but also refusal to comply with the in- structions of his employer. A financial penalty alone would be inappropriate in this case. is therefore sentenced to a conditional sen- tence combined with a financial penalty. For a financial penalty will be sufficient. Two members of the court were of a different opinion and wanted the charges against dismissed on the grounds that the offence was to be considered a minor one. appealed against the judgment of the City Court and moved that, in the first instance, the charges should be dismissed or, secondly, that a financial penalty alone was appropriate. appealed to have the charge dismissed in its entirety. I moved that should be found guilty as charged, i.e. for the entire period covered by the charge and sentenced to a more severe penalty and also that should be found guilty of misuse of office as charged. All parties contested the amendments sought by the others. 2 006 /0 7:J O1 BILAGA 10 In the Court of Appeal the charge against was amended by the addition of the words after 1. The beginning of the third paragraph of the description of the offence therefore read During the autumn after 1, 2003, and until 7, 2004, . The judgment of the Court of Appeal for Western In the judgment issued on February 8, 2006 (case no. B3339-05) the Court of Appeal for Western upheld the judgment of the city court. The grounds for the decision of the Court of Appeal contained the following ob- servations. From the mid-1970s a longitudinal research project in neuro-psychiatry was conducted at that focused on the phenomenon of what is referred to as MBD (DAMP/ADHD) in children. The aim of the project was to cast light on the significance of MBD and related problems from a long- term perspective. The study finally covered 141 pre-school children who were monitored every third year until adulthood. Participation in the study was voluntary. The childrens parents, and later the adolescents themselves, were given certain of confidentiality. The research material, known as the Study, which occupies 22 metres of shelving comprises a large number of records, test results, inter- view responses, questionnaires and video and audio tapes. The research mate- rial contains a great deal of information that is of a sensitive nature for the personal integrity of the children and their next-of-kin. The Study has provided the material on which several PhD theses have been based. The material was stored in the Section for Child and Adolescent Psychia- try, whose head has for a long time been Professor , in the sections locked premises at in . Originally the study was organised and launched by other researchers, but eventually became responsible for its completion. He himself had assur- ed the participants in the study of some degree of confidentiality. 5 The judgment of the Court of Appeal 5.1General observations on the universitys management of the case In its two initial judgments of February 6, 2003, the Administrative Court of Appeal laid down that E. K. and L. E. were entitled to examine the documents requested. In its two subsequent judgments, issued on 11, 2003, the Administrative Court of Appeal decided on the conditions that were to apply in connection with the release of the documents to them. The judgments of the Administrative Court of Appeal therefore settled the question of whether the documents were to be released to E. K. and L. E. once and for all. At the hearing in the Administrative Court of Appeal, the university had the opportunity to present reasons why the documents requested should not be released to E. K. and L. Once the judgments, against which there was no appeal, had been issued in February 2003, whether or not the university con- sidered that they were based on erroneous or inappropriate grounds has no significance. After the February judgments the university was only required to formulate the conditions it considered necessary to avoid any harm that individuals might sustain through release of the material. Subsequently the university had the possibility of presenting its arguments to the Administra- BILAGA 10 200 6/07 :J O1 tive Court of Appeal for the formulation of the conditions it had opted for. After the court had determined which conditions could be accepted, the ques- tion of the terms on which the applicants could be allowed access to the do- cuments requested were also settled once and for all. There was then no scope for the university to undertake any new appraisal of E. K.s and L. E.s en- titlement to access to the documents. During the period referred to in the charges, therefore, it was no longer a question of how the interpretation and application of the legislation on secre- cy but of the judgments of the Administrative Court of Appeal. Their contents were straightforward. letters to of 14, 2003, and to E. K. and L. E. on 1, 2003, show that the university administration had understood that it was incumbent on the univer- sity to release the documents without delay. The promptness required by the Freedom of the Press Act in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the docu- ments. In spite of this, in its interpretation of the conditions and in laying down additional conditions the university has made it more difficult for E. K. and L. E. to examine the documents. The prosecutor has alleged that after the judgments of the Administrative Court of Appeal on 11, 2003, and until 7, 2004, when the mate- rial is said to have been destroyed, , in his capacity as head of the Section for Child and Adolescent Psychiatry, has disregarded the obligations of his office by failing to comply with the judgments of the court and allow L. E. and E. K. access to the documents. According to the charges, in this respect has not only refused to release the documents on his own account but also refused to make the documents available to the admi- nistration of . The research material was the property of the university and therefore con- sidered to be in the public domain. It was stored in the Section for Child and Adolescent Psychiatry, of which was the head. letter of 14, 2003, to which copies of the judgments of the Administrative Court of Appeal relating to the conditions were attached, made it clear to that the material involved must be released. As head of the section, was responsible for making the material available to E. K. and L. E. awa- reness of his immediate responsibility is revealed not least by the instructions that he gave to before the visit of not to allow the university administration access to the material. This can also be seen from the written response sent by to on 18, 2003. Through the university also instructed to release the material to the university so that it could be moved to pre- mises where E. K. and L. E. could examine it. In view of this, the Court of Appeal, like the City Court, does not feel that can be held culpable because he refused on his own account to hand over the docu- ments. However it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university. has protested that he did not consider that there was any serious intent behind the instructions he received from on 14, 2003. Here he has referred in particular to the meeting on 18, 2003, to the fact that did not follow up his visit to the section and that he received no new directive to make the material avail- able. 2 006 /0 7:J O1 BILAGA 10 , however, has stated that on no occasion did he withdraw the instructions issued on 14, 2003, and that it must have been quite clear to that they continued to apply, even thought they were not explicitly repeated. According to , nothing tran- spired at the meeting on 18, 2003, that could have given the impression that these instructions no longer applied or that they were not intended seriously. statements in this respect are corroborated by the Principal Administrative Officer in the Vice-Chancellors office, . They are further borne out by fact that after the meeting on 18, 2003, was given the task of drawing up a com- plaint to on the subject of Chris- topher refusal and that was aware that a complaint of this kind was being considered. In addition, it can be seen from a number of e- mails from to that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions. It has also been shown that when the board met on still considered making a complaint to the disciplinary board. Finally, has testified that at a meeting with shortly after the beginning of 2004, when asked whether he still persisted in his refusal, Chris- topher confirmed that this was the case. All things considered, the Court of Appeal finds that it has been shown that was aware that the instruction to make the material available for the administration applied during the entire period from when he learnt about the judgments of the Administrative Court of Appeal on 14, 2003. It was incumbent upon him to take the actions required to comply with the judgments. has stated that he was never prepared to participate in the release of the documents to E. K. or L. His actions were, in other words, intentional and their result has been that E. K. and L. E. were categori- cally denied a right that is guaranteed by the constitution and that is also of fundamental importance in principle. All things considered, the Court of Ap- peal finds that actions mean that he disregarded the obligations that applied to him as head of section in such a that the offence of misuse of office should be considered. has, however, also objected that his actions should be regarded as pardonable in view of the other considerations that he had to bear in mind. has thus claimed that in the situation that had arisen he was prevented by ethics and research ethics from disclosing in- formation about the participants in the study and their next-of-kin. He has referred in particular to the international declarations drawn up by and also to Convention. The features of the international declarations agreed by categorise them as undertakings that can be considered to take priority over Swedish law. objections on the basis of the contents of these declarations therefore lack significance in this case. Article 8 in Convention lays down that everyone has the right to respect for his or her private and family life, home and correspon- dence and also that this right may not be interfered with by a public authority except in certain specified cases. The provisions of the Secrecy Act are in- tended, in accordance with Article 8 of Convention, to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administra- tion. These regulations must be considered to comply with the requirements in Convention and the judgments of the Administrative Court of Appeal lay down how they are to be interpreted in this particular case. BILAGA 10 200 6/07 :J O1