frsrdg · GZ04JO1 · 2011-11-16 00:00:00 — On the one hand they want to docu- ment what they are doing and on the other hand they cannot do that because if they do they would jeopardize the aim of the work that they are engaged in. Many public officials, at least in , attach importance to the fact that they serve the common good. That sense of professional pride should be en- couraged. When officials from the old days felt distrusted by the publicity principle this was to some extent understandable. It is important that FOI- laws are perceived as legitimate by the public officials who shall apply and observe them. Therefore FOI-laws must be reasonable, also in the eyes of the govern- ment. They must give room for the administration to do its job. Otherwise they may promote a culture of what we can call oral governance or oral ad- ministration, which from an accountability point of view is counterproduc- tive. Id like to add that there is a danger with all constitutional principles that they become rigid and fundamentalist. On this point there is some room for self-criticism against the Swedish model. A constitutional principle stating a presumption that all governmental infor- mation is public can constitute a threat against protection of privacy. The strong emphasis on publicity has in the Swedish legal system resulted in un- derdeveloped protection of the individual. It is a fact that whereas we have a lot of legal artillery to support free speech and FOI, there are no general pro- visions, neither in the constitution nor in ordinary law, to support privacy. 2 011 /1 2:JO1 B I L A G A 10 formal sense, we do not meet the standards of Article 8 in Con- vention for the Protection of Human Rights and Fundamental Freedoms. This does not mean that privacy is regularly invaded and that there is noth- ing the individual can do about it if it happens. The detailed Publicity and Secrecy excludes a lot of personal information from being made public. And there is of course a data protection law. Apart from that there are effi- cient self-regulating systems working in the media sector. But even when all that is considered, one has to acknowledge that the Swedish legal system strikes the balance between openness and privacy in another way than many other European countries do. This is probably going to change. Swedish legal standards on free speech and access to public information are under twofold pressure. First there are the EU and convention demanding harmonization which means normal European laws instead of Nordic publicity principles. On top of that there are political demands in for legislation against what is considered to be too much media power and too privacy protection; these opinions have always been there but are nowadays boosted by argument, i.e. that has to give in to European standards. In my view, we have good reasons to adapt, but no reason to surrender. If the need for privacy protection has been underestimated in , it has on the other hand been overestimated in other European countries, sometimes even by the courts in and (see the cases of and Bavarian ). In the future most public information will be digitalized. How will that affect access to information? Well, in theory computers make it much easier for the government to provide access to information and for people to find what they are looking for. But so far, we have not seen too much of digitalized transpar- ency. On the contrary, digitalization is mostly used as a pretext to restrict openness, rather than to increase it. I can see a couple of reasons for this. The first is that digitalized information is not the same as information on paper. It is much more accessible. You do not have to read it document by document; you can have it all at once, and there are no limits to what you can do with it. Therefore, a publicity principle becomes a much more powerful tool in the digitalized world than it is in the world of paper documents. As a consequence, the balance between openness and secrecy may have to be re- considered. It is a paradox that when real transparency comes within reach, it needs to be restricted. Another reason is that we have a history of regarding data information not as a possibility but as a threat. In the seventies a special agency to protect people from computerized data was formed in (and in many other countries as well). It was literally designated to protect us against computer- ized information. It was called , and developed a high moral profile. This is more or less my generation; we were moulded in fear of 1984 and what computers could do to us, if the Data B I L A G A 10 20 11 /12 :JO1 was not there to shield us from . A lot of this vanished with the PCs and the Internet. But the underlying suspicion against all computerized information prevails. And it kind of still makes it legitimate to say that sorry, computerized areas are restricted. I think that the greatest challenge in the field of access to public informa- tion is to find a proper balance between transparency and the need to restrict access to digitalized data. So far, at least in , people debating these issues tend to choose side you are either in favour of openness and or of privacy and data protection. Personally I think we should stop talking about data protection. We have passed 1984, we survived; nothing hap- pened. At the same time, friends of transparency need to acknowledge that the accessibility in digitalized registers must be balanced with efficient protection of personal information, when revelation of that information can be harmful to the individual. Access, transparency and propaganda In a European context FOI issues are often discussed in terms of transpar- ency. However, transparency is not altogether the same thing as access to public information. While access consists in offering a possibility for citizens, including the media, to see, transparency means making visible. The former is passive and the latter is . Transparency, in other words, means much more than your files open. It starts already when you set up a public agency. It includes a clear and comprehensible description of the agencys assignment, how it is supposed to function, who is accountable for what etcetera. And it ends with informative and ongoing presentation of the agencys results. The difference between access to documents and transparency is illustrated by the Swedish example. In general public administration cannot be described as particularly transparent. Even if it has better during the last years, much thanks to the Internet which is a marvellous transparency tool, there is still a lot to be done. The attitude has been that we do not need transparency, since we have the publicity principle. The conclusion is that transparency does not necessarily follow from efficient rules on access to public information. On the other hand, transparency measures cannot replace the right to ac- cess. If a governments FOI-policy mostly consists of info sheets, press re- leases, information officers, etcetera, there are grounds for suspicion. Citi- zens, including journalists, access to government files cannot be compen- sated by information policies. On the contrary there is an obvious risk that such strategies will turn into or be perceived as governmental propa- ganda. So there is a need for both passive access and transparency, but there has to be a balance. This is where I like to return to my initial remarks about the division of tasks between the government and the civil society. 2 011 /1 2:JO1 B I L A G A 10 As I pointed out, there is a constitutional framework, applied in most democ- racies. Its meaning is that government can keep its files open, provide infor- mation and encourage people to engage in public affairs. But it shall take or no part in the distribution of ideas and information. According to the framework it is supposed to function like this: Someone has to produce the information people need to hold its govern- ment accountable. It is not a good idea to let the government be responsible for that, since it would be more or less the same as asking the government to control itself. Therefore we have free speech and freedom of information, the fourth estate, to provide us with the necessary tools to hold our ac- countable. It can of course be discussed how well this has been working, over the years and in different countries. On the whole, it has been a successful theory, though. But the final question I would like to raise in this lecture is whether it will still be working in the future. We have used to equate the fourth estate with the media. And we have used to media that fur- nish us with a lot of crap, yes but also with enough serious and high qual- ity information to meet the constitutional needs. The role of the media There are many ways to describe what role the media plays in society. From a constitutional point of view three functions can be observed: to inform, com- ment and examine. The informing function consists of collecting, gathering and presenting (comprehensible) information. Thereby media helps citizens to understand the world they are living in. The commenting function consists of providing a platform where common subjects can be discussed, different voices be heard and opinions be articulated. This platform is indispensible for the democratic dialogue. The examining function consists of critical investi- gations into all kinds of social phenomena that are of interest to the public. In this capacity media serves as an independent audit agency. When we discuss FOI, we presume that professional journalists in a more or less institutionalized media sector will take care of all this. It is a prerequi- site for the above mentioned division of labour between the government and civil society. In fact the FOI-concept cannot be fully grasped without in- volving journalism as an essential part of it. As said, access to public documents does not require any activity from the government. It is to some extent an end in itself; a government that keeps its files open to the public shows that it has nothing to hide, which makes it trustworthy. But at the end of the day, the documents must also actually be asked for, read and used as a source of information; otherwise openness will lose a great deal of its meaning. Who will do that? In the Swedish experience, individual citizens rarely practice their right to see public documents. Most citizens never use it at all, although many of them know their right and will refer to it if they have an explicit interest to see a document, for example when a neighbour has applied for a permit B I L A G A 10 20 11 /12 :JO1 or in other matters which concern the individual personally. In other words, the public does not exercise this right in such a way that it can serve as a watchdog. Of course, organizations of different kinds can use it for those kinds of purposes, but apart from that, the watchdog function is left to jour- nalists. In sum, the FOI-concept does not work without journalists practicing it. Concretely, journalists collect and information from public records and present it to the citizens in a comprehensible way. By doing so they also indirectly supervise that the rules of openness are correctly applied and force public agencies to uphold well functioning routines for handing out informa- tion. The constitutional balance reconsidered? In the last ten-fifteen years or so, the economic pressure on traditional media has gradually increased. What I see is a market turning away from quality journalism because it is not profitable enough. If this continues we might reach a point where the described role of the media is no longer carried out efficiently enough. As a result the balance between government and civil society must be reconsidered. In that case governments will have to take greater responsibility in order to secure that citizens can get good information, that there are well functioning platforms for public debate and that independent investigative journalism is being conducted. In opposition to this somewhat pessimistic perspective one can of course put ones hope in the Internet, saying that we do not need pa- tronizing old media anymore; on the World we can all be jour- nalists and perform the role of the fourth estate. It would be nice to share that optimistic feeling, but personally I doubt that professional journalism can be replaced that easily. For an orthodox believer in freedom of speech it might be hard to reconcile with the idea that government must take a more part in this field. How- ever, the aim of a principle must be more important than the principle itself. And besides, the principle is not always strictly applied. The clearest example of this is the different forms of public service media that already exist in many places. My conclusion is that modern should not be restricted to grant- ing passive access to information; they should also contain regulations on transparency, forcing public agencies to secure that information is not only available but also spread to the public. In the best of worlds the distribu- tion of ideas and information may not be a task for the government, but that is not the world we are living in. A modern democracy requires informed citi- zens. If this common interest cannot be met otherwise, it has to be done with the help of public authority.