frsrdg · GZ04JO1 · 2011-11-16 00:00:00 — The legislation enables to make placements in custodial facilities if there are exceptional grounds for doing so. This provi- sion is invoked in connection with transportation. Such extensive application is not compatible with the wording of the statute. There are signs that the provision is applied too often. The main reason for this extensive application appears however to be that the need of transportation placements is consid- erably greater than predicted by the legislators. The legislation should be reviewed. 2 011 /1 2:JO1 B I L A G A 10 It has come to light that the duration of interventions is, on the whole, too long. In the travaux préliminaires to the act there is reference to a few hours or one night: in practice placements are often for several days and sometimes almost one week. It is indefensible for someone who has neither committed nor is suspected of a crime to be deprived of in this way. merits criticism for the shortcomings that exist. Authority to decide on placements in custodial facilities Placement in a custodial facility is the most far-reaching decision that can be made in the operations of the removal centres. For reasons of legal security they should be made by specific officials. At a number of removal centres, however, case officers or in some cases even hourly paid employees may make decisions of this kind. Authority has been delegated far too extensively. The routine adopted merits criticism. Review of decisions on placement in correctional facilities Individuals placed in criminal custodial facilities are visited by the staff of removal centres. The aim is to establish whether the detainee may be returned to a removal centre. The enquiry reveals that this procedure has a number of shortcomings. It is viewed as informal and unable to guarantee the legal rights of the individual. The obligation to review decisions on placement in correc- tional facilities should be laid down in law. Until this has been done, should ensure that the necessary routines exist and are complied with. During the inspections it was noticed that a number of individuals have remained in remand detention centres even though the deci- sion to place them in a criminal custodial facility has been revoked or for good reasons should have been. merits criti- cism for this state of affairs. A relatively large number of searches are made at removal centres. The rou- tines adopted are not compatible with the legislation or with the guidelines in the Swedish Migration Boards manual on foreigners. cannot escape criticism for this. This criticism should, however, be assessed from the point of view that these security searches are superficial and involve no particular violation of integrity. The legislation should be reviewed. Confiscation of personal property The removal centres apply the provision on the confiscation of personal prop- erty in different ways. cannot escape criticism for this. B I L A G A 10 20 11 /12 :JO1 During the inspections it could be seen that many written records of both decisions and working notes were missing. In a number of cases documents had been filed incorrectly. At no centre were there written records of the ma- terial on which decisions had been based. It was often difficult to trace the different stages of a case on the basis of the written records. The overall pic- ture is so disturbing that must be criticised for the lack of orderliness. In the area of health care a number of problems could be observed that can partly be attributed to the fact that the county councils are the accountable authorities while the responsibility for treatment and supervision of detainees lies with . Nothing has come to light in the enquiry to show that the operations of the removal centres fail to comply with the current legislation in other areas. Review of the legislation is needed in several respects. This adjudication is therefore being forwarded to the in the Government Of- fices for its information. To sum up, the enquiry has led to a number of observations of shortcomings and potential improvements. Criticism is expressed of following points. merits extremely grave criticism -for the placement of detainees who are a danger to nobody but themselves in remand detention centres. -for the erroneous application of the regulations concerning the placement of detainees who constitute a safety risk in criminal custodial facilities. -for the routine placement in cells or remand detention centres for longer periods than intended by the legislators on grounds related to trans- port arrangements, -for the delegation of the authority to make decisions about the placement of detainees in criminal custodial facilities to far too low a level, -for the continued placement of detainees in remand detention centres even though the legal grounds for doing so no longer apply, and -for the lack of systematic written records. 2 011 /1 2:JO1 B I L A G A 10 -for the lack of the requisite legal basis for the search routines applied at removal centres, and -for discrepancies in the application of the regulations on confiscation of personal property of detainees. B I L A G A 10 20 11 /12 :JO1 Access to public documents Lecture held by Parliamentary Ombudsman on 3 2011 in at a conference arranged by for Human Rights. It is not always clear what freedom of information means. It seems to me as if it has changed its content over the years. In the old sense, it was more or less a consequence of free speech if there was a right to speak, there was also a right to listen. At one time freedom of information was used as a wider con- cept than freedom of speech (or expression). It was then somewhat tarnished with efforts to redefine the traditional meaning of free speech. Later on, free- dom of information got some content of its own. It could for example protect the right to possess technical devices for receiving radio and television trans- missions (radio sets, television sets, antennas etcetera). In the modern , it means much more than that. The abbreviation FOI is normally used in connection with laws that give citizens a certain right to see public documents. One of the aims of FOI-laws is to make it clear that public administration is public, and should therefore be accessible for every- one. This is sometimes expressed in terms of ownership: public documents cannot be regarded as something that belongs to the administration; they belong to the citizens. In my opinion, it is misleading to speak about owner- ship in this context. The latest step in developing or changing the meaning of freedom of information is concepts questioning the whole idea that information can be owned (, Wikileaks). Freedom of information then means that you have the right to information that is held by someone else and to do what you like with it. From a civil rights point of view that is a rather complicated con- cept, to say the least. I think it would be preferable if we when discussing these matters could move away from the sometimes a bit fluffy human rights doctrine and instead just ask ourselves: what is it that we want and how can it be achieved? The need for access In a democracy the need for access to public documents is self-evident. Its basis one man, one vote, in general elections requires citizens that are well informed about public affairs or, at least, a possibility for those who wish to inform themselves to do that. The arguments for open government can easily be elaborated. They are well summarized in the preamble of on Access to Official Documents. It states, inter alia, that exercise of a right to access to official documents helps the public to form an opinion on the state of society and on public authorities. According to the preamble it also 2 011 /1 2:JO1 B I L A G A 10 the integrity, efficiency, effectiveness and accountability of public authorities, and it thereby helps to affirm their legitimacy. In this sense access to public documents is a tool for accountability and trust. Its purpose is to strengthen public opinion as a guardian of all forms of public authority. It has more to do with fair and effective governance, than with human rights. It is of curse a human right-matter, as is for example the Rule of and the principle of ; it supports human rights, and is an indispensible prerequisite for their protection, but it is not a human right in itself, at least not in the natural law-sense. With this instrumental view the argument of ownership also becomes less relevant. Citizens should definitely have the right to look into public records, but not because they own the information. A governmental task? How can a society with informed citizens be achieved? Is it a governmental task? Or should it be left to the market? the centuries, a certain division of labour has developed between the State and the civil society in this field. Its meaning is that government shall take or no part in the distribution of ideas and information this is left to the civil society, including the market. It can be discussed whether this de- rives from a well contemplated constitutional ideology or if it is just a result of a coincidental democratic evolution. In any case, this division of tasks is a fact. It is clearly reflected in the Montesquieu-inspired metaphor where the press was called the fourth estate. It can also be traced back to the first amendment to the US constitution, which laconically states that Congress shall make no law abridging the freedom of speech, or of the press. The role of the fourth estate has in practice been carried out by what we nowadays call the media. That has in turn led to the misconception that the media is the fourth estate. In my mind, it isnt. In a constitutional sense, the fourth estate is freedom of speech in itself, including freedom of information. And one of the consequences of the constitutional fourth estate-doctrine is that governments shall as a matter of principle refrain from interfering with freedom of information. In other words, it should not be a governmental task to safeguard that everybody gets informed about public affairs. However, the State has a responsibility to monitor the constitutional bal- ance. If the system does not function the way its supposed to do, measures have to be taken. I will return to that in my final remarks. The development of FOI-laws Friends of transparency often sound disappointed. Coming from a country where a legal right providing access to public documents was first granted already in 1766, I can share that feeling. Worldwide, the development to- wards transparency can seem tardy. B I L A G A 10 20 11 /12 :JO1 But there are encouraging facts. 25 years ago very few countries had any legislation about freedom on information at all. It was a small and distin- guished group: the Nordic countries, the US, , the , , , and maybe one or two more. Today, the picture has changed. In a study from 2008 the concluded that 45 out of its 56 member states by then had some kind of FOI-law. And two years ago presented its Convention on ac- cess to official documents. It is a rather ambitious and promising international legal instrument. Of course, it remains to be seen what effects it will have. So far it has only been ratified by three member states, two of them being Nor- way and , and the third being . But on the whole, these examples show that in recent decades there has been a fast development. The need for openness is nowadays more or less generally recognized. That is a great step ahead. Experiences from an old-fashioned model When discussing issues concerning access to public documents Swedish law can serve as a frame of reference. There can be no doubt that the Swedish experience with open government is of interest for those who contemplates FOI-legislation. The Swedish law on access to public documents is very old, much older than the modern . Among its advantages is of course that centu- ries of practice and experience offer stability. On the downside it should be recognized that at the age of two hundred, you face the risk of geriatric prob- lems. The ability to keep an open mind towards alternative solutions and to adapt to changes might be affected. I want to have it said once and for all that there are definitely other ways of organizing open government than the Swedish model. In other words, the purpose of using Swedish law as reference is not to impose it on others, but to offer perspectives and food for thought. first press law was passed in 1766. Most of its provisions dealt with the right to access and print documents from the government and the courts. After political turmoil the law was some years later abolished, but in 1809, some two hundred years ago, a pre-democratic revolution took place and the principles of 1766 were reinstated. Since then law on access to public documents is included in our Freedom of the Press Act, which is a part of the constitution. Why did we get this FOI-lookalike legislation so early in history? The short answer is that in the early days of press freedom, printed matter to a large extent consisted of content from public documents. It was common, for example, that parties in legal disputes had arguments and decisions from court proceedings printed and circulated. At the time, press freedom, at least in , seemed more or less pointless if you were not allowed to copy content from public docu- ments. And to do that you had to have access to these documents. 2 011 /1 2:JO1 B I L A G A 10 (The somewhat lengthier answer is related to the fact that the law in 1766 was adopted in a period when the country was in practice governed in a par- liamentarian way. The two political parties that where competing for power found a common interest in government files open.) The heart of Swedish FOI-law is a principle, very well known to most citizens in Swedish its called offentlighetsprincipen. The publicity principle would be a straight but not very idiomatic translation. On the other hand, its more or less hopeless to find a proper word in English, since the principle is both complex and unique and in that sense not translatable. So lets call it the pub- licity principle, even though it might sound a bit awkward. Ill try to explain what it means. Above all its a general idea, an ideology with the same influence on the legal system as the right to free speech. concretely, it states a presumption that all documents held by public authori- ties are available to the general public. This applies to every public institution, except to the royal family (which, by the way, reflects that the Swedish king has no power). Access can only be denied according to secrecy provisions specified in law. And when I say specified I mean specified. The rule of law is here applied with the same scrutiny as in criminal cases. Therefore a person who asks for a document has nothing to prove, it is al- ways the government or the agencies that have to show legal grounds for withholding information. Had this principle been a part of ancient Roman law, there would no doubt have been a Latin proverb expressing it. I have, to my satisfaction, noticed that Convention on Access to Public Documents in its preamble recognizes a principle of the same kind, whereas less satisfying the EU-regulation on these matters lacks such a principle. The publicity principle is supported by very detailed legislation and by judi- cial institutions. As I have already mentioned, it is expressed in the constitu- tion, where a comprehensive chapter is devoted to it. In basic law there is a Publicity and Secrecy , with provisions regarding practicalities as how to answer requests, duties to inform an applicant of the right to appeal etc. The law also contains the very important regulation on how public documents must be registered. To avoid misunderstanding it should be stressed that the Publicity and Se- crecy includes a good number of security rules, and that new ones are added regularly. In other words, the publicity principle does not mean abso- lute transparency, far from it. The regulation is formalistic and sharp. It gives government and agencies very discretion. A person whose application is denied can appeal in court; its free of charge and you dont need a lawyer to do it. Appeals are common and often granted. In practice, it can be enough to declare an inten- tion to appeal. When agencies are faced with the risk and nuisance of court proceedings, they now and then choose to release the document. It is a sig- B I L A G A 10 20 11 /12 :JO1 nificant fact, that while it is common that agencies and officials are held ac- countable because they have not respected the publicity principle, it almost never happens that anyone is brought to for giving out too much in- formation. So, if you are a public official and want to stay on the safe side, its often better to release a document than to try withholding it. It can be added, that Swedish officials have a constitutional right to communicate anonymously with journalists; in many cases this right includes revealing matters that are withheld from the general public according to secrecy legisla- tion. Another important institution, alongside with the courts, to supervise the publicity principle is the , the JO. Im one of four JOs, and I spend quite a lot of time with questions regarding access to public in- formation. Mostly people are complaining about agencies who are not an- swering requests immediately; normally you have a right to see the document or get a refusal within 24 hours. serious cases can concern government officials asking questions about the applicants identity, making queries on the purpose of the request or even trying to reveal media sources. Many of my clients are journalists, complaining about secrecy or bureaucracy in central or local government. We also make inspections. One of the things we carefully supervise is that documents are properly registered. It cant be said often enough, that registra- tion is the key to open files. When an agency fails to adhere to registration- rules, there are reasons to suspect that the there might be something rotten in its administration. There is a well known example, when the minister of Jus- tice had to resign after it was discovered that she had omitted to register a letter. The content of the letter was embarrassing for her, but the fact that it hadnt been registered strongly contributed to her fall; it was regarded as a fingerprint, proving that she had tried to hide her actions from public scrutiny. The need for control has practiced the principle of open government files for some two hundred years by now. One could think that after such a long time it ought to function by itself, without supervision. As a can tell you it does not. I am quite convinced that if we were to take away the courts and the ombudsmen, open government would soon be choked with bureaucratic weeds. I would like to elaborate a on this. What did the public officials back in the early days think about the pub- licity principle? Well, they didnt like it. Being forced by law to hand out what they regarded as their documents to members of the public who were then free to print and publish them was perceived as a sign of distrust. They saw themselves as accountable only to the king and found it more or less appalling to be scrutinized by public opinion. In that respect, they do not differ all that much from some of their colleagues of today. 2 011 /1 2:JO1 B I L A G A 10 Im rather convinced that most people are in favour of open government. If we apply metaphor and put ourselves under the veil of igno- rance, all of us would like to live in a society with free speech and freedom of information. The problem is that in reality people have different lives, histo- ries, occupations and interests. If public officials do not love FOI-laws, it is not because they are a special kind of people; it is because there is something in the role of the public official that makes this kind of transparency uncom- fortable. Personally, I have had many occupations and assignments, some on the public side, some on the private side and some inside the media. I have no- ticed that when I change position my attitudes tend to change as well. Not my values, not my views, but my attitudes. That way I have come to understand public officials who cannot express any warmer feelings on FOI. The public- ity principle is something they have to live with. But from time to time it is a formalistic nuisance that interfere with their work. It can now and then seem quite irrational, and it happens that odd people use it just to annoy an agency they do not like for very personal reasons. In the daily life of a public official, the principle is basically bad news, incisively put. The most important reason why Swedish public officials adapted to the publicity principle, despite their more or less negative attitude, is that they had to. If they obstructed they were brought to court by the , convicted and fired. It is natural that those who work in public agencies are somewhat reluctant to the idea that they have to perform their duties in public. It would be naive to trust that officials would invite people to look in their files if they were left to choose for themselves. Therefore, FOI-legislation needs to be supported by firm and rather formalistic control that does not give the bureaucracy any discretion. This does not mean that education and other softer ways of influencing at- titudes are useless. Obviously, there are more modern ways of implementing legal norms today than in the early nineteenth century when JO regularly prosecuted public officials. But basic principles in FOI-laws still need protec- tion by courts and ombudsmen. Another conclusion is that there is need for non-governmental control. For example, transparency organizations fill a very important function. Most important of all is probably supervision by the media. This can be fulfilled both by reporting on how government and public officials live up to their FOI-obligations in general and by journalists using citizens right to demand access to documents in their work. The need to be reasonable The publicity principle has given rise to some discussion as to whether it might cause side effects that are not beneficial. Ill give an example to illus- trate what I mean. B I L A G A 10 20 11 /12 :JO1 In the EU used to be regarded as a bad example when it came to transparency. One of the most common arguments against entering the union, which we did fifteen years ago, was that its administration was so secretive. However, in the late nineties the director-general of the was participating in a committee that investigated the affairs of Commission at that time. After the publication of the commit- tees report and all the other commissioners resigned. When the Swedish member of the investigative committee came home she expressed surprise, but also admiration, over the fact that the files and documentation of what the commission had been up to, was so comprehensive. This, she con- cluded, would not necessarily have been the case in . I believe that to be true; I have served in several investigative committees, and my impression is that the closer you come to the heart of central government, the less docu- mentation is there to be found. In other words, there is a risk that FOI-requirements lead to less documen- tation. Personally I think that this risk has been underestimated in . In a wider perspective it must be considered that the attitudes of public of- ficials will be affected if they find themselves more or less forced to refrain from putting important information on paper because of the risk that it may become public according to FOI-laws.