frsrdg · H104JO1 · 2013-11-13 00:00:00 — Summary of the adjudication: A number of similar complaints from journalists dealing with the failure of the Government Offices to reach decisions about their requests for the provision of public documents gave rise to a joint enquiry. This reveals shortcomings in the Government Offices organisation, allocation of responsibilities and routines that have contributed to disregard of the stipulations of the Freedom of the Press Act on the provision of public documents without delay on repeated occasions. The enquiry suggests that these are shortcomings that are fundamental in nature. The structure of the Government Offices is not adapted to the principle of public access nor to the changes in the organisation of the ministries that was implemented some time ago. It would therefore appear that applications that do not result in the immediate provision of the documents requested can end up in a no mans land and are circulated without it being possible to hold any official or minister to account for the long time taken to deal with them or for other shortcomings that encroach upon the right to insight guaranteed to individuals or the mass media by the constitution. The view of the Government Offices appears to be that these routines are acceptable. For this reason the adjudication lays stress on the particular importance of respect for the right to public insight by the Governments own officials. Without it, there is a major risk that other public authorities will consider that they too need not comply strictly with the constitution, which in the long run would pose a threat to the principle of public access. Four separate complaints had been submitted to the Parliamentary Ombudsmen from journalists concerning applications to view transcripts from the Government Offices administrative system, mainly its accounting system. These complaints raised similar issues and have therefore been dealt with together. One complaint was made by , , two by , Nyhetsbolaget/TV 4-group and one by , . The complaints of Örstadius and are dealt with in this adjudication, while complaint, which also concerns other issues, is treated separately (cf. 4506 2012). An account of the complaints will be presented initially together with the response to them submitted by the Government Offices and the rest of the enquiry that the different complaints gave rise to. This will be followed by a presentation of the legal provisions and the statement from the Government B I L A G A 10 20 13 /14 :J O1 Offices about the organisational procedures that apply in cases of requests for documents. The adjudication concludes with an appraisal of what has come to light. It begins with a section on the general issues that the enquiry has raised (routines in the Government Offices, the obligation to compile information from public documents and what the requirements are for accepting a delay in their release with reference to the need to assess their confidentiality status). An appraisal is then made of the way in which the individual cases in the complaints have been dealt with. Finally an overall adjudication is presented. 1 (reg. , a reporter working for , complained that on he requested documents from the Government Offices but that when he submitted his complaint – 30 January 2012 – he had still not received them, despite repeated reminders by both telephone and e-mail. The request he submitted read as follows. I hereby request a list from the Prime Ministers Offices accounting system for internal and external entertainment. I would like it to reveal at least the voucher numbers, names of companies/voucher descriptions, dates and amounts. Preferably also the public authorities incurring the expenditure/accountability codes/project codes. presented the following justification for his complaint to the Parliamentary Ombudsmen. During the last year has encountered unacceptable delays in response to requests to the Government Offices. In the spring of 2011 my colleague requested all the PR releases from all the ministries. It took the Ministry for Foreign Affairs, for example, more than three months to provide them. I also note that several of my fellow reporters feel that on the whole it is taking longer and longer to get documents from the Government Offices. In 2010 I checked the way in which all the government agencies dealt with the principle of public access by requesting an e-mail. The Government Offices failed to pass this test by claiming that the e-mail did not exist, even though they had responded to it. My request for the provision of entertainment costs at the Prime Ministers Office did not involve the receipts themselves, merely a list of them. The accounting system has been designed to provide simple transcripts of this kind and it should not take more than a minute to produce them. As I did not request the receipts themselves, assessment of the confidentiality status of the information should not have taken much time. Here is a pointer to how long it has taken to deal with requests for similar documents from other public authorities: The Riksdag (all the entries in the accounts of for ), – three hours for Education (all entries in the accounts for a three-month period), – 37 minutes SL, Public Transport (entertainment), – one working day National Historical Museums (entertainment), 16 2011 – two working days 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 Swedish Armed Forces (advertising, printing costs and PR), – seven working days County Authority (entertainment), 14 January 2011 – one working day. Authorities where the confidentiality status is high (Swedish Armed Forces and County Authority) have, in other words, released files from their accounting systems relatively rapidly. Monitoring the work of highest executive authority – the government and its offices – is an important task for the media. For this reason I would like the Parliamentary Ombudsman to review how the Government Offices apply the principle of avoidance of delay – in both the cases I have referred to here and generally. The Government Offices were asked to look into the complaint and submit a statement. Its response (from the Director-General for Legal Affairs in the Prime Ministers Office, ) stated that had been contacted a few days after his request had been submitted and asked for clarification of the period for which he wanted the information. The Government Offices continued: The Government Offices then appraised what possibilities existed for complying with request and began the work of compiling the information from its accounting system and assessing its confidentiality status pursuant to Section 2 of Chapter 15 of the Public Access to Information and Secrecy Act (2009:400). As the material was so extensive, appraisal of its confidentiality status was also timeconsuming. Two transcripts with the information requested were supplied to on 14 February 2012. Some of the information in these documents was considered subject to confidentiality pursuant to Section 2 of Chapter 15 of the Public Access to Information and Secrecy Act and was therefore not disclosed. The Government Offices concluded by offering the following appraisal. It took just over two months to deal with the request from for a list from the Prime Ministers Offices accounting system concerning internal and external entertainment [the time spent was eleven weeks, Parliamentary Ombudsmans comment]. The information requested could not be found in an official document that had already been drawn up but to be able to comply with his request the Government Of- fices produced two compilations for . In order to assess the confidentiality status of the information in the compilations it was necessary to locate and go through a large number of the documents on which this information was based. Not until then could both documents be supplied, with some of the information redacted. This request therefore required a great amount of work in locating the documents and then assessing the confidentiality status of the information they contained. In his comment on the statement from the Government Offices included the following: The Government Offices write that the information requested could not be found in an official document that had already been drawn up and the authority expresses itself in terms such as to be able to comply with his request. The document is not as complicated as it sounds. This is an ordinary ledger for one account, information that every accounting system on the market can produce in a few seconds. In my complaint to the Par- B I L A G A 10 20 13 /14 :J O1 liamentary Ombudsmen I made it clear how other public authorities (including the Swedish Armed Forces where high confidentiality status applies) responded very rapidly. In this case the Government Offices supplied me with seven pages, whose confidentiality status had therefore been assessed. If doing so takes more than two months, then I can only deplore the authoritys inefficiency. In addition, only one or two letters had been redacted in only a few places. I was provided with an additional four pages but in principle these only contained the date, cost item and amount. Here it cannot possibly have taken more than a few minutes to assess the confidentiality status, as no detailed information was included. Supplementary information was requested from , Deputy Director and acting Administrative Director of the Prime Ministers Office. She stated that in order to provide the information requested by a number of searches had to be made of the computer systems in two different ministries, which took some time to undertake. Producing the information requested involved routine measures, however. The main reason why it had taken such a long time to deal with the request was the comprehensive appraisal of the confidentiality status considered necessary before the information could be released. 2 (reg. , a reporter working for Nyhetsbolaget, complained that an e-mail she had sent to the on 28 February 2012 had included a request for telephone logs relating to the Minister of , a state secretary and two directors. On 8 2012 she was told that her request to be provided with the telephone logs had been sent on to the Administrative Department. At the beginning of April she was notified that her request had been forwarded from there to the Prime Ministers Office. When she contacted the Prime Ministers Office she was informed by the official dealing with the request that he did not know when a decision was going to be made or if it was to be made by an official or in Cabinet. When she submitted her complaint to the Parliamentary Ombudsmen – – she had still not received what she had requested. summed up by saying: Two months have now elapsed since I requested a public document and still no decision can be expected in the near future. This is a flagrant breach of the stipulations in the Freedom of the Press Act that public documents are to be provided as quickly as possible. I consider it particularly grave that it is the Government itself that is contravening the constitution, not least in view of the fact that no appeal may be made against its decisions. The Government Offices were asked to look into the complaint and submit a statement. The Government Offices () stated the following. contacted the Government Offices by e-mail late in the afternoon of 28 February 2012 requesting a journal of the incoming and outgoing mail from the head of the prosecution unit, the head of the unit for criminal prosecution and international judicial cooperation, , State Secretary, and also , the Minister of , for the 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 period from until as well as for the period from until the present. Her request also included the following: I would also like to request telephone logs, landlines as well as mobile phones, for the same individuals for the corresponding periods [] In addition I would like to request desk diary notes for the same individuals during the periods listed above. On 8 2012 was informed by the that the lists from the Ministrys journal she had requested had been made available for viewing in the premises of the Government Offices. Her request for telephone logs had been forwarded to the Administrative De- partment as they were not processed by the . There were no other public documents that were covered by her request. What remained outstanding from request after 8 2012 consisted of telephone logs for the head of the prosecution unit, the head of the unit for criminal prosecution and international judicial cooperation, , State Secretary, and also , the Minister of . These were to be provided by the Administrative Department, which manages the technological system, and by the Prime Ministers Office. Assessing the confidentiality status of these logs was complicated. The Government issued a decision without any prior official ruling. This decision, dated 3 2012, was to reject the request as the information in the telephone logs in the of the Government Offices was subject to secrecy pursuant to Section 2 of Chapter 15 of the Public Access to In- formation and Secrecy Act (2009:400). The Government Offices concluded with the following assessment of the way in which the request for disclosure of the telephone logs had been dealt with. [] with regard to this aspect of the request, two months elapsed between its receipt and the Governments decision on the matter. The request involved a number of individuals both in and close to Government itself, all of them with different areas of responsibility, and appraisal of the confidentiality status involved was not uncomplicated. The Governments decision to reject the request was attached to the response. comment on the statement from the Government Offices in- cluded the following: The basic material for the telephone lists was produced relatively quickly – if the context is taken into account. The Government Offices persist in maintaining that it was appraisal of its confidentiality status that was so extensive and time consuming. My impression is that it was not appraisal of the confidentiality status that was protracted but that in fact two months were spent trying to avoid coming to a decision, which was not reached until a complaint was submitted to the Parliamentary Ombudsmen. In other words, it was not complying with my request that took so long but the fact that nothing was done about it and it was shuttled round to various officials who had no mandate to assess the issue or even to tell me when a decision could be expected. For the Government Offices the decision involved a matter of principle. It did not review each telephone number separately, which would have explained the delay. 3 (reg. also complained that on 29 2012 she requested lists of transactions in a number of accounts in the Government Offices accounting system. This request concerned all the ministries. When she submitted her B I L A G A 10 20 13 /14 :J O1 complaint – 2 2012 – she had still not received what she had requested. She repeated what she had said when summing up the first case. The e-mail correspondence between and the Government Offices revealed that on the Government Offices contacted her to ask what period the request concerned. In addition, it transpired that on the Administrative Department informed that responses were still awaited from two ministries and that she would be contacted when there was any material to provide. Information was requested orally from the Government Offices through , Desk Officer in the Administrative Department, who provided the following information. The staff working with financial and salary routines in the Administrative Department are often listed as the case officer dealing with requests for the provision of information from the Government Offices accounting system. As a rule the case officers can produce what has been requested rapidly. The case officers have no influence over when the information will be made available, however, as confidentiality status is appraised by the ministry concerned. When a ministry has made its confidentiality appraisal, the documents are returned to the case officer, who forwards them to the Administrative Departments information section, which in its turn provides the documents to the individual who has requested them. stated that the day after he had been registered as the case officer dealing with request he sent the transaction lists she had asked for to the different ministries so that they could review their confidentiality status. On 16 2012 the request was with the Prime Ministers Office, which had still not completed its confidentiality appraisal. The Government Offices were therefore requested to look into the matter and make a statement about the complaint. The Government Offices () stated the following. contacted 2012 to request disclosure of lists of transaction in a number of accounts in the Government Offices accounting system. The lists requested by were to include information about the date, voucher number, supplier and cost centre. On the Government Offices contacted to ask for clarification about what precise periods she was referring to. The lists of transactions that were produced by the financial administration system were extensive. As this material was so comprehensive, confidentiality appraisal was also time-consuming. And as the transactions listed involved all of the ministries as well as the Prime Ministers Office, the Government Offices decided that the documents should be provided collectively in order to enable uniform appraisal of their confidentiality status. The lists of transactions were supplied to on 13 2012. Some of the information was considered to be subject to confidentiality as laid down in Section 2 of Chapter 15 of the Public Access to Information and Secrecy Act and was therefore redacted. It took just over two months to deal with request for the disclosure of lists of transactions from the time it was submitted until the Government Offices provided the documents [the time taken was eleven 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 weeks, Parliamentary Ombudsmans comment]. The request concerned a number of accounts and involved all of the ministries as well as the Prime Ministers Office. The material contained information which may in itself be innocuous but could, taken as a whole, provide a picture of the routines in place. In- formation of this kind could be used in its entirety to map how central government functions. Disclosure of this information could jeopardise national security. In consequence, this request required comprehensive and time consuming appraisal of the confidentiality status of the information. commented on the statement by the Government Offices. She included the following: In this case too I would like to stress that in my contacts with the Government Offices I have never been given the impression that the confidentiality status of each individual entry had to be appraised but that issues of principle were involved when it came to what could be provided. Note in particular that it took more than two weeks from receipt of my request for the Government Offices to contact me for clarification of the periods involved and that was not until I had asked how much progress had been made. The actual decision to provide most of the entries in these accounts took two and half months and was only made after my complaint had been submitted to the Parliamentary Ombudsmen. In other contacts with the Ministry for Foreign Affairs concerning documents that should not normally be classified, such as lists of visitors and guests invited to embassies, I have received the response that confidentiality in relation to foreign affairs applies. Not until I have initiated a discussion of the legal provisions applying to this specific confidentiality have the documents been provided. My impression, after having been in contact with the Government Of- fices in a number of other cases, is that the actual routines that apply to the provision of what could normally be considered public documents are so hierarchical that the officials dare not provide documents that are incontrovertibly covered by the principle of public access. On 27 2013 the Parliamentary Ombudsman issued the following adjudication. General provisions on making documents available etc. The basic regulations on the public nature of official documents can be found in Chapter 2 of the Freedom of the Press Act. These stipulate that every individual is entitled to free access to a document that is in the of a public authority, if it has been received, prepared or drawn up by the authority, provided that it is not subject to confidentiality (the principle of public access). The term document refers not only to conventional documents but also to records that can be read, listened to or otherwise comprehended by means of technical aids. A document of this kind is considered to be in the of the authority, if the authority has access to it using its own technological systems. B I L A G A 10 20 13 /14 :J O1 A compilation of information taken from material recorded for automatic processing is considered to be in the of an authority if it can be produced using routine means. This kind of potential document is also subject to the principle of public access. Regulations about entitlement to the provision of public documents do not apply, however, to compilations of a more complicated nature. This means that a public authority is not required, according to these regulations, to compile information that can be found in its databases, if this cannot be undertaken with a minimum of effort and no great cost. Special restrictions apply to the compilation of personal information about individuals. An official document that may be made available is to be provided immediately or as soon as is possible. This is to take place at the authority and free of charge. Those requesting an official document are also entitled to a copy of the document for a fixed fee. A request of this kind is to be dealt with without delay. Information about a request for a document should normally be given on the day on which the request is submitted. A delay of one or a few days is, however, acceptable if a ruling is required about whether the document may be provided or not. Some additional delay can sometimes be inevitable if the request concerns or requires analysis of extensive material. In such cases it may often be appropriate to provide information about what can be supplied in stages. General requirements concerning the management of public documents by public authorities Chapter 4 of the Public Access to Information and Secrecy Act contains provisions on general measures to make it easier to search for official documents. Section 1 lays down that a public authority must take entitlement to the provision of official documents into account when organising the management of these documents and in other procedures relating to them. The authority must in particular ensure that official documents can be provided with the avoidance of delay stipulated in the Freedom of the Press Act and that it is possible for individuals to locate them. According to Section 2, each public authority must draw up descriptions with information about how it is organised, for instance, in order to make it easier to search for official documents. Chapter 5 contains regulations on the requirement for public authorities to maintain a register of official documents. Case officers and public authority appraisals Section 3 of Chapter 6 of the Public Access to Information and Secrecy Act lays down that it is the officials at the public authorities who are responsible 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 for the management of a document that must first assess whether the document may be provided or not.