frsrdg · H104JO1 · 2013-11-13 00:00:00 — In doubtful cases officials are to arrange for the authority to make this assessment (public authority appraisal), if this can take place without unnecessary delay. If an official decides not to provide the document or part of it, the individual making the request is to be notified of the possibility of requesting appraisal by the authority. This notification must make it clear that the applicant must request and receive a written refusal from the authority before any appeal can be made. Neither the Freedom of the Press Act nor the Public Access to Information and Secrecy Act contain any provisions about what form public authority appraisal is to take. This means that each public authority, or rather its senior management, is required to ensure that there is a procedure to determine which official or officials are to be empowered to decide on the authoritys behalf and how cases of this kind are to be dealt with. What a procedure like this will look like will, of course, vary considerably, depending on the size of the authority, how often issues of this kind arise, etc. If a public authority appraisal results in a refusal to provide the entire document or parts of it, its decision can be appealed against. This is made clear by Article 15 of Chapter 2 of the Freedom of the Press Act, which also says that appeal against the decision of a minister must be addressed to the Government. Section 7 of Chapter 6 of the Public Access to Information and Secrecy Act stipulates that no appeal may be made against a decision by the Government. In addition to the regulations in the Freedom of the Press Act on the provision of official documents, the Public Access to Information and Secrecy Act also contains provisions on the information that public authorities are required to provide for the public. Section 4 of Chapter 6 of this act stipulates that if requested by an individual, a public authority must supply information from an official document unless the information is subject to confidentiality or doing so would unduly interfere with its operations. No particular rapidity is required in this context. Section 4 of the Administrative Procedures Act further stipulates that a public authority must, to the extent reasonable in view of the nature of the request, the help needed by the individual and its own operations, provide individuals with information, guidance, advice and other assistance of this kind on issues that concern the area in which it operates. These general regulations can be cited to confirm that an authority should assist individuals by making compilations of the kind that do not constitute potential documents. There is, however, no general obligation to do so and the authorities must judge from case to case what may be required of them. As has been shown, there is no stipulation on avoidance of delay corresponding to that laid down in the Freedom of the Press Act. B I L A G A 10 20 13 /14 :J O1 Regulations about the provision of documents from the Government Offices The Government Offices are a public authority whose task is to prepare issues for Cabinet meetings and otherwise assist the Government and ministers in the work that they do. In other words, as it is a public authority the same rules on the provision of documents apply in principle for the Government Offices as for all other public authorities, i.e. the ones described above. It is therefore incumbent on the Government Offices, ultimately their senior management, to ensure that there is an efficient organisation to deal with and decide on issues concerning the provision of documents. The Ordinance with Instructions for the Government Offices (1996:1515) distinguishes between Government business, on which the Cabinet has to make decisions, and Government Offices business, where the Government Offices themselves as a public authority are entitled to decide. Provision of public documents is a Government Offices concern. Section 18 of the Instructions for the Government Offices lays down that a request for the provision of documents is to be reviewed in the ministry in whose they are, unless otherwise prescribed. (The Prime Ministers Office and the Administrative Department are placed on the same footing as the ministries, see Section 2.) This regulation also states that decisions on the provision of documents in doubtful cases are to be made by a minister. The same applies if the individual applying for the documents so requests. Requests may also be forwarded to the Government for its appraisal. If this occurs, the request shifts from having been a Government Offices concern to become Government business and therefore other regulations in the instructions about how it is to be dealt with apply. In the case of Government business, Section 13 lays down that responsibility for matters concerning the operational areas of several ministries lies with the ministry to which they mainly pertain. According to Section 15 Government business that falls within the ambit of the operations of several ministries is to be dealt with in consultation with the other ministers concerned. This second provision means that what is known as joint consideration is obligatory for Government business that affect several ministries. Requiring joint consideration is intended to ensure that the principles of collective Cabinet decisions and responsibility are given genuine substance and that all the ministers are in fact enabled to exert influence on the Government issues that their responsibilities justify. detailed guidelines on joint consideration can be found in the memorandum from the Prime Ministers Office designated PM 2012:1, Forms of Consultation in the Government Offices. No regulation about how cases are to be dealt with corresponding to the one in Section 15 that applies to Government business exists for the procedures of the Government Offices. This means that there is no stipulation that a request for the provision of documents that affect several ministries has to be dealt with jointly other than when such a request is forwarded to the Government for its appraisal. 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 The Government Offices routines for dealing with requests The Government Offices were asked to account in particular for their organisation and routines to deal with requests for access to public documents. The Government Offices () submitted the following response. The Government Offices comprise the Prime Ministers Office, the eleven specialist ministries and the Administrative Department. Each ministry is headed by one or more ministers, of whom one is the minister-in-charge. Immediately subordinate to the ministers-in-charge there are usually three kinds of officials: state secretaries, directors-general of administrative affairs and directors-general for legal affairs. The Permanent Secretary of the Administrative Department is responsible for joint administrative concerns and is also head of the Administrative Department. The way in which a request for access to public documents from the Government Offices is dealt with is subject to the provisions of the Freedom of the Press Act and the Ordinance with Instructions for the Government Offices (1996:1515). Section 18 of the Ordinance with Instructions for the Government Offices lays down that such a request is to be appraised within the ministry at which the document is kept. In doubtful cases or if the applicant so requests, the question of provision is to be appraised by one of the ministers within the ministry. The request may also be forwarded to the Government for its appraisal. If a case concerns several ministries, Section 13 of the Ordinance with Instructions for the Government Offices lays down that the ministry to which the case mainly pertains is to deal with a request for the provision of a public document. According to Section 15 of the Ordinance with In- structions for the Government Offices on joint consideration, Government business that falls within the ambit of the operations of several ministries is to be dealt with in consultation with the other ministers concerned. Consultation may also be required in cases which can be decided by the Government Offices. Consultation must be initiated as soon as is practically possible. Consultation between the entities and ministries concerned when it comes to such requests is undertaken in the same way as when dealing with other cases and takes the requirement to avoid delay into account. According to the routines that have been developed and now apply, decisions are made case by case about the coordination and treatment of a request for the provision of documents that concern more than one ministry. The operations of the Government Offices are characterised by transparency and public access. All of the ministries have a registrar who helps the public and journalists to acquire insight and access to public records. The Government Offices also offers archival support for those who wish to view sections of the journal and after searching through it request documents. The impression of the Government Offices is that the number of requests for documents or the provision of information in other ways has risen considerably in recent years. Work has begun on reviewing the routines for dealing with cases and enquiries of this kind and they may be changed as a result of this development. The necessity and possibility of organisational changes are also being considered. B I L A G A 10 20 13 /14 :J O1 General observations on the Government Offices routines If the principle of public access with all its regulations about access to official documents is to have any effect, the public authorities have to adapt their organisation to provide the insight that individuals and the mass media are entitled to. This requires, for instance, the existence of officials who are responsible for managing the documents of various kinds in the of the authorities and also explicit and distinct procedures for official appraisal by the authority of the kind described above and which individuals are entitled to request when the documents applied for are not provided. In addition, the procedures adopted must enable compliance with the constitutional requirement of avoidance of delay in dealing with such requests, including the long established praxis pertaining to them. As the Government Offices are a public authority, the main rule that applies can be found in Section 18 of their instructions, which stipulates that decisions on issues relating to the provision of documents are to be made by the ministries or their counterparts in which the documents requested are kept. No normal procedure is stipulated, nor which official or officials are to make the decisions. The responses from the Government Offices have cast no further light on the question of what routines apply. Judging from what has been stated, procedures seem to have been devised ad hoc, without adequate support from fixed routines and principles. The complaints dealt with here and the material submitted by the Government Offices suggest that the authoritys organisation has not been adapted to the requirements that stem from the provisions in the Freedom of the Press Act and the Public Access to Information and Secrecy Act on access to public documents. It seems, furthermore, that joint consideration, which pursuant to Section 15 of the Instructions for the Government Offices is to take place where Government business is concerned, also applies in connection with the provision of documents. An inspection undertaken by (see 2010/11:KU10, p. 29) would seem to confirm this. As can be seen from the account of the legal provisions, such joint consideration is intended to ensure that the principles of collective Government decisions and responsibility are given genuine substance and that all ministers are in fact enabled to exert the influence on Government business that their responsibilities justify. There can be no question of joint decisions and responsibility of this kind where issues relating to the provision of documents are concerned, unless the case has been forwarded to the Government for its appraisal. Joint consideration is, moreover, designed to guarantee complete and thorough analysis of an issue and is completed when all concerned are in agreement (see Prime Ministers Offices memorandum PM 2012:1, p. 10 f.). This naturally prolongs the time devoted to such issues. A procedure of this kind is not compatible with the principle of public access, where the basic regulation is that documents are to be provided immediately by the officials responsible for them. Only in exceptional cases, therefore, when time is needed to be able to carry out a satisfactory appraisal of confidentiality status, 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 should this kind of joint review be made of a request for public documents. The methods adopted in such a joint review should then enable the avoidance of delay stipulated in the Freedom of the Press Act. , which reviewed the appraisal of questions concerning the provision of public documents in the Government Offices a few years ago, pointed out that the regulations were still based on the premise that the Ministries were authorities in their own right, i.e. on the system that applied before the extensive restructuring that took place in 1997. The committees analysis demonstrated a number of areas where there was lack of clarity in this respect (see SOU 2009:5, chapter 6). The failure to adapt the organisation and regulations to the demands deriving from the principle of public access, as well as to the changes in the structure of the ministries implemented no short time ago, has probably, judging from the complaints that have been reviewed here, had an impact on the efficiency with which they have been processed. It appears that an application that cannot result in the immediate provision of the documents requested can easily end up being circulated in a no-mans land where no official or minister can be held accountable for any delay in dealing with it or for other shortcoming that obstruct the insight to which individuals or the mass media are entitled to. The obligation to compile information from public documents The complaints reviewed here have all concerned the requests of journalists to be provided with documents that consist of compilations from the Government Offices administrative system. A request of this kind requires a public authority to determine whether it relates to a document as laid down in the provisions of the Freedom of the Press Act, with the avoidance of delay this stipulates, or if instead it concerns a compilation that these provisions do not require the authority to provide, so that the stipulation about avoidance of delay does not apply either (see for instance the Parliamentary Ombudsmens adjudications 6926 in 2010 and 7232 in 2010, in which it was not considered that the provisions of Chapter 2 of the Freedom of the Press Act required to the Government Offices to compile the information requested). In order to decide which regulations are to apply, knowledge is required about the structure of the administrative system and the possibilities it provides to produce documents. It is, however, clear that the three complaints examined here all concern information that could have been compiled from the Government Offices administrative system using routine measures. The requests have therefore been for potential documents, which are covered by the principle of public access laid down in Chapter 2 of the Freedom of the Press Act, in other words they concerned public documents. In particular where the complaint of is concerned, it seems from the statement submitted by the Government Offices unclear how his request was dealt with. Against this background I would like to underline how important it is for a public authority, in this case the Government Of- B I L A G A 10 20 13 /14 :J O1 fices, to decide immediately whether a request is for the provision of a public document or not, as well as to inform the applicant as soon as possible about what decision has been reached. It is particularly important for notification of this kind to be provided when it is clear that the applicant assumes that the request is covered by the provisions of the Freedom of the Press Act while at the same time the authority has a different opinion. Delay caused by appraisal of confidentiality status The excuse offered by the Government Offices for the length of time taken to deal with all of the cases examined here is that time-consuming appraisal of confidentiality status was required. From the point of view of the Parliamentary Ombudsmen, the reference by a public authority to the need to appraise confidentiality status should be accepted if it seems reasonable: in principle the task of the Parliamentary Ombudsmen does not include assessment of any specific appraisal of confidentiality status. A public authority that does not feel it can provide a document straight away because of the required appraisal of confidentiality status must, however, to avoid being criticised for failure to avoid delay, be able to demonstrate in a reasonably concrete that a need of this kind arose in the specific case. In other words it is not enough to assert flatly that one secrecy provision or another had to be taken into account. What has been stated by the Government Offices in this respect on the complaints under review has been terse, abstract and relatively unconvincing. Moreover, the same constitutional provisions apply to the appraisal of confidentiality status as for the treatment of requests for documents in other respects, which means that the task takes priority over routine operations. Ap- praisal of confidentiality status may not therefore delay the provision of documents for longer than is justified by the process itself. The length of time involved may in itself be dependent on the access of the authority concerned to expertise and resources of other kinds. In this respect, however, in principle the Government Offices can be expected to act more rapidly than most other public authorities. Adjudication on the individual complaints requested information from the Prime Ministers Offices accounting system. This concerned potential documents that are subject to the principle of public access and the avoidance of delay required. The documents provided consisted of two lists, one of seven pages and one of four. The first list dealt with internal and external entertainment and the second out-of-pocket expenditure. The first document listed voucher numbers, voucher dates, periods, account codes, cost centres, amounts and brief descriptions detailing the transaction, such as Foreign Office, lunch for the committee 7 October 2009 and the suppliers. The second contained similar but fewer details and lacked individual descriptions of the transactions. 2 0 1 3 / 1 4 : J O 1 B I L A G A 1 0 After his complaint to the Parliamentary Ombudsmen, received the documents – with some confidential information redacted – about eleven weeks after he had requested them. In response the Government Offices claim that the long delay was due to the fact that it took some time to produce the information, that appraisal of its confidentiality status was time consuming as the material was so comprehensive and analysis was required of a large number of the documents on which the information was based. The documents requested appear, as pointed out, to correspond to a normal printout from a ledger in the Government Offices accounting system and only comprised a limited amount of the information it contained. It must have been possible to produce the documents rapidly and simply. The Government Offices have asserted that some of the information was subject to defence secrecy pursuant to Section 2 of Chapter 15 of the Public Access to Information and Secrecy Act, without, however, going into any more detail. The Government Offices have further stated that appraisal of the confidentiality status has required analysis of the material on which the information was based but not why this was necessary. have the Government Offices otherwise provided any more detailed information about the appraisal of the confidentiality status that took place. From the sparse information provided by the Government Offices about what the appraisal of confidentiality status involved and in view of the information that was in fact provided, it is not possible to come to any other conclusion than that it should have been possible to undertake the appraisal in one or two working days and that dealing with the request in its entirety should not have needed to take very much longer than that. Irrespective of the true state of affairs, the eleven weeks that had to wait appears to have more than exceeded the time frame within which a request of this kind should have been complied with. 2: first complaint first request concerned what are called telephone logs, i.e. information on incoming and outgoing calls etc. from the desk phones of certain officials. These were potential documents, which are subject to the principle of public access and the avoidance of delay. request, which prompted special consideration, ended up being dealt with as Government business and was rejected after just over two months with reference to confidentiality. Decisions by the Government are not subject to the supervision of the Parliamentary Ombudsmen, which in this case is restricted to the way in which the case was handled by the Government Offices while it still remained their concern before being forwarded to the Government for its appraisal. Forwarding a request for the provision of documents to the Government means that responsibility for dealing with it in accordance with the provisions in the constitution and the Public Access to Information and Secrecy Act is shifted from one level to another. It is therefore important for it to be made clear that such a transfer has taken place as well as when it did so. B I L A G A 10 20 13 /14 :J O1 fer also replaces the decision that would otherwise have to be made by an official. It should therefore take place within the same time frame (see JO 2009/10, p. 483 [p. 512]). This means that it was incumbent on the Government Offices either to decide rapidly if the request for the documents could be granted or, in compliance with the same requirement to avoid delay, to submit the request to the Government for its appraisal. made her first request on 28 February 2012. The Government Offices have not stated when it was forwarded to the Government. This cannot, however, have been before the case was sent on to the Prime Ministers Office some time between 8 and beginning of April. Information in the complaint that has not been contested by the Government Offices suggests that at the time of the complaint to the Parliamentary Ombudsmen on the case had still not been transferred. This means that at any rate it took the Government Offices almost two months to determine that request should be treated as Government business. In the statement submitted by the Government Offices nothing is said about the considerations that led to the transfer but it is merely asserted that the Government issued its decision without any preceding decision by an official, and also that the time taken to deal with the request as a whole was because appraisal of the confidentiality status was not uncomplicated. has argued that it was not appraisal of the confidentiality status that took time but that the delay was due instead to the fact that her request was shifted from one official to another who lacked any mandate to make a decision. Producing the telephone logs requested cannot have taken more than a few days.