FECL 15 (May 1993):

EC-POLICY ON PRIVACY AND SECRECY THREATENS NORDIC TRADITION OF FREEDOM OF INFORMATION

A Swedish constitutional law, the Freedom of Press Law (Tryckfrihetsförordning: FPL) stipulates the principle of everybody,s right of free access to all records, files, documents and journals of government and public administration. This Principle of Public Access to Information (Offentlighetsprincip: PAP) has its roots way back in the 18th century.

Today, this early nordic version of "Glasnost" appears to be seriously threatened in the context of Swedens application for EC-membership. This prospect does, however not seem to disturb the political leadership of the country.

"In the interest of promoting a free exchange of views and universal enlightment, every Swedish citizen shall have the right to have access to documents of the public administration" (FPL, Chapter 2, para 1).

Generations of Swedish powerholders have tried to graduously sap this constitutional base of the PAP which enabled a disturbing public control of their activities. On a formal level, they have almost succeeded.

Graduously, a number of provisions allowing for secrecy under certain conditions were included into the Freedom of Press Law.

Thus, secrecy may be imposed, among other things, in the interest of the country's security or its relations with another state or an international organisation, the prevention of or the combat against crime, general economical interests, and the protection of the personal or economical situation of individuals.

Obviously, such "elastic" provisions allow for extensive interpretation. However, any exception to the PAP must be stated with precision in a particular law. At present most of them can be found in the Secrecy Act (sekretesslag).

Yet, the PAP is a traditional freedom so deeply rooted in Swedish society, that it almost has the character of a common law. It has so much become a part of the nordic way of life that it can hardly be rooted out by mere legislative manoeuvres.

This is illustrated by the current heated debate on the future of the PAP triggered by the Swedish government's application for EC-membership.

Indeed, the Swedish conception of transparency and public control collides with two continental-European traditions: governmental secrecy and protection of privacy.

As Anders R. Ohlson, a leading Swedish journalist, writes in Dagens Nyheter: "In Sweden, the doors to politicians and bureaucrats are expected to stand open. Power shall be exercised publicly, with general insight into decisions and into the findings they are based upon, in order that the powerholders can gain and keep the trust of the citizens. In the EC and the EC-states, in contrary, the doors are mostly shut. There, nobody has the right to read documents of the authorities. Civil servants who give hints to massmedia on power abuse or corruption, take great risks; only fiew EC-memberstates have a proper protection of informants."

Some examples might best illustrate how the PAP affects daily life in Sweden:

Any citizen may read the correspondence of the Prime Minister or any other member of the government. And more, he must be granted access to governmental journals and diaries where documents are listed.

In the same manner, any citizen has access to information collected by public administration (statistical figures, fact-finding investigations, all stages of the procedure of legislation, etc.).

While average citizens seldom make use of these rights, journalists, politicians and researchers do it all the more. Just imagine a journalist of some London tabloid sticking his nose in the morning mail on John Major's desk, and you will understand that Sweden is an Eldorado for investigating journalists.

Or imagine a German immigration lawyer requesting the asylum agency to hand him out all fact-information on the grounds of which they turned over an application of an asylum seeker.

But the PAP does not stop there.

Every resident of Sweden is registered under his so-called "personal number" (consisting of the date of birth, followed by four digits). Most personal data collected by public administration are registered under this personal number.

Any third person will obtain information on your name and address, your employer, your taxed income, your ownership of a car or estate, the housing allocations you receive, and, to a certain extent, your court records.

The third person snooping on you in such a way, will obtain all this information without giving his name, let be a reason. If he wishes to complete his overview with your portrait, he will just have to walk to the police station and order a copy of your passport photograph.

Once again, a wonderland for journalist Svensson investigating on managing director X, bankrobber Y, or Z, member of parliament. A wonderland also for thousands of Mr Gustavsons wishing to know if their neighbour Mrs. Karlsson might have been granted some unjustified privilege with respect to her building permit and if her life stile is in keeping with her income.

No doubt, the PAP benefits the rule of law and democracy. With transparency, anybody can control the authorities. State bureaucracy works with the curtains drawn wide open. Public administration collects a extraordinary mass of information in all domains. General access to this information favours general learning and power.

Many Swedish powerholders have experienced these effects of PAP. Thus, alone in the 80ies, no less than three Ministers of Justice were forced to step down because of the massmedias' publication of compromising governmental documents.

But in practice, the PAP,s value lies in its preventive effect against secret administration and corruption.

On the other hand this tradition sometimes conflicts with most of the European civil liberties movements' demand for every citizen's right of disposal of his personal data.

In the current debate in Sweden this argument is frequently used by circles opposed to governmental transparency as stated by the PAP. They hope that EC-membership will result in a deadly blow for the principle. A lot of Swedish powerholders and bureaucrats are likely to seize the occasion of getting rid of the PAP under the pretext of "inevitable" harmonisation. In these circles, the main question discussed is, whether the strived for abolition of the PAP will necessitate an amendment of constitutional law or not. In an investigation on the effects of EC-membership ordered by the government, Olof Ruin, a professor of political science, comes to the conclusion that the requirements of Community law (including secrecregulations) can, properly speaking, be met without an ammendment of present Swedish constitutional law. Mr Ruin seems to bet on an extensive interpretation of the provisions regulating exceptions from the PAP.

Indeed, the mere provision permitting the imposal of secrecy in the interest of "relations with another state or an international organisation" provides a large space of manoeuvre for introducing secrecy in wide domains of national public administration involved in some form of data exchange with the EC or an EC-memberstate.

The following story shows that some EC-countries are likely to press for such change of Swedish information practice:

A German journalist visited the customs authorities in Stockholm with the intention to hopefully bribe a customs official into showing him some document relating to the Swedish armement firm Bofors' arms smuggling affairs with Iran and its ramifications in Germany. The Swedish customs officer took note of the journalist's desire, asked him to wait a moment and soon came back with several pounds of revealing documents from the custom authorities' archives which he politely handed over to the astonished German. The article based on these records includes an interview with a scandalised public prosecutor in Mainz: "Sweden must impose secrecy on everything and should adapt to European legislation. In the event of Swedish EC-membership, Swedish law must absolutely be harmonised with the rest of Europe."

 

Sources: Erik Göthe: Offentlighetsprincipen i grundlagerna (The principle of public access to government documents), part 1 (published in Tidskrift för Folkets Rättigheter, Stockholm, No.1/93, and part 2 (unpublished); Anders R. Ohlson: Hugg i ryggen på "tredje man' (Stab in the back of the "third man"), in Dagens Nyheter, 25.1.93; Per Gröndahl: Vill du höra en hemlis?, in Tidskrift för Folkets Rättigheter, No.1/93; Dagens Nyheter, 4.2.93, 26.2.93, 27.2.93.

 

Legal texts: Regeringsformen (Swedish Constitution) Chapt.2: para 1/6, 12 and 13; Tryckfrihetsförordningen (Constitutional law on the freedom of the press), 1949, SFS 1991: 1500; Sekretesslag (Secrecy law), 1980, SFS 1989: 713.

 

For further information contact: Erik Göthe, Tidskrift för Folkets Rättigheter, Svartmangatan 27, S-111 29 Stockholm, Tel: +46/8 246004, Fax: +46/8 112590.