5. The Swedish Legal Framework on the Right of Access to Official Documents

The right of access to official documents was included in the first Freedom of the Press Act enacted on December 2^nd 1766. On the sources and history of the right of access of information in Sweden, see for instance Pöysti 2010.

As for example in the Brazilian context. See the Constitution of Brazil, Article 5, item XIV.

This legal institute, called “meddelarfrihet”, constitutes a sort of whistle-blower right. It allows civil servants – and other- to communicate, for publishing purposes, information that normally should be to be kept secret, without being penalised.

Sefastsson 2003, p. 11.

See for instance Elder 1973. However, it constitutes one of those legal institutes that are so peculiar and interwoven with a certain legal and societal context that all attempt to find an adequate translation in another language are futile.

Hans-Gunnar Axberger, who was a Parliamentary Ombudsman between 2008 and 2013, made this comment regarding the right of access to official documents. However, the remark may apply on the principle of access in its entirety. See Lecture held on May the 3^rd 2011 in Brussels at a conference arranged by the Council of Europe. Redogörelse 2011/12:JO1 Justitieombudsmännens ämbetsberättelse.

Bohlin 2012, p. 19.

It is interesting to note that the Principle of Public Access is frequently assimilated with the sole right of access to information. Indeed, when asked to define the principle of public access, citizens relate often exclusively to the right of access to official documents, forgetting the other components of the principle.

Those fundamental laws are the Instrument of Government, the Act of Succession and the Fundamental Law on Freedom of Expression.

The Instrument of Government itself mentions the right to receive information in its catalogue of fundamental rights. Chapter 2, Article 1 guarantees that all citizens have the right of (2) freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others.

It replaces the Secrecy Act from 1980, which in turn had replaced a Secrecy Act from 1937.

Chap. 2, Sec. 1 FPA.

Chap. 2, Sec. 14 (5) FPA, which provides for this possibility also states that the foreign citizens right of access may be restrained by means of an act of Parliament (Riksdag).

This habit, particularly present in regional and local governments, may be problematic from a legal standpoint when personal information is disclosed on the Internet, leading to breaches of the data protection legislation. The Data inspection Board, the authority in charge of monitoring the Data Protection legislation, has published a checklist to be used by regional and local authorities to avoid that kind of infringements. See http://​www.​datainspektionen​.​se/​lagar-och-regler/​personuppgiftsla​gen/​e-forvaltning/​webbpublicering-av-protokoll-och-diarier/​.

See for example the Parliamentary Ombudsman’s decision of 9 December 2010 in case No. 6673-2009.

See JO 1990/91, p. 382, quoted in the Parliamentary Ombudsman’s decision of 9 December 2010 in case No. 6673-2009.

Bohlin 2012, p. 54.

See for instance Seipel 1988.

This provision indeed states that “a compilation of information taken from material recorded for automatic data processing is […] regarded as being held by the authority only if the authority can make it available using routine means”.

According to the principle of accessibility, which emerged in the 1970s, each collection of information linked together in a coherent manner and made comprehensible with routine means, constitutes a document in the sense of the Freedom of the Press Act (see Magnusson Sjöberg 1992, p. 410). This theory is opposed to the one of fixation (fixeringsprincipen) according to which the public should be entitled to have access to potential documents, which have been envisaged in advance inter alia by means of a list of key words allowing to produce those documents (see Ryden 1986, p. 40).

The technological development providing the administration with possibilities to produce new constellations of data consequently enlarges the number of documents public authorities can have access to. The principle of accessibility enables the public to have equal access to this augmented amount of documents.

A discussion on the terminology used by the FPA and specifically on the adjective “allmän” is conducted in Blanc-Gonnet Jonason P. 2001.

In the same manner as the Brazilian law (Article 4, item 2 of the Brazilian Law N° 12.5272011).

See Administrative Supreme Court (Regeringsrättens), RÅ 1999 ref. 18, cases n° 3148-1998 and 5556-1998 (Judgment of 19 April 1999).

Strömberg & Lundell 2009, p. 15.

Strömberg & Lundell 2009, p. 15.

See Administrative Supreme Court (Regeringsrättens), RÅ 1971:15, quoted by Bohlin 2012, p. 42.

In the precedent Swedish Freedom of the Press Acts, the legislative technique employed consisted of an enumeration of the public authorities liable to apply the legal framework on the right of access to official documents. See Bohlin 2012, p. 58.

The Royal family is anyhow not covered by the legislation on the right of access to official documents.

For instance, Posten AB, which is a joint stock company dealing with postal services, is subject to the provisions on the right of access to official documents when it concerns the arrangement for the conduct of elections and referendums, including the postal voting, which Posten AB takes care of.

For example, the Stockholm School of Economics is liable to apply the legislation on the right of access when it concerns documents related to the allocation of public resources to research students.

Strömberg & Lundell 2009, p. 16.

Strömberg & Lundell 2009, p. 16.

Bohlin 2012, p. 53.

Bohlin 2012, p. 53.

Bohlin 2012, p. 56.

There are special rules concerning competition and tender documents.

Strömberg & Lundell 2009, p. 24.

See for example the case JO 1989/90 mentioned by Bohlin 2012, p. 69.

Bohlin 2012, p. 69.

Bohlin 2012, p. 69.

Bohlin 2012, p. 70.

Bohlin 2012, p. 80.

Bohlin 2012, p. 69.

Bohlin 2012, p. 190–191.

The PAISA refers to this Act in Chap. 9, Sec. 2.

Blanc-Gonnet Jonason 2001, p. 70.

This is the case, for example, concerning information given in the context of municipal family counselling (Chap. 26, Sec. 3 PAISA).

Bohlin 2012, p. 203–204.

“A private party’s business or operational circumstances, inventions and research results” as the law states.

In some cases the possibility exists to introduce longer periods (see the next section of this chapter titled Secrecy and the protection for public interests).

Bohlin 2012, p. 209.

The requester may be held criminally liable if he/she does not respect the reservation (Chap. 20, Sec. 3 of the Penal Code).

Administrative Supreme Court (Regeringsrättens), RÅ 1998 ref 42 (Judgment of 17 June 1998).

Trade Related Aspects of Intellectual Property Rights.

A secrecy provision that protect copyright under certain conditions was introduced to the 1980 Secrecy Act two years after this court decision. It is now to be found in PAISA.

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

Under the heading ”Relationship to the principle of public access to official documents”.

Kommittedirektiv Dataskyddsförordningen Dir. 2016:15, p. 21.

Kommittedirektiv Dataskyddsförordningen Dir. 2016:15, p. 22.

Kommittedirektiv Dataskyddsförordningen Dir. 2016:15, p. 22. See also SOU 2017:39, p. 21.

Administrative Supreme Court (Regeringsrättens), RÅ 2006, ref 87 (Judgment of 27 November 2006).

See Sect. 3.1.1.

Interesting to notice is that in only discussing Article 8 of the European Convention as a national legal ground (the Convention, incorporated in the Swedish legal order has law status) the court ignores the international side of this provision and the arguments put forward by the National Audit Office for invoking it and the reference this public authority made to the case-law of the European Court of Human Rights (Z. v. Finland, 25 February 1997).

NJA 2015 p. 624.

With the exception of matters of national security. See Sect. 3.2.

This provision has been introduced in the Swedish legal system to transpose the European Directive 2003/4/EC on environmental information.

Examples are documents concerning jobseekers held by the Swedish Public Employment Service and patient journals held by hospitals.

Magnusson Sjöberg 1992, p. 411.

See for example, the Parliamentary Ombudsman’s decision of 23 November 2007 in Case No. 5628-2006.

Bohlin 2012, p. 131.

This corresponds to about 5 Euros or 7 US dollars.

Sec. 4 in combination to Sec. 5. See also DS 2009/10:75, p. 161.

In practice, the charges are determined based on schedules set by municipal councils.

This rule aims to inhibit, or at least to complicate, the copying of recordings in a way that would cause infringements of privacy. See Bohlin 2012, p 154.

Bohlin 2012, p. 145.

The Parliamentary Ombudsman’s decision of 27 March 2013 in Case No. 4506-2012. In the present case the Government’s Office had been criticised by the Ombudsman for having granted access to information after three days although there was no reason for such a long delay.

This rule does not apply if such day is Midsummer Eve, Christmas Eve or New Year’s Eve.

Bohlin 2012, p. 164.

This rule is stated in Chap. 2, Sect. 14 (3) FPA: “No public authority is permitted to inquire into a person’s identity on account of a request to examine an official document, or inquire into the purpose of his request, except insofar as such inquiry is necessary to enable the authority to judge whether there is any obstacle to release of the document”.

For example, the Parliamentary Ombudsman has criticised a university which, to be able to send the requested document (a certificate of study) promptly, asked the person the certificate pertained to but who was not the requester, if he knew the postal address of the requester. Parliamentary Ombudsman’s decision of 11 April 2011 in Case No. 2932-2010.

Bohlin 2012, p. 250.

Hellners & Malmquist 2007, p. 170.

Bohlin 2012, p. 253.

The general rules of obligation of service and on the handling of matters are applicable instead, see Bohlin 2012, p. 131.

Additionally, the decisions regarding the imposition of fees according to Ordinance of fees may be challenged before the Tax Agency.

See Strömberg & Lundell 2009, p. 77.

Para 36 and 37.

Sefastsson 2003, p. 134.

One of the cases when an Ombudsman brought criminal proceedings against a civil servant for violation of the legislation on access to official documents concerns a researcher who refused to grant access to data collected in the context of a research project although injunctions to that effect had been made to him by administrative courts. See further under footnote 103.

Between July the 1^st 2011 and June the 30^th 2012, the Parliamentary Ombudsmen dealt with 326 complaints concerning freedom of expression and the right of access to documents (“offentlighet och sekretess”) and issued admonitions to public authorities in 100 cases. Justitieombudsmännens ämbetsberättelse, Redogörelse 2012/13:JO1.

Sefastsson 2003, p. 137.

On the contrary, in the case for offences against secrecy, the PAISA does not make any reference to the crime of misuse of office.

The Professor Gillberg who then lodged an application with the Strasbourg Court of Human Rights, complaining inter alia that his criminal conviction violated his rights under Article 10 on Freedom of expression was however told by the Court that Article 10 did not contain a “negative” right to freedom of expression in the form of the right not to give information. European Court of Human Rights, Gillberg v. Sweden. Application No. 41723/06 (Judgment of 3 April 2012), para. 94.

Examples of incorrect application of the legislation on the right of access are shown both at the lower level of the administrative hierarchy and at the higher sphere of the Swedish Government. An alarming illustration of the latter is given by a case where four journalists had, independently of each other, brought complaints against the Government Offices for the long delays applied for granting access, and where the Ombudsman concluded that the Government Offices had seriously neglected the expedition requirements set out in the Freedom of the Press Act. The Ombudsman strongly expressed his concern that the failure to respect the principle of access by the Government Offices themselves could incite other public authorities to do the same, which could, in the end, constitute a threat against the principle of access. See the Parliamentary Ombudsman’s decision of 27 March 2013 in Cases No. 639-2012, 463-2012 and 2732-2012. The failures to apply the law correctly do not only occur at the disclosure phase but also earlier on. Some deplore what has been called the ”syndrome of empty archives”, which refers to the fact that when “faced with the possibility that potentially controversial decisions could be released immediately into the public domain, politicians and civil servants might simply avoid committing themselves on paper, leading to an ‘oral’ culture of policy-making that renders government unaccountable, not only in the short term, but also potentially damaging the historical record”, Flinn & Jones 2009, p. 5. See also Östberg & Eriksson 2009.

The last decades, commissions of inquiry have succeeded one another and proposed reforms to adapt the set of rules on the right of access to documents for better taking into consideration the opportunities offered in that matter by the technical development, see for instance SOU 1997:39 Integritet, Offentlighet, informationsteknik and SOU 2010:4 Allmänna handlingar i elektronisk form - offentlighet och integritet.

At the European institutional level for instance, the rather secretive tradition of the civil servants originating from countries with a less liberal access to information legislation than Sweden has certainly an influence on their Swedish counterparts. The enactment of European legislation may also have an impact on the Swedish approach on the right of access to information. For instance, the transposition of the Directive 2003/98/EC on the re-use of public sector information into Swedish law has constituted a challenge, conceptually speaking for the Swedish legislator and the civil servants.