Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996

Flags of 15 EU Member States

Public access to public sector-held information and dissemination policy - the Swedish experience

Prof. Peter Seipel

IRI, Stockholm University, Sweden

1. The heritage and the present 2. Openness of different kinds 3. Citizens and customers 4. Information technology and the information society Proceedings ]

1. The heritage and the present

1.1 Historical notes

The first Swedish Freedom of the Press Act was signed into law on 2 December 1766. The background of the Act may be summarised as many centuries of administrative secrecy, restrictions on the printing of documents, and censorship. For example, in 1688 ordinances issued by the King and certain other state documents appear to have been regarded as the property of the Crown. To print them was explicitly prohibited. And according to the Instrument of Government of 1720 protocols of the Parliament and of its committees were to be kept secret.

During the 18th century, struggles between two early political parties, the "hats" and the "caps", led to a general discontent with regard to the lack of information about important state matters and the ensuing abuse of power by an irresponsible bureaucracy. The struggle for increased openness resulted in the adoption of the Freedom of the Press Act of 1766. Among other things, the Act regulated the publicity of official documents and enumerated a number of such documents which could be printed freely by anyone, for example the documents of the Parliament, the courts, and the civil service. Anyone who so claimed could obtain access to such documents and should have a right to copy the documents on the premises of the keeper or to receive certified copies of them. It should be noted that from the outset the Swedish principle of openness has been strongly connected with the right to disseminate information.

Being a legal novelty, the 1766 Act met with difficulties and limited understanding. Its validity was contested already in 1772 when the political situation turned into a period of royal autocracy. However, the ideas formulated in the 1766 Act remained alive and significantly influenced the later Instrument of Government of 1809 and the Freedom of the Press Act of 1810 and of 1812. The last mentioned legislation was in force until it was replaced by the presently valid statute, i.e. the Freedom of the Press Act of 1949.

To summarise, it may be said that Sweden has a long and rather continuous tradition of a right of access to official documents. Not least it is worth emphasising that the Freedom of the Press Act forms part of the Swedish constitution. Thus, the right of access to official documents is guaranteed at the highest level of legislation.

1.2 The heritage – both openness and secrecy

The fact that the principle of public access to official documents has been upheld for so long is essential for understanding the present Swedish situation – legal, political and cultural. Each and every employee of every public authority is aware of the basic openness requirement. The public expects openness – not least journalists and other professional information seekers – and no politician thinks of questioning or changing the “principle of publicity“ – at least not openly and certainly not radically. From another point of view, openness is seen primarily as a citizens‘ right and attempts to associate it with commercial information supply have met with scepticism, and sometimes outright hostility. Access should be free of charge!

If openness constitutes the main rule, the need for secrecy is also commonly understood and accepted. Presently, Chapter 2, Section 2 of the Freedom of the Press Act (FPA) sets out the permitted exemptions. They are sorted into seven categories, among them the security of the Realm or its relations with other nations or international organisations, the activities for inspection, control or other supervision carried out by public authorities, the prevention and prosecution of crime, and the protection of private and economic information about individuals. All cases in which official documents, in accordance with these principles, are to be kept secret, must be clearly defined in a specific act of law or in a law referred to by this specific law. The "specific act of law" is at present the Secrecy Act of 1980, an extensive and detailed piece of regulation. In eleven chapters it enumerates and defines the different types of data and activities which are subject to secrecy.

The Secrecy Act also contains general provisions regarding, among other things, the exchange of information between public authorities, registration and docketing of official documents, and certain requirements with regard to computer systems. There is also a Secrecy Ordinance of 1980 which supplements the Secrecy Act in certain respects, for example with regard to the application of specific secrecy norms to particular public authorities.

1.3 The complex openness context

The basic access principle is set out in Chapter 2, Section 1 of the FPA.

"To further free interchange of opinions and enlightenment of the public, every Swedish national shall have free access to official documents."

This basic provision is only the starting point. It is surrounded by a complex structure of statutes, regulations, and case law which in various ways are of consequence for the basic, general access right. As in many other countries, the total legal situation is complicated and not easy to survey.

Generally speaking, it is possible to distinguish between four categories of related rules which must be taken into consideration, viz. rules which:

Some examples of regulations in each of the four categories are:

To illustrate the complications caused by the interplay of different rules, a simple practical example may suffice:

Provisions in the Swedish Copyright Act of 1960 exclude computer programs from the usual right of certain public archives to produce copies in connection with research. Since the running of computer programs is considered to involve copying, access for research purposes to deposit copies of CD-ROMs which happen to contain computer programs will presuppose the consent of the right owner. It could be argued that copyright protection must give way, since the main rule according to Section 26 b of the Copyright Act is that the constitutional right of access prevails. However, according to a special provision in the FPA, recordings which have been submitted to archives for research purposes by private parties do not constitute official documents under the FPA. Thus, we end up with a legal situation where a special rule for computer programs in the Copyright Act in combination with a general exemption rule in the FPA make access to certain archive materials dependent upon contractual arrangements with private parties.

1.4 Openness in practice

Decisions by public authorities to deny access to official documents may be appealed by the information seeker, usually to the so called Courts of the Chamber – general administrative courts of second instance – and, ultimately, to the Supreme Administrative Court. Only the information seeker has the right to appeal – not a public authority seeking to prevent a disclosure and not a third party whom the document at issue concerns.

The Parliamentary Ombudsman has certain supervisory functions also in the area of freedom of information. The Ombudsman watches over the activities of public authorities. He acts as a kind of public prosecutor and can bring criminal actions against public servants for conduct which he finds punishable under the law. The yearly reports of the Ombudsman usually contain interesting statements concerning the right of access to official documents. Although they do not constitute case law in the proper sense of the word, in practice they carry weight and contribute to shape valid law.

A limited number of empirical studies have been performed of the application of the law and the activities of public authorities and the information seekers.

In summary, such studies have shown that there are varying "openness climates" at different public authorities. Some of them make impressive efforts to ensure that the legislation functions well, others seem inclined to obstruct or neglect even their basic statutory obligations. Among other things, these obligations require public authorities not only to handle day-to-day requests for information according to the law but also to design their computerised information systems so that access is made easy. For example, the protection of secret data ought to be implemented in a way which does not render access to public data difficult. But there are, at present, no legal remedies if a public authority neglects such obligations to design and construct access-friendly information systems.

2. Openness of different kinds

2.1 Key holes and sluice gates

As alluded to above, openness according to valid Swedish law is a complex subject legally as well as politically. For our present purposes we need not discuss other kinds of openness than the publicity of documents and data (cf. open meetings, for example).

The question of whether and to what extent the right of access according to the FPA can be invoked for any kind of purpose should, in theory, not be difficult to answer. A public authority may, in principle, not inquire into the aims of the information seeker and the information seeker has the right to remain anonymous. Only to the extent that it is necessary for the application of specific secrecy requirements, this main rule may be set aside. But in practice, the question of purpose is controversial and every time there is a discussion of revising the access legislation it tends to come back.

Briefly, access legislation can, in principle, aim at creating four increasingly broad types of information availability:

For the reasons mentioned above there has been a marked reluctance to connect the FPA with any particular category. As for the fourth category, public authorities in Sweden have sometimes referred to their obligations under the FPA in order to legalise activities which come very close to selling their information. On the other hand, it has repeatedly been stated by the responsible ministers, by the Committee on Constitutional Law of the Parliament etc. that neither can the right of access according to the FPA be used to legalise such activities, nor is the right of access intended to support commercial activities of the information seekers. Such support may be a "side effect" of the right of access – sometimes a useful and sometimes a doubtful side effect – but that is all. In practice the dividing lines are a bit blurred between the exercise of the right of access, the provision of non-obligatory information services by public authorities, and their engagement in purely commercial activities.

2.2 Co-functioning norms

In the broader legal framework, the different kinds of openness may be discussed according to the following scheme.

An analysis of the totality of existing Swedish openness legislation shows that the enactments belong to different categories but not in any precise way. For example, the information system of the Swedish parliament, Rixlex, is available as a fee-based specific information service according to the law (1993:825) on personal files in the information system of the Riksdag. Data from the Rixlex system may also be obtained by parties who wish to exploit them commercially in the form of annotated CD-ROM products, for example. Since the information services of the Rixlex system are considered to be closely related to the handing out of official documents according to the FPA, it is now being considered to offer the information service at no cost via the Internet and to make the files available at a nominal fee for (further) commercial exploitation, not as before at a percentage of the revenues generated by using and re-selling the data.

One could go on and discuss various elements of valid Swedish openness law in relation to the scheme. For example, the FPA can be used to obtain printouts to be used commercially (address labels, for example). But if the information seeker wishes to obtain machine-readable data, then other rules come into play and we move into the fields in the lower left and right squares of the diagram. Without going further, it may be concluded that the Swedish experience emphasises the need to discuss the openness rule set as a whole and in functional terms as well as formal and institutional.

3. Citizens and customers

3.1 General

Citizens‘ interests and customers‘ interests sometimes coincide and may be integrated into a positive, democratic whole. But it is not so of necessity. The accomplishment of a desired whole where civic and commercial interests are in harmony appears to require goal-conscious and concerted efforts. Two examples from the Swedish scene serve to illustrate the complications.

3.2 The sensitive case of old ladies

In his recent book “IT and the free word“ (in Swedish) Anders R. Olsson discusses a case from the 1980s when a group of journalists wanted to study possible differences in the health care offered to elderly women with varying incomes and fortunes. The intended study met with a number of obstacles, some of which are of particular interest in the present context.

3.3 Basic information services – do they exist?

The second example has to do with certain Swedish attempts to distinguish between certain basic categories of information and information services. Although the efforts date back a couple of decades they have not yet resulted in definite policies and legal measures. One reason appears to be the difficulty of drawing precise border lines between the different categories.

One possibility is to distinguish between “passive“ and “active“ information services. Passive information services could be said to constitute the typical domain of the basic and free access right to official documents and data. Public authorities would be under no obligation to respond to particular information needs by actively creating corresponding information resources and practices. Their only obligation would be to make available on demand information which they have produced in the course of their ordinary activities. Active information services – customer-oriented, edited, market-adapted etc. – would be the task of commercial organs, be they publicly owned or private or of a mixed nature.

The most recent attempt at categorisation is to be found in the Swedish Government‘s so called Information Technology Bill to the Riksdag (1995/96:125). The bill contains a rather extensive discussion of information supply in the Swedish society and its required infrastructure. The discussion appears to presuppose three basic categories of information which may be called: (a) citizens‘ information, (b) basic social information, and (c) commercial information. The first two categories are closely interrelated. Category (a) comprises, among other things, statutes, regulations, and guides to public institutions. This information is a candidate for distribution by public authorities at no cost or at a nominal cost. Category (b) comprises public databases of general concern and with numerous possible uses, i.e. databases containing information about individuals, organisations, land, buildings, roads, etc. The bill sets out a number of basic principles regarding such ‘utility databases‘:

The third category, commercial information, is only treated indirectly in the bill. This should not surprise since the bill is concerned with activities and obligations of the State. One such obligation is to contribute to the shaping of an infrastructure (education, distribution mechanisms, legal framework, library networks etc.) which is favourable to the development of commercial information services and products of interest for society.

To conclude, the example of information categories indicates that Sweden may be on its way to recognising a set of basic or universal information services characterised by the information content and by the involvement of state and local government organs in the creation and dissemination of the information. The well-established principle of access to official documents is certainly of importance for this development. At the same time it is not unlikely that the continued development of a concept of basic information services could lead to a reshaping of the traditional principle of openness. For example, it is not unlikely that it may be expanded to include a right to obtain data in machine-readable format. At present no such right exists.

4. Information technology and the information society

4.1 The electronic document – just a starting point

The advent and rapid spread of information technology has been of considerable significance for the development of openness legislation in Sweden. In the early 1970s the Supreme Administrative Court decided that the document concept in the FPA should be interpreted broadly so as to cover machine-readable media such as punched cards and magnetic tapes for automatic computers. The term "document" must, according to the court, be construed broadly so as to cover new types of media for the registration of information and it cannot be accepted that developments in the technological field erratically weaken the right of access. The decision marked a starting point, nothing more, and a number of subsequent revisions of the FPA have uncovered the many political and conceptual issues that were left unanswered by the court. At present yet another legislative committee (the sixth since 1960) is working with the problems.

4.2 Political choices

It is sometimes said that information technology means nothing new: it just the same old questions in a new shroud. Sometimes this is true, sometimes not. As regards openness legislation one may say that there is a choice between treating the situation as ‘old‘ or treating it as ‘new‘. The latter choice means that the potential of information technology to vitalise and expand the openness principle is recognised. It may be said that so far the Swedish lawmakers have followed this path. However, there are critics who maintain that the lawmakers have not been sufficiently aware of the threats to openness which are associated with the new ways of handling information.

One such threat – which constitutes a main theme in the above-mentioned book “Information Technology and the Free Word“ – occurs when privacy protection is emphasised too much and at the expense of freedom of information. In the words of Olsson: “Politicians and public servants have a strong tendency to regard the computer primarily as a threat when it is used as a tool for storing/processing/communicating data. They focus one-sidedly on the possibility to commit crime or injure people. If the old riksdag of noblemen, clergy, burghers, and peasants had approached the printing press with the same attitude as the lawmakers of today approach the computer, then there would never have been any freedom of the press in 1766“.

Be that as it may, it is clear that information technology offers all kinds of opportunities for openness and democracy and that, at the same time, old balances and perspectives are upset. Already in the 1960s a Swedish legislative committee, the Committee on Openness, formulated some of the key issues:

In Sweden, these issues and related ones have not yet received any conclusive and precise political answers which take into full consideration today‘s networked information environment. Not that attempts have not been made. But the speed of the technological development has been so rapid as to make it difficult to understand the options and their short-term and long-term consequences. The previously mentioned notion of fundamental or universal information services to the citizens may be seen as one example.

4.3 Conceptual choices

One task of the presently working Data Legislation Committee is to analyse, once more, the need for changing the basic concepts in Chapter 2 of the Freedom of the Press Act. To some extent the task is legal-technical in nature and concerns the need for standardised terminology. Concepts must have a clear meaning in relation to both traditional and electronic media and must function well within their specific legal contexts regardless of the tools used for information processing. The concepts that we are talking about are, for example, “document“, “form“, “writing“, and numerous related notions such as “signature“, “original“, “copy“ and “file“.

These conceptual issues are, of course, not only semantic and formal in nature. Functional and political arguments will often decide how they are solved. Two simple examples from the Swedish discussion may serve to clarify:

The right of access comprises only documents that are being kept by a public authority. According to valid law to “keep“ means to have electronic access. In addition, official documents must also either have been drawn up by a public authority itself or have been made available to it by a third party. The question now arises of whether and to what extent information on the network – a database, for example 96- should be considered to have been made available to a public authority by a third party. Does the simple fact that information can be searched and retrieved suffice? Or should some active measure of the third party be required? The latter, narrow interpretation means that only e-mail and similar messages which have actually been received by the public authority fall under the access right. The broadest possible interpretation means that any electronically available constellation of data may be asked for as long as a third party has not actively excluded the public authority from access. Between these two extremes there are a number of possible solutions. Evidently, the choice is not one of technical necessities but of different views on the scope of the access right.

The second example is of a similar kind. Briefly, the traditional right of access can be described as a right to request the handing out of identified documents. The right to search for documents has so far not been a recognised part of the principle of publicity. It has remained a background issue shrouded in the claire obscur of administrative discretion. But the fast growing information networks, the powerful search engines, and, generally speaking, the retrieval possibilities of electronic information increase the significance of search rights as an integrated element of the traditional access right. But again, strategic views of the further development of openness in society will decide the extent to which these possibilities will be exploited and what shape they will be given.

And this may stand as the concluding remark from the Swedish point of view: that two hundred years of openness may be of limited value if the tradition cannot be rejuvenated to match the new opportunities of the electronic information era.

Proceedings ]

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