Proposed Danish FOI Revisions Draw Criticisms

15 February 2013

By Staffan Dahllöf

This article appeared in Wobbing Europe with headline “Yes-minister-law to hide political documents from the public.”

Denmark’s reputation as a pro-transparent country is at stake, warns leading expert in media law Oluf Jørgensen: “This will draw international attention,” he says, pointing at a unique possibility to conceal reports from a minister to a closed circle of parliamentarians: “This is in clear breach with the principle of division of powers.”

Tim Knudsen, a professor in political science has a similar comment: “Slotsholmen  (home of the parliament and governmental departments on a tiny island in Copenhagen) shields itself and weakens democracy.”

These comments are triggered by a proposed new legislation on access to official documents.

One single paragraph causes the uproar:

The right of access does not include internal documents and information exchanged at a time when there is specific reason to believe that a minister has or will have a need for the advice from an civil service and assistance between:
1) A ministry department and its subordinate authorities.
2) Various ministries.

An agreement culture

In a previous version, tabled by the then liberal-conservative government, this clause was explicitly called the exemption for “services to ministers” This should not be mixed up with ”internal working papers,” known in many access laws, as the exemption that covers documents in their final version as well as document sent to and from different ministerial department and authorities.

As the proposal now has been re-tabled by the present government (centre-left) the provocative and ridiculed term ”services to ministers” has been deleted.
Minister of Justice Morten Bødskov (Social Democrats) argues that the change of words is important, while representatives of the former government fail to see the change in substance.

The urge among Danish politicians to ring-fence correspondence between authorities and ministers can be explained by an established culture where parties enter into pre-legislative negotiations and agreements before proposals are officially tabled.

This is demonstrated at length by how the proposed law has been dealt with.

Behind closed doors

As journalists grew aware of what was in the making they asked for access to documents related to the secretive talks between the former and the present government. This was denied.

Also, suggestions to make the new proposal subject to an official hearing have been rejected.

“This is outrageously arrogant,” says Pernille Skipper, MP of the Red-Green Alliance a leftist party, being part of the government’s political platform in the parliament. Right wing Danish People’s party and Liberal Alliance oppose the proposal as well. None of the three parties have themselves held governmental positions, contrary to the parties now backing the law.

The EU-style

According to the critics, some of the well-known political affairs recently would most likely not had been known by the public had the proposed law been in force.
This includes deliberate attempts by the previous government to bypass international conventions on refugees, and an ongoing case about prime minister Helle Thorning-Schmidts personal taxes. In this case members of the former government are suspected of having intervened in decisions taken by the tax authorities, with the purpose to discredit a political opponent.

In spite of the strong criticism, it is assumed that the proposal will pass in Parliament later in spring as a majority of the parties already have agreed to adopt the law.

Readers who know to the political process in the EU would recognise this as a parallel to the so called trilogs (“three party negotiations”) where the Commission and the Council negotiate with representative of the Parliament behind closed doors, leaving the public in the dark, and non-participants only to accept a done deal.

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