Danish RTI Amendments Get Poor Review From Raters

24 April 2013

Denmark’s proposed changes to its right to information law are regressive and will not fix “major problems” in the current system, according to one of  two organizations that produce the major international rating of RTI laws.

In particular, modifying certain exceptions would weaken the Danish law, according to an analysis by the Centre for Law and Democracy (CLD), which conducts the RTI ratings with  Access Info Europe.

“In addition to several new exceptions, the major problems with the current system – including its limited scope, flexible time limits for responding to requests, the absence of a public interest override for exceptions and the lack of a dedicated administrative appeals body – have not been addressed,” a summary of the analysis states.

Denmark’s score is 63 out of a possible 150 points, the worst in Scandinavia.  “Minor improvements” would boost its relative rating up slightly, from 78th place to 85th out of 93 rated countries, according to the authors of the RTI Rating.

The new proposals on exceptions score just one point out of a possible 30 for exceptions on the RTI Rating.

“Developed democracies are no longer at the forefront on this key democracy issue,” said Toby Mendel, Executive Director of CLD. “The Danish government has simply failed to take advantage of this opportunity to undertake the serious root-and-branch reform which is needed to bring it more into line with international standards on RTI.”

The Danish proposals have come under significant fire for their restrictive treatment of ministerial information. However, the analysis  by CLD calls this problem is” just the tip of the iceberg.” It contines, ” In addition to several new exceptions, the major problems with the current system – including its limited scope, flexible time limits for responding to requests, the absence of a public interest override for exceptions and the lack of a dedicated administrative appeals body – have not been addressed.”

The proposed amendments to the Law on Openness in Administration are drawing more objections in Denmark, even from within the coalition of parties that proposed them last year. (See most recent FreedomInfo.org report.)

Exception Seen as Problem

The proposed exemption is designed to secure more protection for documents prepared in connection with the drafting of policies and laws. It has been the most contentious element of the proposed reforms.

The CLD  report is sharply critical of this proposal (paragraphing added for readability):

Several exceptions in the current law are either illegitimate or overbroad, according to international standards and better practice.

For example, although it is legitimate for public authorities to withhold information the disclosure of which would be harmful to the deliberative process, sections 7 and 10 go far beyond that, exempting any document prepared by an authority for its own use as well as all correspondence within or between public authorities.

In the draft Act, internal deliberations are protected by sections 23 and 24, which cover any document which has not been submitted to third parties, in relation to which there is evidence that a minister has required or will require the counsel or aid of the civil service, and which has been exchanged in connection with economic or political negotiations or discussions regarding joint municipal and regional political initiatives.

While this is a slight improvement on the formulation contained in the current law, it remains very significantly overbroad. It also lacks any harm test.

In other words, information whose disclosure would not in any way harm the deliberative process or the functioning of government can still be withheld under this formulation.

By defining “internal information” as including any correspondence that has not been shared with a third party, the draft Act also excludes enormous amounts of information that is not even part of the decision-making process, such as mundane internal memos or administrative information.

The report makes more than 30 specific recommendations on other elements of the proposal and the current RTI law.

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