Swedish Parliament Passes Amendments to Access Law

5 December 2013

By Staffan Dahllöf

This article appeared first in Wobbing EU on Nov. 21.

The Swedish parliament Riksdagen that in 1766 saw the birth of the first law on freedom of information ever, has adopted a new limitation of access to documents. Documents may be withheld in order not to ”deteriorate” Swedish interests in international relations.

The new ground for classification was introduced by a decision in parliament November 21. Two parties – The Greens and the Left Party – voted against.

The centre-right government as well as the Social Democrats in opposition claim that the law revision should not be seen as a backlash for transparency, but rather a technical adaption to an increasing amount of international negotiations, and other forms of international cooperation.

The Greens and a few interest groups and stakeholders disagree. They fear the new rule will function as slippery slope towards more secrecy, and will weaken arguments in favour of openness when presented by Swedish officials in the EU.

To be well defined

For centuries Sweden has adhered to the notion of an open administration. Hence documents are supposed to be available to the public, unless stated otherwise. This has lead to a steady growing list of secrecy clauses as exceptions to the general rule. The bottom line though still reads a presumption for access and all exceptions have to be well defined by the law.

This is where the new controversy kicks in.

As most nations Sweden has a clause for secrecy in order not to ”disturb international relations” or in other ways ”harm national interests.”

This clause remains, with the following added on top:

Secrecy shall also apply when ”it can be assumed” that Sweden’s ability to participate in international cooperation ”deteriorates” if the information is disclosed.

Margin for denial

The critics stress two essential aspects with the new clause expanding secrecy.

To ”be assumed” is an extremely vague term. The same goes for ”deteriorates”. Both terms leave a wide margin for public authorities not to reveal information, just to be on the safe side.

The new secrecy clause also means that Sweden de facto gives away the supremacy to decide on access request to the EU or to other EU member states.

Such a provision runs counter to arguments previously carried by Swedish politicians and civil servants in negotiations about EU’s own access rules. In EU-forums Sweden, has argued fiercely not to give an emitter of document a veto right to its release, often referred to as ”originator’s right”.

Crusade has been cancelled

The originator’s right is now introduced in Swedish law with explicit references to EU-legislation and agreements between EU and third parties.

In the finale debate in Riksdagen, MP Peter Eriksson (The Greens), chair of the Constitutional Committee said: “The Swedish crusade for openness is apparently cancelled. It is replaced by handing out rubber stamps for secrecy to be used deliberately. This is tragic and a betrayal of close to 250 years experiences.”

The Left Party, announced in the final debate that it would second the Green’s motion for rejecting the proposal.

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