Danish Officials Utilizing Controversial New Exemption

31 December 2015

The Danish government is actively using an exception created in 2013 to prevent the release of some documents that are part of the deliberative process, according to an article (in Danish) published in Information, written by Ulrik Dahlin and Sebastian Gjerding.

The controversial Section 24 has been invoked 360 times by 17 ministries from the time of its effective date, Jan. 1, 2015, until June 2015, the article said. The ministries have prevented the release of information that might have been available under the old law, the article said.

The reporters also found that ministries in “only” 67 instances used a provision to allow access even if the information could have been kept confidential by invoking Section 24.

The controversial provision was intended to protect pre-decisional materials from release in order to permit candor during the deliberative process. Section 24 says:

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

It was added to the law in May of 2013 on a 99-42 vote, with 38 lawmakers absent or abstaining. (See previous FreedomInfo.org.)

Ombudsman Critical

Parliamentary Ombudsman Jørgen Steen Sørensen criticized the provision during testimony in Parliament in November, saying Section 24 “figuratively removed “a real part of the public cake.” The ombudsman is scheduled to report in 2017 on the implementation of the law, but some have urged that report be produced earlier.

The use of Section 24 varied by agency, according to the Information tally, with the ministries of Justice, Commerce and Employment involving to the most, in about one in six of all decisions on access. The Ministry of Justice received about 400 access requests annually. It relied on Section 24 99 times in the 27 months Information examined.

The extent of the information undisclosed also varies, from many documents to single paragraphs, the article says.

Information’s analysis also shows that at least three out of four decisions on access relying on Section 24 concerned requests from the media.

Repeal a Possibility

The article provides commentary and some examples of information refusals.

The conservative mayor in Hørsholm has expressed frustration at being denied access to the plans by the Ministry of Finance to convert a barracks to a departure center for refugees.

Some political backlash against the provision surfaced in October, when Politken reported criticisms from the leader of the Conservative Party, Søren Pape Poulsen, according to a BT article. Conservatives had supported the Section 24 amendment.

Poulson’s doubts encouraged opponents of Section 24, who said they might have a majority to change the law.

Information reported recently that the topic will be brought up during January discussions among the parties.


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