EXTRACTION – THE COMPLEX EXERCISE OF THE ACCESS TO PUBLIC ADMINISTRATION FILES ACT The explanatory notes do not give many pointers as to how ‘functional facts’ are identified. And it does not make it any easier that the explanatory notes seem to be meant for cases where the authorities make actual decisions within the meaning of the law. Because it is not in such cases that the difficult extraction issues occur. These issues occur in the general administrative cases – for example about big construction projects or the preparation of political strategies – which are also the kind of cases which the Ombudsman’s extraction cases typically concern. Therefore, some specific cases from the Ombudsman’s practice best illustrate what ‘functional facts’ may be. THREE EXAMPLES OF ‘FUNCTIONAL FACTS’ Case No. 2014-14 in the Ombudsman’s Annual Report for 2014 was about a memo sent by the Customs and Tax Administration (SKAT) to the Minister of Taxation. The Customs and Tax Administration’s practice on preliminary VAT fixing had proved to be wrong, and therefore the Customs and Tax Administration had changed its practice and planned further initiatives. The memo had been sent to the Minister to give him a basis for assessing possible further initiatives, among other things. The Customs and Tax Administration had exempted the memo from access and did not find that it contained information subject to extraction. No further grounds for this viewpoint were stated. Even though some of the information in the memo were assessments, the Ombudsman concluded that most of the information had to be extracted. The Ombudsman emphasised that the information described the matters which formed the basis for the Customs and Tax Administration’s deliberations in the case, hence shedding light on the grounds for the initiatives which the Customs and Tax Administration had decided to implement. Thus, the Ombudsman attached importance to the function of the information in the case. Another case – the Ombudsman’s Annual Report for 2014, Case No. 201421 – concerned whether information in the Ministry of Transport’s work place evaluation was subject to extraction. The Ministry of Transport had exempted the work place evaluation from access in its entirety. A great deal of the information in the work place evaluation consisted of summaries of employees’ estimates of or attitudes towards certain questions. The Ombudsman concluded that the results of the work place evaluation were subject to extraction. He emphasised that even though the results had a subjective quality, they were part of the basis needed to assess which initiatives were necessary for the work environment in the Ministry. Again, the Ombudsman emphasised the character of the information as ‘functional facts’ in the case. 61