2014 AT THE OMBUDSMAN INSTITUTION
families could be unnecessarily exposed and stigmatised in their local communities.
The Environmental Information Act gives a particularly broad access to public
administration files, and though the concern not to expose the farmers and
their families to stigmatisation was valid and important, it was not sufficiently
proven that this would in actual fact be the result of granting the access. It also
played a part in our legal assessment of the case that the mere fact that a herd is
infected does not mean that the farmer and the farmer’s family are too.
The food safety authorities accepted our statement and decided to give access to
the documents. However, at the same time they decided to suspend the actual
release of the information. Their grounds were that the Danish Agriculture
and Food Council (representing the farming and food industries of Denmark,
including businesses, trade and farmers’ associations) had brought a legal action
against the authorities, claiming that the information should not be released
and at the same time applying for a delaying effect pending the proceedings.
This was a quite exceptional situation, and the authorities were, so to speak,
being squeezed between the Ombudsman and the courts of law. Can a public
authority suspend access to files solely on the grounds that legal action has been
taken and delaying effect applied for? And moreover, after the Ombudsman
has been involved in the case? But on the other hand, can the authorities ignore
legal proceedings and just hand over the documents? The damage will, after
all, be irreversible if the courts reach the conclusion that the documents are not
subject to the right to access after all.
In this particular case, we decided to let the authorities’ decision of suspension
stand. The reality was that we would be forestalling the decision regarding a
delaying effect which the courts were about to make, and this was, in addition,
a case involving very complex legal issues and strong interests.
So can public authorities in future just refuse access because somebody succeeds
in bringing a legal action before the information has been handed over? No,
they cannot. However, I doubt that we will be seeing this problem very often ‒
I do not think that we have ever encountered it before ‒ and if we do, it must be
resolved in the light of the specific circumstances. But it does illustrate an unusual aspect of the relationship between the Ombudsman and the courts of law.
A third case which dominated headlines concerned cost-cutting plans for children
placed in care at Guldborgsund Municipality (Annual Report 2014, Case No. 2014-9).
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