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Lise Puggaard
Special Legal Advisor, Division 1
The new Access to Public Administration Files Act was passed after intense
debate both in and out of the Parliamentary Chamber. Discussions became
really heated whenever the subject was the provisions which especially journalists
feared would lead to considerable restrictions in the access to information. The
most controversial provision was, and probably continues to be, the so-called
regulation on ministerial advice and assistance.
Experience with the new Act is fairly limited. Therefore, no firm conclusions
can be drawn on the basis of the relatively few cases regarding section 24 of the
Act which the Ombudsman has processed. However, the first year with the
new Act indicates that the provision leads to genuine restrictions in the access
to information. Still, the preliminary experience also shows that the provision is
not the trump card which always clears the table.
In order to get a better overview of the central administration’s use of the provision, the Ombudsman initiated an investigation in October 2014 of the ministries’ use of the controversial regulation on ministerial advice and assistance.
WIDENING OF THE CLOSED DOMAIN
In short, the purpose of the regulation on ministerial advice and assistance is
to secure confidentiality in regard to the political decision-making process.
Pursuant to the former Access to Public Administration Files Act, documents
which were exchanged within the same authority, for instance within a department, could be exempted from access on the grounds that they were internal.
This was out of regard for the internal political decision-making process. Such
documents are still exempted from access pursuant to the new Access to Public
Administration Files Act.
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