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ANNUAL REPORT 2014
But the regulation on ministerial advice and assistance goes further than that.
It widens the domain for the protection of the political decision-making process
by stipulating that the right to access also does not include documents and
information exchanged between a ministry’s department and its subordinate
authorities or between ministries when there is actual reason to believe that a
minister has or is going to have a need for advice and support from the Civil
Service.
There are exceptions, but the regulation basically protects the ministries’ political
activities.
The legislative history cites as examples situations where government officials
give the minister advice on potential political problems in a case, draw up bills
and replies to parliamentary questions or help a minister prepare and implement
political initiatives.
THE REGULATION ON MINISTERIAL ADVICE AND ASSISTANCE LEADS
TO RESTRICTIONS
So the question is, what has actually happened after the Act took effect on
1 January 2014. Were the critics right that the regulation on ministerial advice
and assistance was going to be a massive infringement of transparency, or were
the supporters right that the regulation did not lead to the collapse which was
feared by many, but instead to reasonable and relatively limited restrictions?
In 2014, the Ombudsman institution closed 14 cases with an issue pertaining
to section 24. Some were turned down, for instance because an administrative
channel of complaint had not been exhausted, or because the authority reopened the case after the Ombudsman’s hearing. In six cases, the Ombudsman
made a formal investigation and gave a statement. Common to the six cases is
that we were not really in any doubt as to whether section 24 was applicable to
the exempted documents and information.
The Prime Minister’s Department, for example, refused access to memos on
ministers’ use of the social media (Case No. 14/03694). The Ombudsman
agreed that the memos clearly appeared as written and exchanged in regard to
ministerial advice and assistance. The memos were exchanged between ministries and, besides, written a couple of years before the new Access to Public
Administration Files Act. Therefore, the case also shows that even if a document was written before the new Access to Public Administration Files Act
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