60
ANNUAL REPORT 2015
In our experience, many authorities and probably also many journalists and citizens understand the extraction duty according to section 28(1), first sentence,
to mean that access to sheer facts must be given, end of story. This is certainly
understandable, but the ‘factual grounds’ have a broader meaning.
If there were merely the duty to find and give the factual information as such, it
would not be that difficult. As an example of factual information, the explanatory notes mention that ‘on a motorway, 20,000 cars pass by on a daily basis’.
The difficulties arise, because the facts are not always as easy to spot as in the
example of the amount of cars on a motorway.
If you take a closer look at the Act and its legislative history, you can see that
the concept ‘information on the factual grounds for a case’ in section 28(1), first
sentence, has two principal meanings:
Firstly, it means information which obviously is factual, for example the information about the 20,000 cars.
Secondly, it means – in the words of the explanatory notes – ‘other information
which contributes to supplementing the case’s evidential grounds or is otherwise provided in order to provide clarity in regard to the factual grounds of the
case [unauthorised translation]’. Thus, it is not sufficient to look at the content
of the information – whether it is factual or not. It is also necessary to look at
the function of the information in the relevant case. Simply stated, this kind of
information can be referred to as ‘functional facts’. In this case, we are talking
about information of a more subjective nature.
In addition to this, the public can under certain circumstances get access to
external and internal professional assessments which are tied to the case in
question. This appears from section 28(1), second sentence, and section 29 of the
Access to Public Administration Files Act.
Interestingly enough, however, it is not the latter issues that cause problems
in practice – at least not in the cases which are submitted to the Ombudsman
institution. In contrast, the ‘functional facts’ category does.
By this, we do not mean ‘professional’ statements within the meaning of the Act
(which must be assessed pursuant to section 28(1), second sentence, or section 29
on external and internal professional assessments). On the contrary, we mean
all the other kinds of statements that may occur in a case. These may be the
authorities’ own statements as well as statements which originate from other
authorities or from citizens and to which the documents refer.
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