April 26th, 2013

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Transparency International Denmark is worried about the consequences of the proposed new freedom of information act currently making its way through parliament. We have expressed our concern previously in writing, in connection with a conference this past autumn and, most recently, by joining forces with the protest group Nej tak til den nye offentlighedslov.

While Transparency International Denmark welcomes the positive elements of the offentlighedslov, the restrictions it places on freedom of information are so significant that we find that if the law were passed, it would represent a major step backwards for the nation’s reputation.

Denmark is a perennial top placer in the Corruption Perception Index, which ranks countries by their perceived levels of corruption, as determined by expert assessments and opinion surveys. The nation’s consistently high placing is, according to a study carried out by Transparency International Denmark, a result of our tradition for openness and transparency in the public sector and in the legislative process. However, this and other Transparency International studies have found that one of the areas where Denmark scores lowest is precisely freedom of information. The studies conclude that there is a need for a modernised law that better reflects the developments that have taken place in technology and in other areas of society. Many of our recommendations are addressed in the proposal, but unfortunately so too are changes that would undermine our reputation.

The law, as proposed, would make it possible to keep far too much information out of the public eye or left up to civil ser-vants to decide what should be released. Transparency International Denmark fears that, as a result, our otherwise strong tradition for public openness would suffer. In addition, we risk weakening the media’s role as the fourth estate and watchdog. This would be unfortunate. There are countless instances of journalists using freedom of information requests to obtain the documentation needed to prove that politicians have based their arguments on false assumptions, doctored figures or a conscious omission of information. We need to be able to look over the shoulder of our democratically elected representatives. Had the proposed law already been in effect, past revelations – including the Health Ministry overpaying private hospitals and the Employment Ministry underestimating the number of people receiving cash benefits – would never have come to light.

Our 2012 National Integrity System study and the most recent Global Corruption Barometer show that the Danish public trusts lawmakers and the media least among all professional groups. This law risks undermining trust in these groups further. We know that people’s suspicion increases as transparency decreases. For journalists, this could mean added difficulty finding reliable sources. Some of the same scandals might come to light, but instead of being based on documentation, they would be built on a foundation of anonymous sources, leaks and other less reliable forms of evidence. The ability to make a freedom of information request has, at times, helped journalists to determine that a story was groundless. Occasionally, sources come forward who turn out to not be fully informed. By going over documents obtained via a freedom of information request, journalists are able to get a full overview of a situation and to obtain all the relevant facts.  

We recommend that the proposed law be reconsidered and that sufficient time be taken to conduct exhaustive public hearings about its content – particularly those sections that have caused the biggest concern, sections 24 and 27. We respect the hard work of the Offentligheds-kommission, the body that drew up the bill proposed by the justice minister in 2010, but we find it criticisable that only two of the commission’s 20 members were from outside the public sector.

Also worth noting is that the proposal was a compromise passed by a narrow majority and that it has since been criticised by members of the commission. A law this important ought to have been supported by a solid majority of the commission’s members, given the importance the government has placed on its recommendation.

Should the law pass in its current form, Transparency International Denmark strongly urges the government to include a clause allowing it to be revised, if necessary. It should also establish an advisory group that includes a representative from our organisation. In addition, we recommend that those affected by the law ask the parliament’s ombudsman to investigate all instances of questionable rejections of freedom of information requests. Doing so will serve to establish a procedure in cases of rejection based on the evaluation of a civil servant.

Finally, Transparency International Denmark would like to underscore that the passage of this law is further evidence of the need for laws that better protect whistleblowers. Limiting freedom of information will only increase the need for individuals to step forward to draw attention to the abuse of power.

The author is the deputy chair of Transparency International Denmark.