Access to certain documents about the authorities’ management of the corona pandemic was not to be assessed under the Environmental Information Act but under the Access to Public Administration Files Act, the Ombudsman concludes in a new statement.
A journalist requested access from the Ministry of Health to documents that formed the basis of a paragraph in the report on ‘Managing the Covid-19-Crisis’, which an expert group appointed by Parliament’s Standing Orders Committee published in 2021. The paragraph concerned the government’s briefing of Parliament’s health-policy spokespersons, and it said, among other things (translated from Danish):
‘It appears from e-mail correspondence of 15 March 2020 between the departments in the Ministry of Health and Senior citizens and the Ministry of Justice that the Ministry of Justice has become aware ‘(…) that the spokespersons were not briefed specifically about the Danish Health Authority’s ‘hearing response’ during the legislative process.’ A head of division in the Ministry of Health and Senior Citizens even writes in a briefing on 15 March 2020 to a number of leading members of staff in the department in the Ministry of Health and Senior Citizens that the Ministry of Justice is ‘(…) half panicked about the Danish Health Authority’s lack of support for the government’s announcements.’’
The journalist requested access to all documents forming the basis of the paragraph. He believed that the request for access was to be processed under the Environmental Information Act, based on the argument that COVID-19 is airborne and as such is a virus that affects the air environment to such an extent that information about the tackling of the virus falls under the Environmental Information Act. According to the Environmental Information Act, access to public files must be assessed according to the previous Access to Public Administration Files Act from 1985 and not the current Access to Public Administration Files Act. Among other things, this means that neither the ministerial advice and assistance rule of Section 24 of the Access to Public Administration Files Act or the so-called parliamentary politician rule in Section 27 of the Act apply.
The Ministry of Health only partly granted the request. The rejection was made according to the Access to Public Administration Files Act, as the Ministry did not believe that the Environmental Information Act was applicable. The Ministry referred to expert healthcare reports stating that COVID-19 is primarily infectious through droplet and contact infection and typically within a distance of 1-2 meters. Furthermore, the Ministry rejected various documents referring to the ministerial advice and assistance rule and the parliament politician rule.
The Ombudsman could not criticise that the Ministry of Health had rejected to make a decision under the Environmental Information Act. The background of this was that the Ombudsman does not have the professional expertise to be able to disregard the health-professional assessments of how COVID-19 is infectious and how much it affects the air environment. Nor did the Ombudsman believe that the relevant documents were covered by the Environmental Information Act on a different basis.
‘There is a natural interest in getting as much insight as possible into the authorities’ management of the corona crisis, and it is therefore important to clarify whether the Environmental Information Act is applicable. In this case, I cannot criticise the Ministry of Health’s assessment that this was not the case in relation to the relevant documents. However, I cannot dismiss that infection control measures may be covered by the Environmental Information Act if their effect implies an environmental impact’, says Parliamentary Ombudsman Niels Fenger.
Requested access to internal e-mails
The case also raised a question about access to e-mail correspondence between members of staff in the Ministry of Health. The correspondence had been given to the group that wrote the report on managing COVID-19 (the so-called Grønnegård report).
The Ministry of Health had rejected access, as the Ministry believed that the correspondence was still internal, even though it had been disclosed to the group. The Ombudsman agreed that the e-mail had not lost its internal nature, as it was disclosed to the group for ‘research use or other similar reasons’.
However, the Ombudsman recommended that the Ministry of Health reopen the case and consider if there are grounds for granting access to for instance some factual information in the internal e-mail correspondence.
Read the Ombudsman’s statement (in Danish only).
Further details:
Parliamentary Ombudsman Niels Fenger, tel. +45 42 47 50 91
Senior Head of Division Kirsten Talevski, tel. +45 33 13 25 12
FACTS
The rules about access to environmental information are set out in the Environmental Information Act (Consolidation Act No. 980 of 16 August 2017), which implements Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC. This directive incorporates the Aarhus Convention’s rules on access to environmental information and active communication of environmental information in EU law.
According to Section 3 of the Environmental Information Act, environmental information is any information concerning, among other things, the state of environmental elements, such as air, and measures, including administrative measures such as policies, legislation and activities that affect or may affect the individual environmental elements, as well as the state of health of humans to the extent that it is affected by the state of the individual environmental elements.
If an access to public files case is to be assessed according to the Environmental Information Act, it means that access to public files must be assessed according to the previous Access to Public Administration Files Act from 1985 and not the current Access to Public Administration Files Act. Among other things, this means that the ministerial advice and assistance rule of Section 24 of the Access to Public Administration Files Act does not apply. Read the article in the Ombudsman’s 2019 Annual Report Is using the term 'environmental information' a magic formula? and overview #22 'What is environmental information' (in Danish only) in the Ombudsman’s Guide for Authorities.
Section 23 of the Access to Public Administration Files Act about internal documents has the following wording:
‘Section 23. The right of access does not include internal documents. Internal documents include
1) documents that have not been disclosed to outsiders.
(…)
Subsection 2. Documents covered by subsection 1 that are disclosed to outsiders lose their internal nature, unless the disclosure takes place due to legal reasons, for research use or due to other similar reasons.’