Speech delivered by  Mr. Jens Olsen, Legal Adviser to the Ombudsman of Denmark, at the Intenational Conference on the ocassion of the 10th Anniversary of the establishment of the Institution of the People's Advocate in Albania

Tirana, December 10, 2009

 “The need for public administration transparency and its connection with the operation of the Ombudsman´s Office”

Introduction

Allow me, first of all, to congratulate the Advokati i Popullit with this 10 year Anniversary. I am very happy and proud indeed to take part in this celebration!

Also, I want to thank the organizers for giving me the floor to say a few words about the link between operations of Ombudsmen and the need for transparency in public administration.

About my topic today, I am most likely not going to say anything that has not already been said in various contexts, and it goes without saying that my constant point of referral is the Danish and partly Nordic context. So therefore, up front, an apology for any unclear or wrong statement about the Nordic history in this field, especially to the participants from the other Nordic countries.  

On the face of it, there is an obvious link between the idea of transparency in the public administration and the supervision of the executive power, and thereby an obvious link to the purpose of an ombudsman and his or her work. 

In Denmark after the Second World War, the birth of the idea of implementing an ombudsman was very soon followed by the idea of establishing a legal regulation of the question of access for the public to administrative documents and information. 

The Public Disclosure Commission set up in 1956 – that is shortly after the birth of the ombudsman office in 1955 – thus made the following statement in its 1963 report: The access to documents can also be of importance when deciding whether there might be grounds for lodging a complaint about a public authority with the Parliamentary Ombudsman.

Speaking about it - another fact that indicates a, generally speaking, logical connection between ombudsmen and freedom of information regulations is that several countries, like for instance the UK, have set up specialised ombudsmen to handle complaints about refused access to files requests – in the case of the UK, the Information Commissioner and The Information Tribunal. 

In individual cases as well as in their systemic own initiative investigations the Danish ombudsmen have ever since in their practice been deeply committed to the issue of public disclosure, and the link between the Ombudsman and the principle of access to information has been beautifully maintained in Denmark, also as illustrated by the Public Disclosure Commission’s presentation just last month of a very comprehensive and thorough report on modernization of and changes to our legislation on the subject of access to information and transparency – where the chairman of the Commission was precisely the Danish Ombudsman!

Apart from the immediately obvious connection to the issue of control of the Executive, the idea of access to information is deeply rooted in a democratic society’s conceptual basis, such as for instance freedom of speech and information and the freedom of assembly and association – that is, themes which in the 1950s were also addressed in the international human rights conventions. Before this time, the public control system in, among others, Sweden and Norway was closely connected with the question of freedom of speech and of the press. 

So to sum up here: even at this preliminary stage it is rather easy to point to contexts of legal philosophy and logic which makes it perfectly natural to suggest that the Ombudsman’s mandate could have the issue of public administrative transparency in the focus of its agenda. 

Since the 1990ties, further on, there has been an international focus on one particular aspect of the ombudsman’s work – I am referring to transparency as an integrated part of the fight against corruption – and it is this aspect I have chosen to elaborate a bit further today, just to add a more contemporary and international dimension to the topic of my intervention.

Ombudsmen, transparency and the fight against corruption

If you read through the UN Convention against Corruption, the opportunities for a joint effort between the ombudsman’s work and transparency leap very clearly to the eye.

Although it sometimes seems as if you can operate with only one, uniform concept of the ombudsman office, we all know the truth is a long way from this. For most Ombudsmen, the fight against corruption is not explicitly mentioned in their mandate – it goes with the territory so to say, when you monitor the Administration. And this is also the situation in Denmark     

I do not intend to lecture you on the UN Convention – everybody in this room knows it probably better than I do − but I would like to use some distinctions and definitions from the Convention as a guide on the way to defining the role of ombudsmen in this field of transparency and the fight against corruption.   

As a point of departure, the Convention makes an important distinction between the field of Prevention and the field of Criminalization.

In an Ombudsman context, it is usually correct to say that the work of the Ombudsman lies in the field of prevention – and this is certainly true for the Danish Ombudsman.

If the Ombudsman in his work comes across cases or incidents where prosecution should be considered and instituted, the Ombudsman will simply refer the case to the Public Prosecutor for Serious Economic Crimes. 

In the same way, the Ombudsman will contact the National Audit Office if he comes across cases where it may be discussed which is the most relevant authority – the Danish Ombudsman or the National Audit Office. In mid-summer of 2006, we had such a big case − concerning whether or not staff at the Danish Immigration Service had received presents inappropriately.

If we continue to use the UN Convention as a guideline, Chapter 2, especially articles 7 and 8 concerning the public sector, becomes interesting here. A number of tasks are mentioned in the field of prevention; for example that each state party shall adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest – each state party shall endeavour to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions, and promote integrity, honesty and responsibility among its public officials (art. 8, 1 and 2). 

Here I can stop going through the list of tasks mentioned in the Convention, because we have already, in general, come across the core of the Ombudsman's work in relation to the fight against corruption. If you go through the practices of many ombudsmen worldwide, you will find that the areas of preventive measures, mentioned in the Convention, to a very large degree correspond to what the ombudsmen have been doing throughout their whole existence: setting and internalizing norms and legal standards for good conduct among civil servants and advocating for an open and transparent public sector as well as ensuring that the legal standards set by Parliament in relation to transparency within the public sector are observed by the Executive.

Allow me to say a few more specific words about these two focus areas within the Ombudsman´s work: setting and internalizing norms and advocating and controlling regulations in relation to transparency.

Setting norms and developing legal standards for good conduct

In 1955 when the Ombudsman was introduced in Denmark, there was an absence of written general legal norms governing the Administration. So one might say that the Ombudsman very often had the advantage, and disadvantage, in that the parameters he may use for evaluating the acts and omissions of the Executive, he had to deduce himself from common sense and overall legal principles. 

Since 1987, most of the general legal parameters governing the work of the Executive are stipulated in two general laws, applicable to all public authorities − the Public Administration Act and the Access to Public Administration Files Act. 

Before 1987, when the ombudsman received a complaint and no written rules or no adequate rules could be found to cover the specific situation, the Ombudsman started his search for patterns of how similar cases or conflicts had been dealt with by other public authorities. These patterns were described as Good Administrative Behaviour and the authority in question was recommended to follow the general tendency, as you might call it. Now, if no patterns were found, or the Ombudsmen would like to develop a new pattern, he took the liberty of also calling his findings good administrative practice, and recommended the authorities to bring their practice in line with his findings.

Step by step and very systematically, the Ombudsmen thus covered the whole spectrum of problems and conflicts between the Administration and the individuals and named the right procedures and attitudes Good Administrative Behaviour – and this pattern, or systematic work of the ombudsman, was easily transcribed into an act – the Public Administration Act from 1987.

Let me give you an example of how this transformation from principles to statute law took place – an example of importance to anti-corruption efforts.

The obligation to adopt, maintain and strengthen systems that prevent conflicts of interest is mentioned in the Convention, article 7.

Since 1955 the Ombudsman has taken up cases on his own initiative whenever the press covers a story where conflicts of interest might be an issue, and where no complainants have suffered a loss directly themselves. In 1976 the ombudsman took up a case where the press had covered a story concerning a private company that had paid for dinner and tickets to a cabaret show for some town councillors and town hall staff. At that time Denmark only had provisions in relation to criminalization (article 144 in the Criminal Code) – and none in relation to prevention. The ombudsman used this case as background for the following deliberations: Except for the provision in section 144 of the criminal code, there are no written regulations on whether or not persons in the public service or with a public charge are barred from receiving favours from the private sector ... the provision may not be assumed to be exhaustive in its listing of the extent to which persons in the public service or with a public charge are obligated to turn down the favour. The question must be determined based on freer considerations within administrative law, ... that such persons,....., abstain from receiving favours from the private sector when these favours, according to their nature or the context in which they are given, in a general assessment may be likely to raise doubt as to whether the decisions of the favoured parties, including the contracts they enter into, are made impartially.

These general points of view on conflict of interest, deduced by the Ombudsman in this case from 1976, became part of the Danish Administrative Act in 1987, and in this way you might say that the work of the Ombudsman paved the way for binding, general legal provisions that ensured an effective control and a trustworthy Administration.

This definition is also an implicit part of the UN Convention against Corruption. Article 8 says that the State Parties, and therefore also Commissions and Ombudsmen, must promote, inter alia, integrity, honesty and responsibility among public officials in accordance with the fundamental principles of the countries’ legal systems – what I refer to as Good Administrative Behaviour. And according to Article 8, section 2, the state parties must endeavour to apply codes or standards of conducts for the correct, honourable and proper performance of its public functions – what I refer to as Codes of Conduct.

Internalization

Now, as I have indicated, to my mind the hard and difficult work starts when it comes to internalizing these principles for good administrative behaviour and making them integrated parts of the Administration in carrying out its  daily routines and flow of cases – not only at the institutional level, but also at the individual level among the staff; not only as slogans, but as real values: How do ombudsmen develop strategies and how can they ensure that the individual civil servant – those who meet the public face to face − not only sees and understands the parameters or standards they use, but also internalize and accepts them?

This is a tough challenge, and I do not pretend to have an answer! To have a more precise answer, you probably would need some sociological research, at least. So far, I think we only have elements of what happened in Denmark in relation to internalization and the Ombudsman. Let me, once more, go back to the UN Convention against Corruption to track the contribution from the ombudsman office.

The Convention stresses several times that rules and procedures in the fight against corruption must be developed in accordance with the fundamental principles of its domestic law and, I would like to add, also in some kind of harmony with the existing ethical and cultural pattern of the people working in the public or private sector.

Discussing the problem of internalization and ombudsmen, I therefore think two poles are visible: firstly, any norm that ombudsmen develop must be accepted and part of the administrative, legal and ethical tradition but secondly, the offices of Ombudsmen must have the courage to set new standards although they might seem unfamiliar in the traditional context of that specific country – if these new standards lead to a more qualified and transparent Administration. Looking back at the history of the Danish Ombudsman, I think their work might be described as a constant attempt to question whether we might need to strengthen existing norms or introduce and apply new norms.

In Denmark, you might say that for the Ombudsman the question of internalizing ethical norms also to a high degree became a question of how to inspire the political decision-makers to transform legal principles into general binding provisions and acts – a process that is partly still going on. 

Other means, of course, were used to impact the Administration at the institutional and individual level: training and courses, publications and nowadays we have seen written Codes of Conduct like the Code of Conduct for the Public Sector published by the State Employer´s Authority in 2008.

The Ombudsman and Transparency

To conclude my presentation, I would like to present some aspects of the traditional work of the Danish Ombudsman in relation to transparency. 

Article 7, section 3 and 4, together with article 10 of the Convention call upon every State Party to take various actions in relation to these questions.

Article 7, section 4, calls upon the State Parties to endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest. 

Article 7, section 3, calls upon the State Parties to consider appropriate legislative and administrative measures to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.

And article 10 imposes a duty on the State Parties to take such measures as may be necessary to enhance transparency in its public administration, including regard to its organization, functioning and decision-making processes, where appropriate – and article 10 continues with examples of such measures, for example publishing information which may include periodic reports on the risks of corruption in its public administration.

The task of the Ombudsman in many countries is to monitor that the Administration is observing the rules according to the correct legal interpretation and thus opening up their files according to the law – and perhaps even wider if not prohibited by the rules of secrecy.

The applicable Danish Act on Access to Public Administration Files basically allows anybody access to any administrative file – no matter what kind of case or information the file contains. In article 4, section 1, a basic principle is mentioned – that the authorities can allow access unless secrecy is prescribed. 

However, the real issues – as generally speaking of transparency −  in the Danish Act on Access to Public Administration Files lie in the exemptions from the general rule of public access. In articles 7 to 13 you find these exemptions, meaning for example that internal documents to a large degree can be exempted by the authorities and that the Act on Access does not apply to criminal cases. 

When the Ombudsman receives complaints from the public or from journalists concerning a refusal of access to files, documents or specific information, the problem is usually the correct legal interpretation of these exemptions in the act. 

So, in order to keep the matter in its proper perspective one must say that the transparency debate is an ongoing political debate in Denmark. After more than 30 years of experience with the Access to Public Administration Files Act, I think all actors in this field in Denmark have a sense of what the problems and dilemmas are in relation to transparency – and from time to time we need Parliament to reset or redefine the limits for how far we can go in the direction of an open and transparent administrative system, and this is in fact what is going on these days in Denmark. Soon, as I mentioned, we will have a new version in Denmark, with a new balance, in an Act on Access to Public Files.  

What the Ombudsman does, and always has been doing, is advocating transparency and taking the legal possibilities to the limits, so to say.

I will mention two cases to you, just to illustrate how the Danish Ombudsman operates in relation to controlling the existing legal provisions and access to information:

The first case concerned the disclosure of the diary of the Minister of Finance, and thereby jumped right onto the borderline between what is public and what is private:

The Ministry of Finance rejected a journalist’s request for disclosure of the Minister of Finance diary on the grounds that the diary was an internal working do­cument not containing information which must be extracted pursuant to Section 11 of the Access to Pub­lic Administration Files Act.

The journalist lodged a complaint with the Om­budsman, who stated that the diary was undoubted­ly covered by the rules of the Access to Public Admi­nistration Files Act. The Ombudsman agreed with the Ministry that the diary was an internal working document. However, in the Ombudsman’s opinion the Ministry’s view that the diary did not contain in­formation subject to the extraction obligation was ba­sed on an erroneous legal conception of Section 11 of the Access to Public Administration Files Act. The Ombudsman explained his understanding of the provision and recommended that the Ministry of Fi­nance reconsider the case on this basis.

The Ministry of Finance reconsidered the case and granted the journalist access to the information in the diary, after exempting a few items. (Case No. 2002- 3547-801).

As an illustration to what I mentioned just before about the political will and debate, the Dansih Act was later amended so that the Diarys of Ministers now are exempted from the public.

The second case is a still unpublished case from 2007 concerning a request from a journalist for access to files in a Ministry of Foreign Affairs case concerning the well-known programme “Food for Oil” and a request from the Danish State Prosecutor for Serious Economic Crime for documents in connection with the criminal investigation and to question relevant members of the Ministry staff. The request from the journalist was therefore not about the specific documents that later formed part of the files in the State Prosecution case – but only the documents concerning the processing within the Ministry of the application from the State Prosecution. 

The Ministry refused the request from the journalist and referred to the possibility of exemption in the Danish Act on Access to Public files concerning criminal cases.

The Ombudsman did not agree with the Ministry of Foreign Affairs in its understanding of this exemption rule and that it could be used in this situation.   

I hope these cases give you an idea of the work of the Danish Ombudsman in relation to the question of access to public files – we may conclude that the Ombudsman´s role in Denmark, historically and actually, is defined in the words of article 7, section 4, as a vital part of the maintaining and strengthening systems that promote transparency.         

Conclusions

Mr. Chairman, allow me to conclude my presentation: There seems to be a logical link between the issue or need for transparency and the work of Ombudsmen in the ideal of division of power and democratic control.

Also, historically, there is a strong link between transparency, Ombudsmen and freedom of information, assembly and association. 

Since 1990 there has, internationally, been a focus on the triangle: transparency, Ombudsmen and fight against corruption. 

This link is, as I tried to deduct from the Convention on Corruption just as natural and important as the links already mentioned.

Mr. Chairman, Ladies and Gentlemen – with all the best wishes for the future work of the Advokati i Popullit and its staff, from my colleges and me in Copenhagen, I thank you very much for your attention!