Dagerlind: Rättsdatabaserna är inte problemet – de är lösningen

EDITORIAL • The gag order imposed by the Supreme Court on legal databases does more than just hinder private actors like Lexbase and Verifiera. It undermines the very foundation of the Swedish state: the principle of public access to official documents. When the right to access public documents is restricted, one of democracy’s most important control mechanisms is undermined. The state, authorities, and the judiciary are in violation of the constitution when, instead of promoting the requirement for promptness in access to public documents, they work against it. This is a dangerous path toward a more authoritarian and totalitarian society.

The principle of public access, dating back to the 18th century, is one of the most central tools for scrutinizing power and has been a cornerstone in creating the democratic society with transparency and openness that Sweden prides itself on. It is also explicitly stated in the Freedom of the Press Act (TF) that public documents should not only be disclosed, but that it should be done promptly and easily accessible.

When the legislative history speaks of “easy accessibility,” no distinction is made between the writing desks of the 18th century and the computers of the 21st century, the messengers of the past and today’s Internet. In an IT society, “easy accessibility” means that the public should be able to search, filter, and access public information digitally, without hindrance. Technological development should facilitate – not limit – the right granted to every citizen by the constitution.

When public documents are unnecessarily difficult to find and obtain, they become less accessible than intended by the legislator. Obstructing by making distinctions between copies in the form of paper printouts from the past and digital printouts in the form of PDF files in the present, and charging exorbitant prices for the former from those who cannot reach a geographically remote court, is also contrary to the spirit of the constitution and the principle of public access.

The courts could, with the same legal interpretation, restrict the disclosure of public documents to handwritten ones on parchment with a goose feather and iron gall ink. What is being done is pure activism by the authorities and a misconduct that should have been stopped long ago. Instead, the Supreme Court is joining in the activism and further exacerbating the violations of the constitution.

Private legal databases because the state did not fulfill its responsibility

It is also important to remember why Verifiera, Lexbase, and other services exist: The Swedish state and the courts have never created the modern, searchable public legal database that citizens, media, and other actors have demanded and had constitutional support to demand.

Instead, the private sector has seen an opportunity to profit from the shortcomings of the public sector and built infrastructures where citizens, entrepreneurs, journalists, researchers, and law students can search public legal documents. These services, in place of the public sector, realize the intention of the law: to provide everyone with access to public documents in an efficient and modern manner.

When these service companies obtain publishing permits, it is not a “bending of the law” as short-sighted or deliberately misleading quibblers claim, nor is it pretending to be constitutionally protected media because they want to deceive someone. They do it because it is the only way to avoid breaking poorly conceived laws and EU regulations such as the GDPR that are in conflict with the constitution and the principle of public access.

If the state had fulfilled its responsibility, expensive private alternatives with publishing permits as a last resort would not have been necessary. Now, through activist court interpretation instead of democratic process, they are trying to stop those who took the initiative, when they should instead heed the signal that it is high time to render them unnecessary by establishing a corresponding state service. What is happening now is not worthy of a democratic society. It is not Lexbase and Verifiera that are circumventing the law, but judicial abuse and politicians with their thumbs behind their backs circumventing the constitution.

The responsibility for confidentiality lies with the court – not the database

In public debate, it often appears as if legal databases uncontrolledly spread sensitive information. But this is another misleading claim that is not true.

All judgments and other legal documents that are disclosed are subject to confidentiality review by the police, prosecutor, or court. Sensitive personal data – such as children, crime victims, protected persons, and the like – are masked or anonymized. What remains is information that the authorities, according to long-standing practice, consider to be public.

The moral indignation against legal databases is therefore misdirected. If anything, it is the constitution and the practice of public access that should be attacked – on principle, not just because public documents have become easier to find and obtain.

If the information in legal documents was in order as public before with the older technology, it must be considered the same now. Accessibility has continuously improved, it is not reasonable for any arbitrary magical threshold of difficulty/ease in obtaining public documents to determine which types of information should be public and which should not.

If one wants to change the levels of confidentiality in judgments and other legal documents, it is a fundamental legislative issue – one must confront the uncomfortable elephant in the room, not try to bypass it by throwing sand in the machinery. The question is what the public should know, not how difficult or easy it is for the public to inform itself. If one wants to reduce transparency in democracy and dismantle the principle of public access, then one must be honest enough to admit it.

Convicted criminals have no exemption from the constitution

Critics often claim that legal databases ruin the lives of young people who, in their ignorance, have committed and been convicted of minor crimes. But again, it cannot be a discussion of how difficult or easy it is to exercise one’s constitutional right to access public documents. It must be a question of how extensive the principle of public access should be, which information should be included, and for how long it should be available.

There are valid arguments for very minor crimes committed in young years to disappear from the systems after a few years. It can also be discussed whether some information that is public today may not be so in the future.

But in that discussion, it must always be kept in mind that it is restrictions on a constitutionally guaranteed democratic right that are being discussed and that it is no small matter. Otherwise, there is an obvious risk of mission creep – there are always some who want to avoid scrutiny, who think that the information that is inconvenient for them should be exempt from the principle of public access.

The opposite problem is greater

A greater problem today is the opposite – that the principle of public access is being eroded, that more and more is being classified as secret against transparency and openness. An example is the proposal to limit public scrutiny of “strategic net-zero projects” related to climate and energy investments – a proposal on this was presented in August this year, by a government that was expected to be considerably more skeptical of the green hype than the previous left-wing government.

Seldom has the need for transparency been as great as now, when green subsidy capitalism profits from politicians’ naivety and the need to signal virtue for the climate, when tax billions roll into loss-making wind power projects or pure bankruptcy machines like Northvolt and soon also Hybrit, where the business idea is to milk the state for money and then leave with the money in their pocket just before the ship sinks and the bill is sent to the taxpayers.

The perspective of the crime victim must come first

In today’s debate, the focus is often shifted from the rights of crime victims to those of perpetrators. It is the privacy of criminals that is lamented as being violated by legal databases. But the principle of public access has never aimed to protect offenders from social consequences. It aims for transparency, accountability, and legal certainty. And at the risk of being repetitive: the information has always been there in the public documents, it is only the accessibility to them in the spirit established for the principle of public access in the constitution that has been further improved.

GDPR vs. the constitution – HD chose the wrong path

Both the legislator and freedom of expression expert Nils Funcke have been clear: GDPR should not restrict the principle of public access. It is even expressly stated in the supplementary law to GDPR.

Despite this, the Supreme Court is now doing just that – not through legal support but through its own activist interpretation. It is remarkably arrogant and arbitrary. And dangerous for democracy.

By deliberately and incorrectly concluding that “the Swedish system has not been compatible with GDPR,” the Supreme Court places the responsibility on the legislator, but at the same time limits a fundamental right before the legislator, i.e., the parliament, has made a decision. It is backward, paradoxical, and problematic for the rule of law. When courts start to erode the principle of public access without the parliament having decided on it, it violates a fundamental democratic principle.

The HD ruling is just part of the pattern

In a critical opinion piece in DN, Nils Funcke has pointed out how the HD ruling is part of a larger shift with slower disclosures, unequal treatment of journalists, increased and poorly prepared secrecy, proposals to classify entire investigations as secret until the district court judgment, proposals to classify police provocations and restrict freedom of information, and secrecy applied for “practical reasons” rather than according to the law.

All of this is part of the same development: a slippery slope where transparency is gradually dismantled. Doors are being closed that should, on the contrary, be opened wide, and the open democracy is being replaced by a closed system. And all of this is done with a focus on the details instead of the helicopter perspective from which it would be clear that it is actually a constitution that is gradually being sidelined.

The danger is not Lexbase – but a society where power cannot be scrutinized

It is strange – and an event that unfortunately seems deliberate – when the debate focuses on “unpleasant” legal databases, when the real problem is that the constitutionally guaranteed transparency in Sweden as a cornerstone of democracy is continuously weakened by political decisions, administrative practice, and now also judicial practice that should be classified as a miscarriage of justice.

It is not Lexbase and Verifiera that threaten openness. The threat comes from those who, with misleading rhetoric and diversionary tactics, want public information to be more difficult to access. The argument that it has “become too easy” to access public documents is such a red herring. It goes against a fundamental principle that has built Swedish democracy for over 250 years and what is actually stated in the Freedom of the Press Act.

The principle of public access must never be restricted because it works “too well.” We should not move further in a left-liberal direction towards a society where criminals are protected more than their victims. We should not move towards a society where power evades scrutiny. And we should not move towards a society where openness is seen as a problem.

In a democratic society, it is always better for information to be public – even when it is inconvenient for some – than for power to be inaccessible. The validity of the principle of public access does not cease because it ceases to be difficult to use. On the contrary, its democratic validity is strengthened the more accessible it becomes for everyone.