The applicant, a university professor, was responsible for a research project on hyperactivity and attention-deficit disorders in children that was carried out between 1977 and 1992 (para. 11). According to the applicant, the university’s ethics committee had made it a precondition for the project that sensitive information about the participants would be accessible only to him and his staff, and he had therefore promised absolute confidentiality to the patients and their parents (para. 12). In 2002, a researcher from another university and a paediatrician requested access to the research material (paras. 16-17). After their requests were refused by the university, they appealed to the Administrative Court of Appeal, which found that they had demonstrated a legitimate interest and should be granted access to the material, conditional upon certain restrictions on its use and a ban on removing copies from the university premises (paras. 18, 23). The applicant refused to hand over the material, however, and his colleagues eventually destroyed it (paras. 26-32). The applicant was subsequently prosecuted and convicted of misusing his office (para. 37). He relied on a “negative” right to freedom of expression, the right not to give information under Article 10 and Article 8 (respect for private and family life), to oppose the criminal conviction.
In a judgment of 2 November 2010 (see Information Note no. 135) a Chamber of the ECtHR held by five votes to two that there had been no violation of Article 8 of the Convention (para. 63) and no violation of Article 10 (para. 81). The applicant requested a referral of the case to the Grand Chamber.
The Court found that the disputed material belonged to the university and consisted of public documents subject to the principle of public access under the Freedom of the Press Act and the Secrecy Act. Under Swedish legislation, it was impossible for a public authority to enter into an agreement with a third party in advance exempting official documents from the right to public access (para. 87). For this reason, the assurances of confidentiality the applicant had given to the participants in the study went further than was permitted by law (para. 88). In any event, the administrative courts settled the question of whether and on what conditions the documents were to be released to the two researchers (para. 88). The applicant was not prevented from complying with the judgments by any statutory duty of secrecy or any order from his public employer (paras. 89-91).
The Court did not rule out that a negative right to freedom of expression (a right not to impart information) might be protected under Article 10 of the Convention (para. 86). However, it pointed out that the crucial question was whether the applicant, as a public employee, had an independent negative right not to make the research material available, even though (i) it belonged to the university and (ii) the university had intended to comply with the administrative courts’ judgments (para. 92). In the Court’s view, finding for the applicant would run counter to the university’s property rights and also impinge on the two researchers’ rights to receive information in the form of access to the public documents concerned (protected under Article 10) and to have a final court judgment implemented (protected under Article 6) (para. 93).
The Court also noted that the applicant’s situation could not be compared to that of journalists protecting their sources as the information diffused by a journalist based on his or her source generally belonged to the journalist or the media, whereas in the applicant’s case the research material was owned by the university and was in the public domain (para. 95). Nor, since he had not been mandated by the research participants as their doctor, had the applicant owed any duty of professional secrecy towards them (para. 96).
This was the first case in which the Grand Chamber of the European Court of Human Rights recognized a self-standing right of access to information held by public authorities. The ruling represents a significant reversal of the Court’s earlier approach on the right to know. Together with two earlier cases, Társaság A Szabadságjogokért (Hungarian Civil Liberties Union) v. Hungary and Kenedi v. Hungary where the Court held that a civil rights group and an individual historian, acting in the public interest, were entitled to access government records, the Court appears to have created a presumption under Article 10 of the Convention that state-held information of clear public interest must, in principle, be disclosed.
The case summary was written on the basis of information note prepared by the ECtHR.
Judgment of the Court.
More information on the case from OSF blog and Inforrm's blog.