As mentioned, the starting point is that access to documents must be provided to all documents unless the case, the document or the individual piece of information can be specifically exempted on the basis of one of the provisions in Sections 19-33 of the Danish Public Records Act.
Prerequisites
As mentioned, the starting point is that access to documents must be provided to all documents unless the case, the document or the individual piece of information can be specifically exempted on the basis of one of the provisions in Sections 19-33 of the Danish Public Records Act. section 23(1) of the Danish Public Records Act exempts internal documents from the right of access to documents. By way of example, this covers documents that have not been provided to third parties. Further, it follows from section 27(4) of the Danish Public Records Act that the right of access to documents does not include public authorities’ exchange of letters with experts for the purpose of legal proceedings or when contemplating whether legal proceedings should be conducted.
However, under Section 33(3) of the Danish Public Records Act, the right to access to documents can also be restricted to the extent necessary to protect material considerations for the economic interests of the public, including performance of public commercial activities. In case of access to documents concerning public formation of contract it may be decisive whether the application for access to documents is made before or after the formation of contract as the consideration for confidentiality is usually greater prior to the formation of contract. The provision may also be applied after formation of contract, however, depending on the circumstances, if there is an obvious risk that access to documents will impede the future negotiation position of the public.
Requirements
Exemption of information with reference to Section 33(3) assumes that the authority, for each individual piece of information, assesses whether “material considerations dictate that it is necessary that the said information is kept confidential.” This means that for each piece of information that the authority wants to exempt, it must make an actual assessment of whether it is necessary to exempt the item of information out of consideration for public commercial activities.
Even if the authority has exempted information from access to documents, it has a duty, according to the principle of extended openness in Section 14(1) of the Danish Public Records Act, to consider if access to documents can be given to a greater extent than what follows from Sections 23-35.
…the state is subject to a general administrative law obligation to support that a substantively correct decision is made. Thus, Fugleholm and Sværke state:
“The state is always, however – including in connection with the conduct of legal proceedings – obliged to follow general administrative law principles on objectivity, truth and equality, including the production of documentation, and otherwise to act in a way that supports the progress in the legal proceedings and contribute to the court making its decision on an adequate basis. It is not the case that in this instance other procedural requirements apply to administrative authorities than to private parties, but merely that the public is always subject to a general administrative law obligation to act properly relative to its citizens and enterprises and to support the court’s work of delivering a substantially correct judgment.”
In compliance with this, in U 1998.16 H the Danish Supreme Court allowed parts of a request for discovery from a number of citizens who had sued the prime minister. In that connection, the Danish Supreme Court took into account that “as a public authority, the defendant has a natural obligation to contribute to investigate the facts of the case”. However, there are also cases in which citizens have contended that the public authority has a duty to contribute to investigate the facts of the case, without the Danish Supreme Court having had regard to that in the final judgment, such as U 2011.479 H.
Usually, the production of evidence in cases in which the public is one of the parties does not differ from the production of evidence in cased between two private parties. Thus, the parties generally have the same access to produce evidence and examine witnesses whether it is about a public authority or not. In relation to the production of evidence in legal proceedings, Henrik Zahle has, however, stated that for public authorities a higher degree of objectivity must be demanded in e.g. requests for discovery than what is demanded from private parties.