Legal prerequisites

Last changed: 02 September 2022

The rules that apply to records and archives management can above all be found in the Freedom of the Press Act (TF) Chapter 2, the Public Access to Information and Secrecy Act (OSL), the General Data Protection Regulation (GDPR), the Ethical Review Act and the Archives Act.

Applicable legal acts

TF Chapter 2 defines the concepts record and public record, and regulates the public’s right to access the records of public authorities. The OSL has rules about when public records must be released, and GDPR provides a framework for managing personal data and protecting the integrity of the individual.

The Ethical Review Act has rules for research on people and biological material, and the Archives Act prescribes how public records should be kept to make it possible to implement the principle of public access.

The principle of public access

What applies to research at SLU?

The principle of public access applies to research conducted at a public-law body (university or university college). This means that all operations at SLU are transparent to the public, and research is no exception. Research materials are normally university property and must be handled in accordance with applicable rules – research material is usually considered public records, regardless of how the research has been funded.

What is a public record?

A public record is a record that has been received or drawn up by SLU. It can be a written document, an image or a recording. You cannot decide yourself if something is a public record or not, this is defined in chapter 2 of the Freedom of the Press Act. The concept 'public record' is a wide one, and used regardless of the type av media. A record can be electronic or printed, a video clip, a sound recording etc. It can be ‘hardcopy’ or a collection of electronically stored data.

Is all research material public?

Working material is only considered public if it brings with it additional factual information and is archived. Biological material, works of art or scientifc material are not public records as defined by law. However, documentation about such materials and objects is public.

Is research material considered public?

Most research material is public, and as a rule also public with unrestricted access. This means that anyone can ask for the material to be released. In exceptional cases, research material may be classified if the Public Access to Information and Secrecy Act (OSL) offers a legal basis for this.

Confidentiality

Chapter 1, Section 1 of the OSL lists the contents of this act, which include rules governing the registration, release and other forms of management of public documents by public authorities and certain other bodies. The act also has provisions regarding the duty of confidentiality in public operations and regarding when public documents may not be released.

These provisions entail restrictions on the right to freedom of expression under the Instrument of Government, the right of the public to obtain public documents under the Freedom of the Press Act, and, in certain cases, limitations of the right to communicate and publish information under the Freedom of the Press Act and the Fundamental Law on Freedom of Expression (the right to communicate information, see below).

According to OSL Chapter 2, Section 1, the prohibition to communicate or otherwise use confidential information applies both to the authority as such and its employees.

When does the confidentiality provision apply?

The provisions contain a prohibition on disclosing information, be it orally, by releasing an official document or in any other way. If such a provision applies, the information may not be used in any other way in any other field of activity than that for which the confidentiality applies. (OSL Chapter 7, Section 1). An example is an employee using confidentital information for financial gain in a context not related to the authority.

What if there is no suitable confidentiality provision?

There are a number of confidentiality provisions that may apply to SLU’s operations. If there is no applicable confidentiality provision, a public record must be released if there is a request for this.

What does ’the right to communicate information’ mean?

The right to communicate information is detailed in OSL, Chapter 1, Section 1. This means that everyone, provided no provision to the contrary applies, has the right to communicate information on any subject to a journalist, publisher or news agency with the purpose of having it published in print. Because of the right to communicate information, public officials have the option to waive the prohibition to disclose confidential information – but not the confidentiality that applies to records – to communicate with someone who can publish the information in media. Consequently, it is allowed to disclose information from a public record, but not the record itself.

The right to communicate information does not apply to all confidential records, e.g. it does not apply to commissioned research[1].

Which are the grounds for confidentiality?

Business confidentiality

Applies to details regarding a private party or a company's business or operational circumstances if the private party or company (…) has entered a business relation with an authority and if, for particular reasons, it can be assumed that disclosure of the information would cause damage to the private party[2] if the information is disclosed. Confidentiality applies for a maximum of 20 years. For documents detailing the conditions of an agreement, confidentiality applies for a maximum of 2 years (Chapter 31, Section 16).

Personal relations in education

Confidentiality applies in (…) teaching situations (…) if the information concerned originates from a psychological examination or treament, as well as for information about a private party's personal circumstances from a psychologist, counsellor or study/career adviser, unless it is manifestly evident that the information may be disclosed without the private party or a person closely related to them being harmed.[3]. (Chapter 23, Section 5)

Commissioned research

Confidentiality applies to information on testing, determining characteristics or volume/amount, valuation, scientific, technical, financial or statistical investigations or any other task the authority performs on behalf of an individual, if it can be assumed that the task was commissioned provided that the information would not be disclosed.

For universities and university colleges, confidentiality applies for a maximum of 10 years. (OSL, Chapter 31, Section 12)

Section 13 states that the confidentiality defined in Section 12 does not prevent information regarding the health of indivduals from being disclosed to a supervisory authority in the field of environmental and health protection. The reason for this is that it must be possible to alert such auhtorities of any health dangers, without being constricted by confidentiality.

Collaborative research

Confidentiality applies to universities and university colleges for financial or operational information about an individual, inventions or research findings submitted as part of or resulting from such research which after agreement is conducted in collaboration with an individual, if it can be assumed that the individual is taking part in the collaboration provided that the information not be disclosed. (Chapter 24, Section 5)

It must be emphasised that this concerns collaborative research ­– it does not apply to e.g. farmers lending their cattle to a research project, unless the farmer themselves is taking active part in the research.

Patents

Section 20 applies to applications for patents on inventions or business secrets, subject to the provisions in the Patents Act (1967:837).

Section 21 states that confidentiality applies to such information about an invention which thas been submitted to an authority according to the Act (1949:345) on the Right to Employee’s Inventions. If a patent application is pending, confidentiality only applies if the information is confidential according to Section 20.

For information in a public record, confidentiality according to the first paragraph, first sentence, applies for a maximum of 20 years.

Can you draft your own confidentiality agreements?

To conclude, it should be added that these legal provisions are binding. It is not possible to draft a cooperation agreement stating e.g. that staff working with studies involving commercial businesses are bound by secrecy, or in any other way limit or expand the area of application of these acts. Such agreements can only work as a reminder of the regulations already in force.

 

TF, Chapter 2, Section 3, defines ’record’ as a representation, in writing or as an image, or a recording that can be read, listened to or in any other way only be perceived using technical means. A record is public if it is stored with an authority, and can be considered as having been received or drawn up by the authority.

1. OSL Chapter 31, Section 26 states that the confidentiality provided for in Section 12 (…) limits the right to communicate information. Whether this right is limited for a particular confidentiality  is explained at the end of each chapter in OSL.

2. Straight damage requirement means that as a rule, the information in a public record is public with unrestricted access, so called weak confidentiality. For the information to be classified as confidential, releasing it must be considered as causing damage.

3. Reverse damage requirement means that as a rule, the information in a public record is public with restricted access, so called strong confidentiality. For the information to be released, it must be clear that releasing it will not cause damage.

Test your knowledge

The principle of public access 

  1. What is a public record?
  2. Is all research material public?
  3. Is all research material public with unrestricted access? 

Confidentiality

  1. When is information confidential?
  2. What is the case when no confidentiality provision applies?
  3. What does ’the right to communicate information’ mean?
  4. What grounds for confidentiality are there?
  5. Can you write your own confidentiality agreements?