Precedents required for determining public access to pre-trial investigation reports

What is it all about?

If there is reason to suspect that a crime has been committed, the police conduct a pre-trial investigation. Once the pre-trial investigation has been completed, in due course, a pre-trial investigation report will be drawn up. Then, the pre-trial investigation report is submitted to the prosecutor, who then decides whether or not to bring charges in the case. Pre-trial investigation reports typically include a lot of information, and they may also disclose private personal data.

Lately, there has been lively public debate on public access to pre-trial investigation reports. The particular viewpoint has been the extent to which pre-trial investigation reports are public. Particular attention has been focused on a case in which the National Bureau of Investigation refused to disclose information on names in a pre-trial investigation report to a journalist requesting it, because the pre-trial investigation in question concerned organised crime and the disclosure of information on names would have revealed that the parties concerned had been members of an organised crime group.

Does it seem strange that the police keep that type of information confidential? Yes. Does it make any sense? Let’s investigate.

About publicity interpretations by the police

All activities of the authorities must be based on the law. Publicity issues are regulated by the Act on the Openness of Government Activities (Act on Openness). The premise of the Act is clear: official documents are public, unless there are grounds for their secrecy, separately laid down in law, that apply to them.

One of such grounds for secrecy is included in section 24, subsection 1(32) of the Act on Openness. Word for word, it is as follows: “Unless specifically provided otherwise, the following official documents shall be secret: documents containing information on the political convictions or the privately expressed views of a person, or information on a person’s lifestyle, participation in voluntary associations or leisure-time activities, family life or other comparable personal circumstances of the person.” According to law, such information is absolutely confidential, which means that it must be kept secret at all times, and there is no possibility to ponder or consider the matter case-by-case. 

The key question is: can the fact that a person is a member of an organised crime group be confidential information, that is, be concealed on the grounds that it contains information on “a person’s lifestyle, participation in voluntary associations or leisure-time activities, or other comparable personal circumstances”?

When the police begin to resolve such an issue, the fact whether an authority that supervises the police has taken a stand on the issue before will be taken into account. One such authority is the Parliamentary Ombudsman of Finland. The Parliamentary Ombudsman has considered the issue of secrecy of information relating to a person’s private life in the decision issued on 23 November 2018. In the decision, the Parliamentary Ombudsman stated the following: “In any case, membership in MC Bandidos falls within the sphere of interpretation according to the wording of the section in question of the Act on Openness, as information on a person’s lifestyle, participation in voluntary associations or leisure-time activities, or other  comparable personal circumstances - - In this particular case, the secrecy of information is not particularly open to interpretation.”

So, according to the Parliamentary Ombudsman’s interpretation, information on a person’s membership in an organised crime group must be kept secret. In addition, the Parliamentary Ombudsman states that this is not unproblematic, but the tone of the wording in the Act is quite strict , and leaves no discretionary powers to the authorities. There would be grounds for the Parliament to amend the Act in this respect.

Why is the matter of broader significance?

The case in which the National Bureau of Investigation refused to disclose information to a journalist was related to membership in an organised crime group. However, the matter is of broader significance. 

The aforementioned grounds for secrecy in the Act on Openness cover information on private life quite comprehensively. The legislator’s principle has been that information on people’s private life should not be available in the public domain only because they become subject to measures by the authorities. Therefore, the law protects the individual in that if individuals must disclose information on their private life to the police in transactions with the police, such information should not be leaked further. 

It goes without saying that it is by no means the intention or wish of the police to protect members in organised crime groups, but rather the opposite. In fact, in certain situations it might even be “beneficial” for the police to disclose more information about the activities of certain individuals. However, the police must obey the law, even if it might result in interpretations that seem peculiar to the general public. The authority has no choice.

It should also be noted that basically, the trial is more widely public than the preceding criminal investigation process. In fact, it is common for courts to consider documents, that have been confidential at the pre-trial investigation stage, to be public. As such, this is only natural because the courts do not apply the same act on openness as the police. In this case, too, the information on names, kept secret by the police, could be obtained by requesting them from the court that processes the case instead of the police. Emphasis on the openness of legal proceedings is, in fact, one of the basic preconditions of a state governed by the rule of law. 

At the same time, it is clear that mutually differing laws that guide openness do not always serve the purpose of general predictability of the authorities’ activities, or reflect the sense of justice of the general public.

Legal proceedings on the matter are pending

Let’s go back to the beginning and the case in which the National Bureau of Investigation refused to disclose information on names to a journalist. The matter proceeded so that the journalist filed a complaint with the Administrative Court of Helsinki on the decision of the National Bureau of Investigation, and The Administrative Court ruled in its decision of 17 December 2020 that the information in question must be handed over to the journalist.

When this is compared with the decision of the Parliamentary Ombudsman, it becomes clear that the same case is interpreted in two different ways. On one hand, the Parliamentary Ombudsman finds the information confidential, and on the other, the Administrative Court finds   them public. On one side, journalists demand more comprehensive disclosure of information and on the other side, police officers have been prosecuted for the disclosure of such information. The fact that not even the policy of the Administrative Court of Helsinki is uniform does not make the matter any easier: In a decision issued on 11 October 2019, the Court found the decision of Helsinki Police Department correct, when the Police Department did not, based on the section of the Act on Openness on privacy protection, disclose to another journalist a video clip, included in a pre-trial investigation report on a narcotics offence, which revealed drug use and dosage of a party involved in the criminal case. Because this is a question of the same point of law being applied to a pre-trial investigation report, the decisions are contradictory.

In addition, we know that an appeal on the Administrative Court decision issued on 11 October 2019 has been lodged with the Supreme Administrative Court, and a ruling can be expected in the near future. 

In order for different cases to be processed in the same way, and to finally obtain a final decision on this highly problematic theme, and to have a guiding precedent on the matter, the National Bureau of Investigation decided, after discussing the matter with the National Police Board, to request leave of appeal from the Supreme Administrative Court in the case concerning the organised crime group.

Conclusion

The Act on Openness is, also judged on the basis of the Parliamentary Ombudsman’s decision (16 October 2020 the National Police Board’s interpretation on the publicity of pre-trial investigation material (oikeusasiamies.fi)) , difficult to interpret – particularly with regard to certain police duties and information processed by the police. The premise of the police is to implement the principle of openness, and the police has no needs of their own to keep information in pre-trial investigation materials secret, for example. The secrecy measures also require a lot of police resources, as the documents must be reviewed in detail, word by word, and any confidential information in the pre-trial investigation materials, comprising thousands of pages, must be concealed. 

The assessment by the police on what information is confidential and what is public is guided by the Act on Openness, which the police, as a public authority, are required to comply with. The Act on Openness is not, however, so precise that it could be applied as such to all cases encountered by the police. Instead, decisions by courts of law and the highest supervisors of legality have provided assistance in interpreting it. Only decisions by the highest courts can be used as actual precedents to steer the application of law.

The purpose of the openness manual issued by the National Police Board is to help all police officers in dealing with the challenging entity, when they, as public officials, assess the publicity or secrecy of the case at hand. In the manual, the National Police Board seeks to give police units the capacity to interpret the Act on Openness in a uniform manner, according to law and legal practice. It should be noted that the openness manual is a changing, living document that conforms to the judicial circumstances at each time. As soon as legal practice or the legislation changes, the manual will be updated accordingly. The police are now waiting for the final result of the aforementioned processes. And it is clear that, regardless of the final result, the openness manual of the police will be updated accordingly.

It is important in terms of the legal protection of police personnel that the interpretations of the Act on Openness would not be  unclear and that the Act would be applied correctly without a doubt. On the other hand, it is at least equally important that everyone’s rights are observed and taken into account in the proper way, including personal privacy, which the police must secure as a public authority.

The key wish of the police is that the Act on Openness be reviewed, updated and reformed as far as necessary to resolve the unclear points permanently and to ensure the predictability of the authorities’ actions and the legal protection and equality of citizens. In the decision issued on 16 October 2020, the Parliamentary Ombudsman also noted this need for reform. The Ministry of Justice has apparently already started updating the Act. It would be vital for the police to be given the opportunity to participate in the legislative process, and influence the reform in question – in the areas applying to the police, which are clearly highly challenging.

Niina Uskali
Assistant Police Commissioner
National Police Board