Transparency as a core Finnish administrative value
Legal & Constitutional Basis of Transparency in Finland
Transparency (public access, openness) is entrenched in:
The Constitution of Finland (731/1999), specifically Article 12: “Documents and recordings that are held by government agencies are public, unless limited by compelling reasons through law.” This gives a constitutional right to access government information, subject to certain lawful exceptions.
Act on the Openness of Government Activities (621/1999, “Openness Act”) which elaborates the constitutional right, defines what “official documents” are, sets rules for disclosure, secrecy, and exceptions.
Decree on the Openness of Government Activities and on Good Practice in Information Management (1030/1999), which prescribes how authorities should manage documents, registers, how to respond to requests, etc.
Act on the Openness of Judicial Procedure in Administrative Courts (381/2007), which governs the openness of administrative court proceedings (access to procedural documents, public hearings, etc.)
These legal instruments together frame transparency as a default principle: openness is the rule; secrecy is the exception and must be justified by law.
Key Principles in Practice
From legislation and case law, some core transparency principles emerge:
Public documents are public: Most official documents, whether prepared or received by authorities, are accessible by anyone, unless a specified legal exception applies.
Secrecy exceptions must be narrowly interpreted: Secrecy is permitted only when a “compelling reason” or “important public/private interest” demands it, and law must clearly specify the basis.
Right of parties to a case is broader: Parties to administrative proceedings have broader access—even to some documents that are not in the public domain if they may have influenced the decision affecting them.
Transparency in judicial proceedings: Administrative courts’ decisions, procedural documents, hearings are generally public; restrictions allowed only under strict conditions.
Active duties of authorities: Authorities must not only respond to requests, but also assist, facilitate access, maintain registers, describe information holdings; maintain openness proactively.
Balance with other rights: Such as privacy, business secrets, national security, confidentiality, etc. Courts often perform balancing tests.
Case Law: Selected Decisions Illustrating Transparency in Finnish Administrative Law
Below are several important Finnish Supreme Administrative Court (SAC / KHO) decisions (plus other authorities) where transparency issues were central. For each: facts, legal issue, outcome, significance.
Case 1: KHO:2019:10 – Public procurement, legal professional privilege
Facts: In a public procurement tender, one of the bidders requested access to a legal opinion (attorney’s advice) prepared by its own lawyers that was part of the contracting authority’s decision award documents. This opinion related to the planned tender procedure.
Legal issue: Does the Openness Act (and related laws) require that such legal advice (an attorney‑client communication) be disclosed as an official document, or can it be withheld invoking legal professional privilege (attorney‑client secrecy)? How does transparency operate against confidentiality in this context?
Decision / Outcome: The Supreme Administrative Court held that, though documents in a tender procedure are generally subject to openness, the attorney’s opinion is protected by legal professional privilege. The Court refused access in this case, finding that the obligation of secrecy in the attorney‑client relationship is one of the preconditions for a fair trial, and that this privilege is recognized under Finnish law. Thus openness was curtailed, and the request for that opinion was denied.
Significance: This is a classic example of how transparency is not absolute; the Openness law allows for exceptions where confidentiality is necessary (here for legal professional privilege). It also shows that courts will carefully evaluate whether privilege applies, even where openness is strongly presumed.
Case 2: KHO:2019:83 – National Audit Office, memorandum & business secrets / legal professional privilege
Facts: Access was requested to a memorandum held by the National Audit Office concerning the derivatives positions of a government‑owned company, including legal advice and assessments, etc.
Legal issue: Whether parts of the memorandum are secret because they include assessments by legal advisers and/or contain business secrets or legal‑privilege protected information. How far must openness yield to protect those secrets?
Decision / Outcome: The Court found that yes, parts of the memorandum are secret. The parts reflecting legal advice from the company’s legal advisers (protected by legal professional privilege) were not to be disclosed. Also, business‑secret parts could be withheld. The company had not waived privilege. Thus, access was partially refused.
Significance: Reinforces that transparency must respect business secrets and legal privilege. Even audit/investigatory institutions are constrained by these rights. It also shows how courts parse documents, separating public vs secret portions, rather than all or nothing.
Case 3: KHO:2023:81 – GDPR Transparency / Data Protection & Openness
Facts: Posti Oy (Finnish postal service) was fined under GDPR by the Data Protection Ombudsman because it failed to provide adequate notice / active measures to inform data subjects about processing of their contact data, sharing with third parties, etc. The case implicates transparency obligations under GDPR (information to data subjects) and under domestic law about openness.
Legal issue: Whether the obligations of transparency under data protection law require that an entity actively ensure that data subjects can easily locate privacy policies, are clearly informed, including using links, making them accessible; whether failing that is a breach; also, does the Openness Act have relevance (in terms of public documents etc.)?
Decision / Outcome: The Supreme Administrative Court upheld the imposition of the fine, emphasizing that controllers (here, Posti Oy) must take active steps to inform data subjects. Just having hidden or hard‑to‑find links is insufficient. Hence, transparency requires not just minimal compliance, but that information be accessible, visible, clearly signposted.
Significance: Transparency in this domain is not just about documents being in a registry somewhere; it's about real usability and accessibility. This case shows Finnish law demands that data subjects be meaningfully informed. This demonstrates transparency as a core administrative value beyond mere formal obligations.
Case 4: Public Access to Judicial and Administrative Court Proceedings (General Principle / Act on Openness of Judicial Procedure and Administrative Courts)
Facts: Many cases where procedural documents and hearings are public by law (Act on Openness of Judicial Procedure in Administrative Courts, etc.). There isn’t always a single ‘case’ summarised, but the legal framework establishes openness of court proceedings and access to documents; exceptions for secrecy (especially in areas like social welfare, health, immigration, private life).
Legal issue: How far does openness extend? When can oral proceedings be held in closed session? When can documents be withheld? What rights do parties have to see documents, including secret ones, if relevant to their case?
Outcome / Practice: Administrative courts by default publish procedural documents; oral proceedings are public except where secrecy laws require partial or full closure; parties have broader rights. The courts balance between transparency and protection of privacy or other interests; the law requires the identity of parties sometimes to be withheld; addresses some categories of secret information.
Significance: This is very foundational: transparency in courts enforces accountability, legality, and public trust. The standards are embedded in both statute and practice. These legal norms ensure that administrative justice is not hidden.
Case 5: KHO:2019:98 – Competition Case and Legal Professional Privilege / Openness
Facts: The large “bus cartel” case (Matkahuolto etc.), discussed earlier, but with an important transparency dimension: parties asked for access to witness statements, to legal advice, etc.; challenges about what must be disclosed in administrative court context.
Legal issue: Among many legal issues, part concerned whether certain documents (witness statements, email correspondence referencing legal advice) should be disclosed; whether legal professional privilege applies; also whether oral proceedings at the SAC should be held.
Decision / Outcome: The SAC in that decision upheld legal professional privilege for certain legal advice in emails, refusing disclosure. The Court also held that the requirement for oral hearing is not automatically triggered in all cases — especially when first instance proceedings already had oral hearing.
Significance: Again, this shows balancing: transparency is strongly protected, but so are rights like attorney‑client confidentiality, and institutions must ensure fairness, not necessarily full openness in every part. Also that SAC treats legal professional privilege seriously, even inside competition law where public interest is strong.
Other Notable Situations / Oversight
Transparency in open government / lobbying register: Finland has a “Transparency Register” (avoimuusrekisteri) for lobbying / influencing decision‑making. The Register is part of open government measures, aiming to make decision‑making more transparent. Authorities must also produce descriptions of their information holdings. avoimuusrekisteri.fi+2Sosiaali- ja terveysministeriö+2
Ombudsman on reform of Openness Act: The Parliamentary Ombudsman (or Office of the Ombudsman) has pointed out that some provisions in the Openness Act are unclear, especially about overlap of different secrecy criteria, or about pre‑trial investigation material; has recommended legislative reform to clarify transparency / secrecy boundaries. Oikeusasiamies
Balancing Transparency vs Competing Interests
From the above cases, we see recurring tensions, and how the courts resolve them:
Attorney‑Client Privilege / Legal Professional Privilege: Even where openness is the norm (e.g. procurement, or competition law), documents containing legal advice may be withheld. Transparency is balanced against the right to a fair defence. (E.g. KHO:2019:10; KHO:2019:98).
Business Secrets / Confidential Commercial Information: Disclosure of internal documents from companies (pricing, strategic assessments) may be blocked under secrecy if they are business secrets. The law provides for restricting access in these cases. (E.g. KHO:2019:83).
Privacy / Data Protection: Documents that contain personal data or sensitive information (health, private life) are subject to data protection laws; there may be restrictions, or redactions.
National Security & Pre‑trial Investigation Material: Some documents or hearing parts may be secret due to law, e.g. criminal investigations, police, intelligence etc.
Fair Trial / Right of Defence: Even when documents are secret, relevant portions may need to be disclosed to parties in litigation or administrative procedure, especially when they affect that party’s case.
Time / Delay vs Right of Access: Sometimes active steps are required by authority to facilitate transparency; delays in providing information may themselves violate openness law (or data protection etc.).
Implications & Recent Developments
GDPR intersection with transparency: The Posti case (KHO:2023:81) shows transparency in personal data processing is not just about openness in public documents, but also about making privacy policies, data sharing, easily accessible and visible to data subjects.
Case law clarifying professional privilege: The 2019 cases clarified that not all documents in administrative or public cases are public; legal advice prepared by external or internal legal counsel may be treated as privileged.
Calls for reform: Because of some ambiguity in secrecy criteria and overlap of several secrecy provisions, there are recommendations to reform the Openness Act to make the rules clearer.
Transparency in courts: The administrative court system ensures openness of proceedings and documents, which supports public trust and accountability; transparency also helps ensure decisions are properly reasoned, and errors can be detected and corrected.
RELATED Blog
0 comments