Instruction for the Auditor General

Executive Order No. 447 of 6 May 1992 issued by the Folketing on Instructions for the Auditor General regarding Rigsrevisionen’s Relations with the Public and Case Processing as amended by Executive Order No. 129 of 24 February 1999 and Executive Order No. 716 of 17 May 2006

  

Executive Order on
Instructions for the Auditor General regarding Rigsrevisionen’s Relations with the Public and Case Processing

Pursuant to section 18b of the Audit of State Accounts, etc., Act, cf. Consolidation Act No. 3 of 7 January, 1997, and after presentation to the Public Accounts Committee, the following is laid down:

Part 1
Scope of instructions

1. -(1) The provisions on the right of access to documents set out in parts 2-4 shall apply to all activities carried out by Rigsrevisionen. However, as regards legislation matters, including appropriation acts, the provisions of parts 2-4 shall apply only if a bill has been introduced to the Folketing (Parliament).

(2) Apart from the provisions of section 4, these instructions shall not apply to employment or promotion in Rigsrevisionen. The same shall apply to other matters concerning the employment conditions of individuals in Rigsrevisionen, cf. subsection (3) and section 2(2).

(3) In the cases mentioned in subsection (2), second sentence, the provisions regarding the right of access to documents, etc., shall apply to information about the employee’s name, position, education, duties, salary and business travel. For employees in management positions, the provisions shall also apply to information regarding disciplinary measures such as warnings or stricter measures. However, this shall only apply for a period of two years after a final decision about disciplinary measures has been made.

(4) The Auditor General may decide that the right of access to documents in cases comprised by subsection (2), second sentence, shall also apply to information other than that mentioned in subsection (3).

(5) The provisions of part 5 on disqualification shall apply to the handling of

(i) employment, promotion and other administrative cases which the Auditor General has decided or will decide,

(ii) audit cases even if they have not been or will not be decided by the Auditor General, and

(iii) cases concerning the conclusion of contracts or similar private law transactions.

(6) The provision of part 6 concerning access to documents of the party concerned, part 7 concerning the consultation procedure, part 8 concerning grounds for a decision, etc., and part 9 concerning appeal guidelines, shall only apply to the cases referred to in subsection (5)(i).

(7) The provisions of part 10 concerning duty of confidentiality, etc., shall apply to any activity carried out by Rigsrevisionen.

Part 2
Right of access to documents, etc.

2.-(1) Subject to the exemptions mentioned in sections 5-11, any person may demand to be informed of documents received or prepared by Rigsrevisionen in the course of its activities. The Auditor General may permit wider access to documents, unless otherwise provided by the rules on duty of confidentiality, etc.

(2) Subject to the exemptions listed in sections 5-8 and 11, any person whose personal circumstances are referred to in a document may demand to be informed of such details. However, this shall not apply where the considerations mentioned in section 10 or the interests of the person in question or others speak decisively against it.

(3) Applications according to subsections (1) and (2) shall specify the documents or the case of which the applicant wishes to be informed.

3.-(1) The right of access to documents shall include

(i) all documents relating to the case, including copies of outgoing letters from Rigsrevisionen once these letters can be assumed to have reached the addressee, and

(ii) entries in files, registers and other records relating to the documents of the case in question.

(2) The right of access to documents shall not include registers or other systematic records processed electronically, with the exception of the records referred to in subsection (1)(ii).

(3) The Auditor General can lay down rules for public access to information in electronic registers, etc.

4. In cases to be decided by the Auditor General, if Rigsrevisionen receives oral information regarding the facts of a case which is of importance to the decision, or such information has been disclosed to Rigsrevisionen in other ways, Rigsrevisionen shall make a note of the substance of the information. However, this shall not apply if the information can generally be found in the case documents.

Part 3
Exemptions from the right of access to documents
Internal working documents exempted

5. The right of access to documents shall not include Rigsrevisionen’s internal working documents. Internal working documents shall be deemed to be documents prepared by Rigsrevisionen for its own use.

6. Notwithstanding the provision of section 5, the right of access to documents shall comprise internal working documents available in final form when

(i) the documents solely reproduce the substance of the Auditor General’s final resolution regarding a decision,

(ii) the documents solely reproduce information of which Rigsrevisionen was obliged to make a note pursuant to the provision of section 4,

(iii) the documents are separate documents prepared by Rigsrevisionen to provide evidential or similar clarification regarding the facts of a case, or

(iv) the documents contain general processing guidelines for specific types of cases.

6 a. Documents submitted to the Auditor General pursuant to section 12(1) of the Audit of the State Accounts, etc., Act, and comprised by the provisions on exemption of internal documents from the right of access to documents of the Act on Public Access to Documents on Public Files, shall remain exempted after they were submitted, cf. section 12(2) of the said Act.

Other exempt documents

7. The right of access to documents shall not include

(i) minutes of ministerial meetings, and documents prepared by an authority for such meetings,

(ii) minutes of closed meetings in the Folketing, Rigsrevisionen or other bodies under the Folketing’s authority, and documents prepared by the Folketing, Rigsrevisionen or other body under the Folketing’s authority for such closed meetings and exempted from the rules laid down by the Folketing,

(iii) correspondence between ministries, the Folketing and bodies under the Folketing’s authority regarding legislation, including Appropriation Acts, unless otherwise provided by rules laid down by the Folketing,

(iv) documents exchanged when one authority carries out secretariat functions on behalf of another,

(v) Rigsrevisionen's and other authorities’ correspondence with experts for the purpose of legal actions or deliberations as to whether legal action should be conducted,

(vi) material provided for compiling public statistics or for scientific research,

 (vii) memoranda and reports to the Public Accounts Committee including drafts and extracts thereof until the day after the final document was submitted to the Public Accounts Committee.

Disclosure of facts

8. Notwithstanding these provisions, facts in documents comprised by sections 5 and 7(i)-(v) that are of material importance to the case shall be disclosed in accordance with the general rules in these instructions.

Exempt information

9.-(1) The right of access to documents shall not include information regarding

(i) the private circumstances, including the finances, of individuals, or

(ii) technical devices, processes, operations or business affairs and the like, if refusal of the application is of material financial importance to the person or enterprise to which the information relates.

(2) Where only part of a document is comprised by the provision of subsection (1), the applicant shall be informed of the remaining content of the document.

10.-(1) The right of access to documents can be limited as necessary to protect material considerations relating to

(i) state security or defence of the realm,

(ii) the country’s foreign policy or international trade interests, including relations with foreign powers or international institutions,

(iii) the prevention, clarification and prosecution of criminal offences, sentence enforcement and the like, and the protection of suspects, witnesses or others in cases regarding criminal or disciplinary proceedings,

(iv) the performance of public audits or control, regulation or planning activities, or proposed measures pursuant to tax legislation,

(v) public financial interests, including the performance of public commercial activities, or

(vi) special private or public interests requiring secrecy.

(2) Where the considerations mentioned in subsection (1) apply to part of a document only, the applicant shall be informed of the remaining content of that document.

Duty of confidentiality

11. The obligation to disclose information is not limited by the general duty of confidentiality according to the Danish Penal Code, cf. sections 30-34 of these instructions.

Part 4
Processing and deciding applications for access to documents

12.-(1) Where an application is made for access to documents that form part of a case in which the Auditor General has made or will make a decision, the Auditor General shall decide whether to grant the application. In other cases, applications for access to documents shall be decided by the authority from which the document originated.

(2) Decisions on access to accounting records, long-form audit reports, audit reports, other reports, correspondence and statistical material, etc., submitted to Rigsrevisionen for auditing, shall be made by the ministry or agency concerned, etc., according to subsection (1). The Auditor General shall make decisions according to subsection (1) on access to documents in audit matters regarding documents originating from Rigsrevisionen, including memoranda and reports to the Public Accounts Committee and other matters handled by Rigsrevisionen.

(3) Decisions made by the Auditor General on issues relating to access to documents may be brought before the Speaker of the Folketing, who shall make a decision after consulting the Deputy Speakers.

13.-(1) The Auditor General shall decide as soon as possible if an application can be granted and whether access to the documents shall be given to the applicant in the form of on-the-spot inspection or the issue of copies.

(2) Where an application for access to documents has neither been granted nor refused within ten days of Rigsrevisionen’s receipt thereof, the Auditor General shall notify the applicant of the reason for the delay and the time when a decision can be anticipated.

(3) If an application for access to documents is made in cases such as those mentioned in section 1(2), second sentence, the Auditor General shall inform the employee concerned of the application as soon as possible stating who made the application. Once a decision on access to documents has been made, the Auditor General shall notify the employee of the nature of the information disclosed.

Part 5
Disqualification

14.-(1) Any person working for Rigsrevisionen shall be disqualified if

(i) he or she has a particular personal or financial interest in the outcome of a case or represents or has previously represented a person having such interest in the same case,

(ii) the person’s spouse, relatives by blood or marriage in direct line of ascent or descent or related collaterally as close as nephews, nieces or other closely related persons have a particular personal or financial interest in the case or represent someone with such an interest,

(iii) such person takes part in the management of or is generally closely related to a company, an association or other private legal person with a particular interest in the case,

(iv) the person concerned previously participated in making the decision or implementing the measures to which the case relates while working for another public authority, or

(v) the circumstances concerned generally raise doubts about such person’s impartiality.

(2) However, a person shall not be disqualified if, as a consequence of the nature or strength of his or her interest, the nature of the case, or his or her functions in connection with the activity, there is no reason to suppose that irrelevant considerations may influence the decision in the case.

(3) A person who is disqualified in a specific case may not decide, participate in the decision, or otherwise assist in processing the case.

15.-(1) A person who is aware of the existence of circumstances relating to him or her as specified in section 14(1) shall inform his or her superior in Rigsrevisionen hereof as soon as possible, unless it is obvious that the circumstances are immaterial.

(2) The Auditor General shall decide whether a person is disqualified.

(3) The Auditor General shall submit the question of his or her own disqualification to the Speaker of the Folketing after notifying the Public Accounts Committee. After presenting the issue to the Public Accounts Committee and deliberating with the Deputy Speakers, the Speaker of the Folketing shall decide who shall perform the Auditor General’s functions if necessary. The President of the Folketing shall inform the Public Accounts Committee of the decision.

(4) If the Auditor General decides there is no reason to use the provision of subsection (3), an appeal against the Auditor General’s decision may be lodged with the President of the Folketing who shall make a decision after presenting the issue to the Public Accounts Committee and deliberating with the Vice-presidents. The President of the Folketing shall notify the Public Accounts Committee of the decision.

(5) The person concerned may not take part in processing the disqualification question, cf., however, subsection (3).

Part 6
Access to documents of the party concerned
Right of access to documents

16.-(1) The party to a case in which the Auditor General has made or will make a decision may demand to be informed of the case documents. The application must specify the case of whose documents the party concerned wishes to be informed.

(2) The general duty of confidentiality according to the Danish Penal Code, cf. sections 30-34 of these instructions, shall not limit the obligation to give access to documents according to this part.

Scope of access to documents

17.-(1) Subject to the exemptions mentioned in sections 19-22, a party’s right of access to documents shall include the documents and entries in registers, etc., referred to in section 3(1). (2) However, a person applying or having applied for employment or promotion in Rigsrevisionen can only demand to be informed of the documents, etc., relating to that person’s own circumstances. Postponing a case

18.-(1) If, during the processing of a case, a party applies for access to documents, and the application must be granted according to these instructions, the decision shall be postponed until the party concerned has been given an opportunity to familiarise him- or herself with the documents. (2) However, the provision of subsection (1) shall not apply if the party’s interest in having the decision postponed is deemed subordinate to the public or private interests speaking against such postponement. Exempt documents1

19.-(1) The right of access to documents shall not include Rigsrevisionen’s internal working documents, cf. section 5. (2) Notwithstanding the provision of subsection (1), facts of a case that are of material importance to the decision and contained exclusively in internal working documents shall be disclosed in accordance with the rules of this part.

20. Notwithstanding the provision of section 19, the right of access to documents shall include the internal working documents mentioned in section 6.

21.-(1) The right of access to documents shall not include the documents mentioned in section 7(i), (ii), (iv) and (v).

(2) Notwithstanding the provision of subsection (1), facts of a case that are of material importance to the decision and contained exclusively in the documents referred to in subsection (1) shall be disclosed in accordance with the rules of this part.

Exempt information

22.-(1) The right of access to documents may generally be limited to the extent the party’s interest in using knowledge of the documents to protect his or her interests is deemed subordinate to the critical interests of the party him- or herself or other private or public interests, including those mentioned in section 10(1)(i)-(v).

(2) If the considerations mentioned in subsection (1) apply to part of a document only, the party shall be informed of the remaining contents of the document.

Deciding applications for access to documents

23.-(1) The Auditor General shall decide whether and in what form an application for access to documents shall be granted. The provisions of sections 12 and 13(2) shall apply correspondingly.

(2) If copies of the case documents are important for a party’s ability to protect his or her interests, an application for copies shall be granted. However, this shall not apply if the nature of the documents, their number or form speak decisively against issuing copies.

Part 7
Consultation procedure

24.-(1) If a party to a case is assumed to be unaware that Rigsrevisionen holds certain information regarding the facts of the case, a decision may not be made until the Auditor General has informed the party of the information and given the person concerned an opportunity to make a statement. However, this shall only apply if the information is to the disadvantage of the party concerned and material to a decision. The Auditor General may set a time limit for submission of the said statement.

(2) The provision of subsection (1) shall not apply if

(i) according to the nature of the information and the nature of the case, it is not considered inadvisable to make a decision on the existing basis,

(ii) postponement causes a statutory time limit for making a decision to be exceeded,

(iii) the party’s interest in postponing the decision is deemed subordinate to material public or private interests speaking against such postponement, or

(iv) according to the rules of part 6, the party has no right of access to documents regarding the information concerned.

Right to make statements

25.-(1) A party to a case may at any time during the case processing demand that a decision be postponed until the party concerned has made a statement. The Auditor General may set a time limit for submission of the said statement.

(2) The provision of section 18(2) shall apply correspondingly.

Part 8
Providing grounds for a decision, etc.

26. Decisions notified in writing must be accompanied by the grounds for the decision, unless the decision is entirely in favour of the party concerned.

27.-(1) A person who has been orally notified of a decision may demand written grounds for the decision, unless the decision is entirely in favour of the party concerned. A request for written grounds must be submitted to the Auditor General within 14 days of the party being notified of the decision.

(2) A request for written grounds according to subsection (1) must be answered as soon as possible. If the request is not answered within 14 days of Rigsrevisionen’s receipt of the request, the Auditor General shall inform the party of the reason for the delay and the time when an answer can be anticipated.

28.-(1) The grounds for a decision must refer to the rules of law on which the decision was based. To the extent the decision is based on administrative discretion according to these rules, the grounds shall also state the chief considerations that were decisive for exercising the discretion.

(2) If necessary, the grounds shall also briefly outline the facts of the case that were of material importance for the decision.

(3) The contents of the grounds can be limited to the extent the party’s interest in being able to use the knowledge thereof to protect his or her interests is deemed subordinate to the critical interests of the party him- or herself or other private or public interests, cf. section 22.

Part 9
Appeal guidelines

29. Decisions made by the Auditor General that may be appealed to the Speaker of the Folketing shall, when notified in writing, be accompanied by guidelines on the right of appeal, stating the relevant appeals body and explaining the procedures for lodging an appeal. However, this shall not apply if the decision is entirely in favour of the party concerned.

Part 10
Duty of confidentiality, etc.
Duty of confidentiality

30. Any person working for Rigsrevisionen shall be bound by the general duty of confidentiality according to the Danish Penal Code, cf. sections 152 and 152c-152f thereof.

Disclosure of information

31.-(1) Information on the private circumstances of individuals, including details of race, religion, skin colour, political and organisational affiliation, sexual orientation, criminal record, health, serious social problems, stimulant abuse and the like, shall not be disclosed to any administrative authority, the Folketing or other body under the Folketing’s authority.

(2) However, the information mentioned in subsection (1) may be disclosed when

(i) the person to whom the information relates has given his or her consent,

(ii) it follows from an act or provisions laid down in pursuance of an act that the information must be disclosed,

(iii) disclosure protects private or public interests that clearly outweigh the interests that justify maintenance of secrecy, including the interests of the person to whom the information relates, or

(iv) disclosure is necessary for processing the case or for an authority’s implementation of supervision, control or audit tasks.

(3) Apart from the instances mentioned in subsection (2), other confidential information may only be disclosed to an administrative authority, the Folketing or other body under the Folketing’s authority when the information can be assumed to be of material importance to the activities of or decisions to be made by the authority, the Folketing or the body.

(4) Consent according to subsection (2)(i) shall be given in writing and state what type of information may be disclosed, to whom and for what purpose. However, the requirement for a written consent may be waived when the nature or the case or its circumstances generally speak in favour of it.

(5) Consent according to subsection (2)(i) shall lapse not later that one year after it was given.

32.-(1) In cases raised by application, information on the applicant’s purely private circumstances may not be obtained from an administrative authority, the Folketing or other body under the Folketing.

(2) The provision of subsection (1) shall not apply if

(i) the applicant has given his or her consent,

(ii) an act or provisions laid down in pursuance of an act provide otherwise, or

(iii) the special interests of the applicant or a third party clearly outweigh the applicant’s interest in such information not being obtained.

33. Confidential information obtained exclusively for statistical purposes may not be disclosed to an administrative authority, the Folketing or other body under the Folketing’s authority or for any other purpose.

34. Any person working for Rigsrevisionen may not act in this capacity to obtain confidential information that is irrelevant for the performance of his or her duties.

Part 11
Commencement

35. These instructions shall come into force on 1 July 1992.

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In accordance with Executive Order No. 129 of 24 February 1999, the amendments therein shall come into force on 20 March 1999.

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In accordance with Executive Order No. 716 of 17 May 2006, the amendments therein shall come into force on 8 July 2006.