Case Summary and Outcome
The European Court of Human Rights’ Grand Chamber held that a public employee is not protected under Article 10 of the Convention when he refuses to make research material available in cases where (i) such material belongs to a university, (ii) a university is ready to disclose it, and (iii) the employee does not owe any statutory duty of secrecy towards research participants. The Applicant, a university professor leading a project on specific disorders in children, had been convicted for misusing his office after refusing to hand over documents to outside researchers on the grounds that he had promised absolute confidentiality to the patients and their parents. While the Court did not rule out that a negative right to freedom of expression (a right not to impart information) might be protected under Article 10 of the Convention under certain circumstances, in the present case, the Court ruled that the research material was owned the University and that finding for the Applicant would run counter to the university’s property rights and also impinge upon the outside researchers’ rights to access the public documents. The Court also rejected the Applicant’s argument that his situation was similar to a journalist protecting sources or to a lawyer-client privilege, finding instead that since the Applicant had not been mandated by the research participants as their doctor, he had no duty of professional secrecy towards them.
This case analysis was contributed by Right2Info.org.
The Applicant, a university professor, was responsible for a research project on hyperactivity and attention-deficit disorders in children that was carried out between 1977 and 1992. According to the Applicant, the university’s ethics committee had made it a precondition for the project that sensitive information about the participants would be accessible only to him and his staff, and he had therefore promised absolute confidentiality to the patients and their parents. In 2002, a researcher from another university and a pediatrician requested access to the research material. After their requests were refused by the university, they appealed to the Administrative Court of Appeal, which found that they had demonstrated a legitimate interest and should be granted access to the material, conditional upon certain restrictions on its use and a ban on removing copies from the university premises. The Applicant refused to hand over the material, however, and his colleagues eventually destroyed it. The Applicant was subsequently prosecuted and convicted of misusing his office. He relied on a “negative” right to freedom of expression, the right not to give information under Article 10 and Article 8 (respect for private and family life), to oppose the criminal conviction.
In a judgment of 2 November 2010 (see Information Note no. 135) a Chamber of the ECtHR held by five votes to two that there had been no violation of Article 8 of the Convention and no violation of Article 10. The applicant requested a referral of the case to the Grand Chamber.
The Court found that the disputed material belonged to the university and consisted of public documents subject to the principle of public access under the Freedom of the Press Act and the Secrecy Act. Under Swedish legislation, it was impossible for a public authority to enter into an agreement with a third party in advance exempting official documents from the right to public access. For this reason, the assurances of confidentiality the Applicant had given to the participants in the study went further than was permitted by law. In any event, the Administrative Court settled the question of whether and on what conditions the documents were to be released to the two researchers. The Applicant was not prevented from complying with the judgments by any statutory duty of secrecy or any order from his public employer.
The Court did not rule out that a negative right to freedom of expression (a right not to impart information) might be protected under Article 10 of the Convention. However, it pointed out that the crucial question was whether the Applicant, as a public employee, had an independent negative right not to make the research material available in circumstances where (i) it belonged to the university and (ii) the university had intended to comply with the Administrative Court’s orders. In the Court’s view, finding for the Applicant would run counter to the university’s property rights and also impinge on the two researchers’ rights to receive information in the form of access to the public documents concerned (protected under Article 10) and to have a final court judgment implemented (protected under Article 6).
The Court also noted that the applicant’s situation could not be compared to that of journalists protecting their sources as the information obtained by a journalist based on his or her source generally belonged to the journalist or the relevant media outlet, whereas in the Applicant’s case the research material was owned by the university and was in the public domain. Further, the Applicant was not the doctor of the research participants and therefore did not owe them any duty of professional secrecy.