Professional Documents
Culture Documents
of Information Act
Publications 2
Anders Chydenius Foundation’s Publications 2
Printed by:
Art-Print Ltd
Kokkola 2006
ISBN 952-99519-2-2
ISBN 952-99519-3-0 (PDF)
ISSN 1795-5297
Contents
Introduction: Anders Chydenius’ Legacy Today
Gustav Björkstrand & Juha Mustonen 4
Introduction:
Anders Chydenius’ Legacy Today
Freedom of information (FOI) is a human right. In order to make govern-
ments accountable, citizens have the right to know - the right of access
to official documents. Freedom of information has been developing at a
strong pace only recently, but it is hardly a new concept. The roots of the
FOI principle date back to the 18th Century, the Age of Enlightenment.
In Sweden and Finland, 2006 is observed as the 240th Anniversary
of the Freedom of Information. The world’s first freedom of information
legislation was adopted by the Swedish parliament in 1766. This publi-
cation includes the English translation of this ordinance on freedom of
writing and the press. The enlightenment thinker and politician Anders
Chydenius (1729-1803), from the Finnish city of Kokkola, played a crucial
role in creating the new law. As Professor Juha Manninen describes in
his article, the key achievements of the 1766 Act were the abolishment
of political censorship and the gaining of public access to government
documents. Although the innovation was suspended from 1772-1809, the
principle of publicity has since remained central in the Nordic countries.
Over recent decades, Anders Chydenius’ legacy has received increased
recognition globally. With the creation of the United Nations and inter-
national standards on human rights, the right to information began to
spread. Freedom of information is recognized in international law. Article
19 of both the Universal Declaration on Human Rights and the Interna-
tional Covenant on Civil and Political Rights provide that every person
shall have the right to seek and impart information. There is growing
recognition that the right to seek information includes a right of freedom
of information.
Over the last 40 years there has been a dramatic increase in the
number of countries that have adopted freedom of information laws. A
milestone was the US Freedom of Information Act (FOIA) of 1966, and
many countries started to follow the FOIA model on access to govern-
ment documents. According to a global survey, some 70 countries have
now adopted comprehensive Freedom of Information Acts. Fifty countries
have legislation pending. This global situation is discussed by Thomas
Soon after the death
of Anders Chydenius
(1729-1803), this
mezzotint copy of his
portrait was repro-
duced by J.F. Martin
in 1805 to be distri-
buted to Chydenius’
friends in Sweden
and Finland (K.H.
Renlund’s Museum,
Kokkola, Finland).
as Minister of Justice Leena Luhtanen states here. Prospects of the EU’s
transparency are discussed in more detail by Tony Bunyan, Editor of State-
watch (UK). To raise public discussion on these transparency challenges
of the EU, the Anders Chydenius Foundation has decided to convene an
international seminar on eve of the 240th Anniversary of the Freedom of
Information, on 1 December 2006 in Helsinki.
The principle of publicity (offentlighetsprincipen) in Finland is
discussed by Professor Olli Mäenpää. The experience of Finland, Anders
Chydenius’ home country, shows that transparency in the decision-ma-
king process is beneficial also to governments themselves by improving
citizens’ trust in government actions. This should be kept in mind when
discussing the contemporary challenges of transparency.
With this publication, the Anders Chydenius Foundation aims to pro-
vide a brief introduction to the origins of FOI principle. We hope to raise
awareness about Chydenius’ legacy concerning freedom of information
- and to inspire us all to continue to work for the citizens’ right to know.
Finally, we would like to thank the authors and all those who contri-
buted to producing this 240th anniversary publication.
I
THE FIRST FREEDOM
OF INFORMATION ACT
His Majesty’s Gracious
Ordinance Relating to
Freedom of Writing and
of the Press (1766)
Anders Chydenius took an active part in the Diet of 1765-66. One of the
lasting results of his activities was this Ordinance on Freedom of Writing and
of the Press (1766), which he considered himself to be one of his greatest
achievements.
be responsible, together with the printers, for what will appear in print,
subsequent to this gracious ordinance, by which the former censorship
regulations are entirely repealed; although, with regard to the importa-
tion and sale in the bookshops of harmful books, the supervision of that
will remain with Our Chancellery and the respective consistories, whose
obligation it is to ensure that no banned and corrupting books, whether
on theological or other subjects, may be disseminated.
10
§3. Should anyone dare to include vituperative or disparaging opinions
of Us and of Our Royal House in published writings or to make such im-
putations against any of the Councillors of the King and the Realm that
concern their honour or are otherwise defamatory, he shall be judged by
statute law.
Should anyone similarly offend in the aforesaid manner against the Es-
tates of the Realm, he shall, according to the greater or lesser seriousness
of the offence, either be condemned to death or be punished with some
other severe physical penalty.
Should anyone write a libel, or what may otherwise be insulting or
disparaging, against the officials of the realm or any other citizen, he shall
incur the penalty laid down in statute law. Nor shall it be permitted for
anyone to indulge in abusive statements in public writings about crowned
heads or their closest blood relatives and contemporary ruling authori-
ties; nor to write or publish in print anything by which a manifest vice is
promoted or justified and is thus incompatible with decency, a just natural
and Christian ethics and its principles; whoever offends against this shall
be liable to a fine of three hundred daler in silver coin.
§4. The printer shall display the name of the author on the title-page,
unless the latter wishes to remain anonymous, which should not be de-
nied him, in which case the printer, for his own protection, shall obtain
from him a written acknowledgement that he has written the publica-
tion; notwithstanding which, whether or not the publication lacks the
name of the author, the name of the printer himself and that of the town
where the printing has taken place, as well as the date, should always be
displayed on it; if the printer neglects to do so, he shall pay a fine of two
hundred daler in silver coin.
If the publication lacks the name of the author and the printer, were it
to be prosecuted, is demonstrably unwilling to reveal it, he himself shall
bear the entire responsibility that the author of the publication should
have borne; but if he is willing to name the author, he shall be freed from
all responsibility.
Of everything that is printed the printer shall be obliged, in the estab-
lished manner, to deliver six copies, as soon as they have been printed,
of which Our and the Kingdom’s Chancellery, the State Archives, Our
Library and all three universities in the kingdom shall each receive one
copy; should the printer neglect to do so, he shall pay a fine of one hun-
11
dred daler in silver coin; and in order that offences against this gracious
ordinance may be duly prosecuted, it shall not only be the duty of Our
Chancellor of Justice and the respective ombudsmen and public prosecu-
tors to maintain close supervision over this matter and bring offenders to
lawful conviction; but We also wish to permit every loyal subject of Ours
to have the right to act as plaintiff in cases concerning offences against
this ordinance, which shall always be pursued in a proper manner before
the appropriate court, following a lawful summons, allowing both par-
ties to enjoy their lawful procedural rights; and the judge shall likewise,
at the very outset of the trial, examine whether there may be grounds for
impounding all available copies of the prosecuted publication and placing
them in safe custody until the conclusion of the case; if the publication
is eventually deemed harmful and banned, all copies should be confis-
cated and destroyed. If the plaintiff, on the other hand, is found to have
brought the action without sufficient reason, he shall face the same pen-
alty that the accused would have undergone, had he been found guilty,
and shall in addition be liable for all costs.
§5. What We have thus expressly decreed in the first three paragraphs
concerning that which shall be deemed to be prohibited in writing and in
print no one may in any manner cite or interpret beyond its literal word-
ing, but everything that is not clearly contrary to that is to be regarded as
legitimate to write and print, in whatever language or in whatever style
it may be written, whether on theological topics, ethics, history or any
of the learned sciences, concerning the public or private economy, the
activities of government departments and officials, societies and associa-
tions, commerce, trades, handicrafts and arts, miscellaneous information
and inventions and so forth that may be of utility and enlightenment to
the public; as also no one shall be denied the right to publish treatises
concerning the public law of the realm and matters connected with it, in
which everyone, provided that the publication in no way offends against
the irrevocable foundations of the political constitution referred to in
the second paragraph above, shall have unrestricted freedom to present
their thoughts on all matters that concern both the rights and duties of
the citizens and may serve to produce some improvement or the preven-
tion of harmful consequences; which freedom shall also extend generally
to all laws and regulations that have already been promulgated or will be
promulgated hereafter.
It shall also in equal measure be permitted to write and print mate-
rial concerning the relations of the kingdom with other powers and the
12
advantage or harmfulness of former or more recent alliances, or state-
ments made regarding them; in which regard all treaties concluded with
foreign powers may likewise be printed, although not any part of them
that should remain secret; even less shall the right be denied to produce
and have printed any accounts of the civil constitutions of other nations,
their advantages, intentions, commerce and economy, strengths and
weaknesses, character and customs, achievements and mistakes, whether
specifically or comparatively.
§6. This freedom of the press will further include all exchanges of cor-
respondence, species facti, documents, protocols, judgments and awards,
whether they were produced in the past or will be initiated, maintained,
presented, conducted and issued hereafter, before, during and after pro-
ceedings before lower courts, appeal and superior courts and government
departments, our senior administrators and consistories or other public
bodies, and without distinction between the nature of the cases, whether
these are civil, criminal or ecclesiastical or otherwise in some degree
concern religious controversies; as well as older and more recent appeals
and expositions, declarations and counter-declarations that have been or
will be submitted to the Chambers of Our Supreme Court as well as the
official correspondence and memorials that have already been or may in
future be issued from the Office of the Chancellor of Justice; although no
one may be obliged to obtain and print more of all this, either in extenso
or abridged as a species facti, than he himself requests and regards as ad-
equate and which, when requested, shall immediately be issued to anyone
who applies for them, on penalty of the provisions in the following para-
graph; but in criminal cases that have been settled by an amicable recon-
ciliation between private individuals no one may, without the agreement
of the parties, make use of this freedom as long as they remain alive; while
also, if anything concerning grave and unfamiliar misdeeds and abomina-
tions, blasphemies against God and the Head of State, evil and cunning
schemes in these and other serious criminal cases, superstitions and other
such matters should appear in court proceedings or judgments, they shall
be completely excluded.
13
from both suspicions and pejorative opinions; We have therefore, in order
to prevent the several kinds of hazardous consequences that may fol-
low from imprudent votes, likewise graciously decided that they shall no
longer be protected behind an anonymity that is no less injurious than
unnecessary; for which reason when anyone, whether he is a party to
the case or not, announces his wish to print older or more recent voting
records in cases where votes have occurred, they shall, as soon as a judg-
ment or verdict has been given in the matter, immediately be released for
a fee, when for each votum the full name of each voting member should
also be clearly set out, whether it be in the lower courts or the appeal and
superior courts, government departments, executory authorities, con-
sistories or other public bodies, and that on pain of the loss of office for
whosoever refuses to do so or to any degree obstructs it; in consequence of
which the oath of secrecy will in future be amended and corrected in this
regard.
§8. Concerning the votes of the members of the Council of State, apart
from cases that concern secret ministerial matters, as well as reports and
statements on those applications and appeals that will be or have been
submitted to the Estates of the Realm, the law shall, on the same grounds
and in the same manner as in the preceding paragraph, be the same.
§10. The printing shall moreover be permitted of all the judgments and
awards, decisions, rescripts, instructions, rules, regulations and privileges,
with more of the same of whatever kind and nature they may be that
have been issued in the past or will be issued in future from Our Council
Chamber and Chancellery, government departments or offices, as well as
the appeal and superior courts and the official boards of the realm, togeth-
er with the public correspondence of their and other officials; also includ-
ed among which are all memorials, applications, projects and proposals,
reports, appeals, with decisions and responses to them from societies and
14
public bodies as well as private individuals, including the documented
proceedings and official duties, both legitimate and illegitimate, of all
officials, together with whatever then occurred, whether advantageous or
harmful. And to that end free access should be allowed to all archives,
for the purpose of copying such documents in loco or obtaining certified
copies of them; responsibility for the provision of which is subject to the
penalty laid down in §7 of this ordinance.
§12. A truthful history of former kings and regents and their minis-
ters has been highly regarded by most nations both in former and more
recent times, as directly raising important issues, in order to convey to the
governing lords and commoners memorable judgments on wise and com-
mendable achievements and, on the other hand, very necessary warnings
against rash, imprudent, malicious or even cruel and ignominious deci-
15
sions and deeds, as well as to enable the subjects, from events in former
reigns, all the better to comply with, be aware of, understand, value and
defend the obligations, freedoms and rights that they possess, as well as
public and individual security. In order that nothing should be lacking
in such historical works that may serve to ensure their completeness, We
also wish to extend to them the freedom of writing and of the press to the
extent that all specific events or known incidents, in part secret and in
part more familiar, that have occurred under past governments, either in
this kingdom or elsewhere, may be made public, together with political
comments on them.
§14. And in order that Our loyal subjects may in future possess that
complete confidence with regard to the assured preservation of the free-
dom of writing and of the press outlined here that an irrevocable funda-
mental law provides, We herewith wish to declare that no one, whoever
he may be, on pain of Our Royal displeasure, shall dare to advocate the
slightest elaboration or limitation of this gracious ordinance, much less
attempt on his own authority to achieve such a limitation to a greater
or lesser extent, and that not even We Ourselves will permit anyone to
make the slightest modification, alteration or explication that could lead
to the curtailment of the freedom of writing and of the press.
§15. The fines listed in this gracious ordinance will be distributed three
ways.
16
Which all those whom it concerns shall obediently observe. In confir-
mation of which We have signed this with Our own hand and certified it
with Our Royal seal. Stockholm, in the Council Chamber, on 2 Decem-
ber 1766.
ADOLPHUS FREDERICK.
(L. S.)
Johan von Heland.
17
Anders Chydenius
and the Origins of World’s First
Freedom of Information Act
By Juha Manninen
Introduction
is the history of ideas – , but before going to the actual drafting of the
Swedish FOIA, it is necessary to highlight the ideological backgrounds
of the key actors in the process. I will look at how the first FOIA was
composed, the steps and conditions that made it possible, and analyse its
different elements on the human plane.
Of some of the phases of the story inferences can be based only on
circumstantial evidence. But there are also preserved writings by An-
ders Chydenius, primarily those in which he made preparations for the
Act, but also some short memoirs. Of additional interest is the fact that
Chydenius came from a periphery of the Swedish Realm, from the north-
ern and middle parts of Finland, and that he had an office in the service
of the Church, though he was still undeniably a versatile Enlightenment
philosopher, representing democratic thought, as we would say today.
How could such a person, a priest from the countryside be active in mak-
ing radical reforms?
In its original formulation the Swedish Freedom of the Press Act was
short-lived, a mere six years, but its effect on the general consciousness
19
about rights was indelible. It was recurrently returned to in new forms.
After various developments the way of thinking expressed by the Free-
dom of Press Act of the Swedish Realm has today become a cornerstone
of the worldwide struggle for freedom of information. It is conceived as
the prerequisite of the freedom of expression, widely seen as belonging to
human rights, and it is just a matter of time when it will finally be ac-
knowledged to be an integral part of them.
The principle of the freedom of information has been approved as
part of legislation throughout the world in about 70 countries, and at its
strongest within constitutions. 35 of the approving states of the FOIAs
are due to the unprecedented worldwide revolution in openness of the
1990s. The number is growing every year. And yet even today there are
drawbacks that threaten FOIAs in individual countries.
At present freedom of information is recognised as the most effective
way to prevent corruption in developing countries, but Thomas S. Blan-
ton, the Director of the National Security Archive of the George Wash-
ington University underlines its worth in promoting security in general.
The consciousness of citizens and their ability to act on it is often a more
important security factor than exaggerated secrecy measures. Perhaps the
best confirmation of such a view can be found in the history of the Nordic
Countries, where general and high education, social mobility and open-
ness have been at the top of political agendas.
A few words about the history of Sweden/Finland in general are
needed. The Swedish Diet of the so-called Age of Liberty (1719-1772)
was an early experiment in parliamentarism, the only one of its kind
aside from the English Parliament. The name given to the period refers
to the shift of power from the Monarch to the Estates. In effect it meant
the liberty of the Estates. The Swedish Diet was divided into four Estates:
nobility, clergy, burghers and peasants. In Sweden, the peasants were free
and Lutheran priests had in many cases good contacts with them.
When the Estates assembled they had all power, and the ruling Senate,
Council of the Realm, was responsible to them. The King was little more
than a representative figure. As happens in parliamentarism, there were
parties but they did not have any powerful nation-wide organizations and
they were concentrated mostly in Stockholm. The Hats dreamed of mak-
ing Sweden again a great European power and were supported by France.
The Caps thought than such times were past. They had the support of
England and Russia. After losing Finland to Russia in the war of 1808,
Sweden was never engaged in further wars.
20
Finland had the same rights as other ancient parts of Sweden, the
main difference being the language and origin of the major part of the
population. The country succeeded in defending its Swedish legal order
when it was later transformed into part of the Russian Empire. However,
the legal order of Finland in the 19th century was not that of the Age of
Liberty but the following one, dating from Gustav III’s era, one that was
friendlier to the Emperor. Still, some of the old rights were sensitive from
the Emperor’s point of view, but the autonomous status given to Finland
made possible a consolidation of this nation and state and, indeed, a
number of modern reforms and a democratic development. The 19th
century was for Finland one of peace and nation building, under the guid-
ing device formulated by philosopher and statesman J.V. Snellman that
the strength of a small nation lies not so much in its arms but in its level
of education and culture, making it and its individual citizens capable of
rational action and integrating the thus enlightened population into the
network of global civilisation.
In 1906, the Finnish Diet, which was modelled on the Swedish one,
could be turned into a single chamber parliament where all men and
women could be represented and elected according to a general, unquali-
fied right to vote – the first of its kind in the world. After gaining full
sovereignty in 1917, Finland never lost its democracy. It was attacked by
the Soviet Union in 1939 because of the Stalin-Hitler pact. It lost ten
percent of its area in the Second World War, being the only democracy
fighting against Stalin’s aggression, but at a high cost it remained one of
the few European countries not occupied by foreign powers. After the war
it was busy building a democratic welfare state in the company of other,
in many ways similar, Nordic Countries. As this is being written, it has for
the second time the presidency of the European Union, which is, contrary
to pessimistic voices, emerging as a global peace providing player.
21
memoirs he even claimed that “for nothing else did I work in the Diet as
diligently as the freedom of writing and printing”.
All writing about the foundations of affairs of the state had so far been
banned in Sweden, literally all writing, also with pen on paper, not just
the publishing of ideas. If one was discovered in possession of forbid-
den materials, no explanations that it was written for oneself only or
at the most in a letter to a friend were of any help. Therefore the act of
the freedom of press would contain the curious double characterization:
the freedom of both writing as such and of publishing it in the press and
books, skrif- och tryckfrihet.
When Anders Chydenius, a young Church employee in the small
county parish of Alaveteli, became politically active it was to become an
important incentive to the development that led to the freedom of infor-
mation in Sweden. This happened when he participated as a speaker in
1763 in the provincial meeting (in Chydenius’ words, en allmän landtdag)
that the deputy Governor of Ostrobothnia Johan Mathesius had sum-
moned in Kokkola. The main incentive for Chydenius to set out to the
assembly was the freedom of commerce of the Gulf of Bothnia that had
long been aspired to. The political wind was changing after decades of
rule by the Hats. The opposition party, the Caps, and its new radicals,
including Chydenius, would soon attain prominent positions.
Chydenius was a priest who pondered many issues relevant to daily
existence. He practiced agriculture and its reform according to the latest
knowledge, herded merino-sheep, cultivated tobacco for sale, and partici-
pated in the cultivation of potatoes introduced to Finland by the war over
Pomerania, better known as the Seven Years War. He was also an active
medical practitioner, giving health advice, vaccinations and practicing
surgery, and in addition he wrote a treatise on the causes of moss spread-
ing in meadows and its prevention. Since there were no apothecaries
nearby, he learned the making of medicines.
This makes you wonder what kind of education Anders Chydenius
received when studying at the Academy of Turku and for a shorter time at
the University of Uppsala. All was not due to Chydenius’ exceptional ini-
tiative. The degree he took involved manifold studies in the most diverse
subjects of the small but broadly oriented university of Finland, and not
only concentrated on theology.
According to the project of the Enlightenment, human individual
reason would form the basis for processes of progress in all fields of life.
22
The ideas of humanity, freedom, equality and happiness were not in
themselves unique or new, whereas confidence in the possibility to com-
bine them to the rationality expressed by modern science, technology and
economy was a revolutionary idea.
The Enlightenment can be regarded as a universal European phenom-
enon that also reached beyond its borders. The philosophical, scientific,
economic, political, cultural and religious contexts related to its birth
differed from country to country. Its point of departure was the move to-
wards peace, reconstruction, the restoration of economies and mutual in-
teraction in Europe after the storms of the early Eighteenth Century. The
possibility for a peaceful comparison of conditions in different countries
gave birth to critical standpoints and the will to make reforms, which lit-
tle by little were channelled into the programmes of the Enlightenment.
After its Glorious Revolution England became the general ideal
for the early Enlightenment, especially in France through the works of
Voltaire. The Netherlands which had realized the freedom of printing,
gave an important contribution to making the Enlightenment possible
in a wider European context. Hanover, which had a personal union with
England, was to bring the Enlightenment to the German countries and to
Scandinavia especially via the new University of Göttingen.
There was no one great Enlightenment movement in Sweden, though
there were Enlightenment tendencies. There were also individual En-
lightenment perpetrators, such as Peter Forsskål and Anders Chydenius.
Both promoted the same goals, Forsskål ideating them, Chydenius actu-
ally realizing a number of them and fighting for more. There is no proof of
a direct literal connection between the two men, despite the correspond-
ences in their thinking. Politically, both belonged to the Caps, although
not in any strong sense. Chydenius was a disciple of the Enlightenment-
spirited professors of the Academy of Turku, but unlike his instructors
who tended towards the Hats, he found himself siding with the Caps.
In Sweden there was no Enlightenment programme against the
state as in France for the simple reason that Sweden had an early form
of parliamentarism. When the Estates did not meet, the Senate had to
follow their instructions. If the scrutiny of the records of the Senate by
the Estates then showed this had not been the case, the Senate members
responsible for “errors” could be dismissed. This is also what happened in
practice. Different parties could gain governance in the country, though
especially the Hats who had long had the lead, throughout Chydenius’
youth, had been able to stay in power even after taking the country to
23
disastrous wars. The point is that under such a mode of governance it was
possible to affect a change in society without taking recourse to violence
against the state.
The precondition of being able to affect such change was to have free
access to information of the state of affairs and to express one’s opinions
about them. The Caps, who most clearly felt the need for a change, espe-
cially the radical ones coming from peripheral parts of the realm, under-
stood this best.
Anders Chydenius was not widely travelled in Europe at all. He trav-
elled only within the realm, first to the universities of Turku and Uppsala
and then to the Diet in Stockholm as one of the junior members of the
Estate of Clergy. Nor did he become a courtier during his stay in the
prosperous capital. He had only a limited circle of acquaintances, though
his thinking was not limited, and by appealing to publicity, exploiting the
possibility to publish political writings during the Diet, he made up for his
lack of influence. He also clearly had a network of relations behind the
scenes.
Most of the authors discussed here had a common background in the
peripheral regions of the country, families that moved from one place to
another, and a tortuous process of social rise. Such a background made
it possible to perform comparisons and develop a critical stand. Anders
Chydenius was born in Sotkamo, an absolute periphery of peripheral Fin-
land. Johan Arckenholtz and Peter Forsskål were born in Helsinki which
at that time was quite an unimportant centre, the most flourishing Finn-
ish city being Turku. All three also came from peripheral parts of Finland,
which however had their connections to the centres of state politics and
academic life. Arckenholtz’es father was the Secretary of Uusimaa and
Häme county, Forsskål’s and Chydenius’ fathers were priests, thus in a po-
sition where it was necessary to know the vernacular and the conditions
of local population. Having a background in periphery and experience
of mobility brought together many critical voices, including the prolific
political writer Anders Nordencrantz, who came from Northern Sweden,
but had been in England and knew Europe. Nordencrantz was an author
who was very important for Chydenius.
By contrast the powerful figures of the ancient families had from time
immemorial been concentrated round the king in Stockholm, where they
were able to keep themselves informed and gain influence. The nouveau
riche of Stockholm was of course in the same position, even concerning
the Diet.
24
Utility on the Agenda of the University of Turku
The earliest introduction to some aspects of enlightenment thought in
Finland was presented by professor of rhetoric Henrik Hassel, born in
Åland, the archipelago between Sweden and Finland. Instead of admiring
the Classics as was the rule in his profession, which concentrated on the
use of Latin, he paved the way to modernist thinking.
Hassel was the main representative of Humanism in Turku from 1728-
1775. His course differed from those of his colleagues in other Swedish
universities. Yet it did not reflect directly the alternative attitudes of the
Royal Academy in Stockholm, founded to forward utility, natural sciences
and economy.
Finland’s occupation by the Russians during the Great Northern War
caused great destruction and a hiatus in the work of the university, but
this made it possible to recommence the functioning of the Turku Acad-
emy on a completely new basis, without dwelling overly on the past.
Hassel took advantage of the situation, as can be seen by the theses he
tutored.
Hassel regarded knowledge to be based on sensory experience and
reason, and opposed metaphysical speculation. Knowledge should be of
immediate service to human life. Francis Bacon was his paragon of virtue.
According to Hassel, the world was as it was contingently and not by ne-
cessity, since God had created it freely. Absolute knowledge of the world
was not possible. Divine reason was not within man’s reach. The use of
creatures of the world to certain ends, their utility, was ordained by God.
Though Hassel had no overall idea of progress, he regarded the sci-
ences as progressing. Contemporary science was thus not about retriev-
ing the Classics, but the achievement of Bacon and his followers. In the
theses tutored by Hassel the significance of the vernacular as the language
of science was surprisingly stressed in contrast to Latin, his own field.
Hassel thought that such a change of language was one of the background
factors behind the success of England and France. The mother tongue
as the language of science was to be raised everywhere to the same level
reached by the contemporary languages of those successful countries. The
worth of the past was to be found in the fact that rhetoric and culture had
flourished best under conditions of political freedom.
Furthermore, Hassel was convinced that the cause of almost all the
misery in the realm during the existing and past century had been war. In
25
the spirit of Samuel Pufendorf’s natural justice that stressed the signifi-
cance of contracts, he gave a pacific tone to his treatment of relations
between states and individuals. The theses rejected the rhetorical way of
appealing to emotion. Instead one should address reason so that peo-
ple could form their opinions themselves and not be driven hither and
thither, slaves to another’s will.
Hassel who appreciated empirical sciences was to have some col-
leagues who appreciated especially the utility of natural sciences. Johan
Browallius had studied Bacon’s empiristic utilitarian philosophy, and
was a good friend of Carl Linné. Browallius published two booklets,
one asserting the benefits of natural history in schools and the other its
significance in universities. The works argued that speculation should
be replaced by extensive observations and gathering them from all over
the realm, including by using the educatory system. According to Brow-
allius, the clergy was in an excellent position to teach natural science
to the peasants, and set an example in their own agricultural activities.
C. F. Mennander, another disciple of Linné, was more humanistic than
his predecessor Browallius, applying even Pudendorf’s natural law in his
teachings.
The professorship of poetry in Turku was transformed into a professor-
ship of economics, one of the first in the world. The position was given
after much dispute to Linné’s favourite disciple Pehr Kalm, who studied
in Turku and in Uppsala, made expeditions to Russia and Ukraine, and,
after receiving the professorship, a renowned journey to North America,
documented in a book translated into several languages.
Economics was part of a project to have professorships in sciences of
utility at the universities of Sweden. At Uppsala it was accomplished
from without the university, in Turku there were sustainers already within
the university. Whereas at Uppsala, the main university of the realm,
economics concentrated on the affairs of the state and statistics needed
by the governance, and on the doctrine of trade under mercantile ruling,
Turku was the only place in Sweden to represent Linné’s peculiar no-
tion of economics: one was to learn it through agriculture and its reform,
utilitarian plants and natural products and descriptions of regions and
counties.
No Swedish university was so tied to utilitarian thinking as Turku. At
no other Swedish university was there to be developed such a union of
striving for utility and the humanism that directed it. At Turku the values
of humanity, freedom and happiness were combined with a trust in the
26
rationality of science, economy and even technology. Instead of enhanc-
ing manufacture and technological skills it was however seen proper for
Finland to advance agriculture.
28
leanings towards France. The Hats were strengthening their positions.
Together with another Finn, Johan Mathesius, who acted as the Finnish
interpreter for the Chancellery, Arckenholtz opposed the Hats, obsessed
with military power and demanding an attack on Russia. Arckenholtz was
active in negotiations with the Finnish Diet members in the coffee houses
and inns of Stockholm. Later, he apparently even sought to influence the
election of Diet members from Finland and the counties on the other side
of the Gulf of Bothnia.
Such outside influence was considered an interference with the free-
dom of the Estates. When the Hats gained power in government Arck-
enholtz would pay for his opinions first by losing his office, accused of
endangering the relations with France, and when the war against Russia
really broke out, by being imprisoned for its duration, along with Math-
esius. Nothing would dishearten their stubborn opposition to the Hats,
and finally he had to leave Sweden. Much later, both of these staunch
Caps with rich memories of the political past would encounter the young
Chydenius at crucial stages of his career.
32
A systematic and deep corruption had been a notorious habit of the
country, with support bought by corrupting the Diet members. France,
England and Russia had traditionally used large sums with varying degrees
of success to direct the Swedish Diet, which had no system of wages or
reimbursements. Vaasa, Kokkola and Oulu made use of this traditional
means. Unsurprisingly, Stockholm could muster more wealth. The peas-
ant estate began to waver in its stand.
The issue was adjourned. It was passed to the Council of the Realm
to be cleared up, which passed it to the Councils of Chancellery and
Commerce, which in turn requested a statement from the Governors of
Ostrobothnia and Norrland.
At this stage the long-standing Cap an acting Governor Johan Math-
esius decided to covene a special assembly in Kokkola. Chydenius says
in his memoirs that the purpose of the meeting was to unite “the cities
of Ostrobothnia to the countryside surrounding them”. This was done so
that during the next Diet it would be possible to work together “for the
already demanded freedom of sailing and to be prepared for the opposi-
tion that might come from the merchants of Stockholm and Turku”.
The provincial meeting was held in February 1763. Chydenius was
asked to produce a text on the subject for the purpose mentioned above.
This was the real beginning of his political career. But it was also an inter-
esting sign of the times that such a meeting was held at all. From the time
of the meeting on Chydenius was an undeniable Cap politician.
Chydenius recalls the outcome of his participation thus: “The text was
courageous, and I wished to remain unknown, but there was no-one brave
enough to present it; therefore I had to step forward myself and read it
to the whole congregation, while the public applauded most enthusiasti-
cally…” The only version of the speech that survived is the one published
by the city of Kokkola two years later, when preparations for the Diet
began. Chydenius studied the material produced during the previous Diet
and discussed with people versed in the subject.
Chydenius recalled later that due to envy caused by the speech he was
in danger of being imprisoned, had not some of his protectors intervened
without his knowledge. The truth may never be known, but the menac-
ing situation recalled by Chydenius cannot be considered impossible. The
Diet had decided to impose severe restrictions in the towns on meetings
of this kind.
Johan Mathesius had well over twenty years since paid bitterly for his
33
political activity with Johan Arckenholtz of recruiting people against the
Hats. After that the condemnatory attitudes towards such activity had
only become sterner. The principle that Diet members would be answer-
able to their electors had been condemned as contrary to the Swedish
Constitution. In its strictest form the feared imperative mandate meant
that the electors could withdraw their Diet member, if he acted against
their will.
Chydenius seems to have had in mind the scrutiny of the Diet mem-
bers by the nation, a conception that at least came close to that of the
forbidden imperative mandate, as can be seen from the sketch on freedom
of the press by Chydenius found in his papers: “The freedom of a na-
tion does not consist in the sovereign estates acting as they will, but in
that the light of the nation binds their hands so that they cannot act in
a biased manner.” In a later version, presented to the Committee of the
Freedom of Press, the passage has been moderated to the statement: “The
freedom of a nation cannot be upheld by laws alone, but also by the light
of the nation and knowledge of their use.”
Chydenius had apparently been told that to demand that the nation
needs to control the estates gathered in the Diet would lead to contesta-
tions. A safer way to express the idea would be to use the metaphor of
light. The constitution did not recognize the ancient assemblies of the
county, called to represent local interests. In Kokkola there were gathered
representatives of different cities of Ostrobothnia, of the clergy, peasants,
commanding officers of the local regiment, and even some representatives
from the eastern part of the country, in all many former and future Diet
members. Such a meeting was a significant “local parliament”, which de-
fied the decision of the sovereign Diet.
The imperative mandate would have been a means to control the
representatives and counteract the bribes. Soon Chydenius would find out
that there was also another, less harsh method: free public opinion.
There is no mention of Chydenius’ speech in the records of the as-
sembly Johan Mathesius made for the Councils, and thus it has been
possible to conclude that Mathesius intentionally kept secret the demand
of freedom of commerce for the Gulf of Bothnia presented by the as-
sembly. Nevertheless the result of the meeting was the goal to have three
new staple cities and to ease the conditions of four others in other ways,
while also ensuring the right of sailing by peasants. Not surprisingly it was
precisely the experienced opposition man Mathesius who organised such
a meeting fully conscious of the dangers that went with it, and gave it the
34
most innocent form possible, protecting Chydenius, whose speech was
not officially recorded.
35
that he can reasonably wish for and in some well organized society attain;
then no reason remains for him to emigrate...”
The Lord had, according to Chydenius, made nature perfect and man
sociable, and also men’s abilities thus that the more they enjoyed free-
dom, the more they procured strength and comfort for the society and for
each individual. Nor did freedom disturb occupations. It invested them
with more vigour and movement.
Chydenius emphasized that society must protect all productive mem-
bers as the apple of its eye. His views clashed completely with those of
the professor of economics at Uppsala University, Anders Berch. Berch
considered the existence of poverty necessary for the ruling of society,
because without it people would grow lazy and stop working. Chydenius
instead believed industriousness to be a natural property of men, and
civic freedom would enhance and not diminish it. All that was needed to
unleash it were equal rights and privileges.
Carl von Linné’s peculiar tenet about natural economy was combined
in Chydenius’ thinking with ideas about natural justice coming from
Pudendorf, and seemingly also from a conception stemming from John
Locke. Chydenius did not dream of a return to a natural state preceding
the organized society, but instead of a society where everybody would
“be well”. Such a state, Chydenius believed, was connected precisely to
freedom.
The prevailing contemporary economic tenet called Mercantilism
relied on rules, subsidies and input from above, strict regulation and the
control of occupations and industries by the state. Linné’s economical
thinking instead gave a central role to an “economy of nature” stemming
from God. This line of thinking had become established at the University
of Turku. According to it the order and balance created by God prevailed
in nature. All things had their place and meaning in the Great Chain of
Being, the highest of all being man, whose utility the rest of the creation
served.
From this perspective economics was based on the knowledge of
nature and the utility it offered. The proper order of nature was to be fol-
lowed, not disturbed. This conception of nature led to questioning politi-
cal the regulation of economics and thus paved the way for liberalism. In
his treatise on menial servants and later in his other writings Chydenius
opposed forced measures. Like Pufendorf he departed from the natural
equality between people and like Locke he thought that all people own
36
themselves and their labour-power, which they ought to be able to sell to
the highest bidder. He defended the freedom of contracts for menial serv-
ants instead of the law on menial service.
When the Caps won the elections Chydenius became a representa-
tive of the Diet in 1765-1766, defending the freedom of trade of the cities
of the Gulf of Bothnia against the privileges enjoyed by Stockholm. To
advance his cause he studied the history of existing statutes and wrote
pamphlets appealing to the Diet members and greater public. From practi-
cal interests he progressed to making a general theoretical presentation of
his view in his booklet about “the national gain”, as he said, Den nation-
nale Vinsten (1765), where he formulated a comprehensive program of
economic freedom.
Never in his thought did he simply defend his compatriots in Ostro-
bothnia. He sought universal solutions to the problems encountered. On
the other hand, Chydenius was not a lone genius, without preconditions
and popping up from nothing. For a great part, his ideas were anchored in
the teachings of the University of Turku. When he came to Stockholm,
he had an open mind, but in a scholarly sense his reading remained lim-
ited, although he obviously profited from his publisher Lars Salvius who
also ran a bookshop.
In Chydenius’ view knowledge of the natural order created by God
was necessarily incomplete, as it had been to Henrik Hassel and his fol-
lowers in Turku. A lawmaker could not have sufficient grounds for favour-
ing some occupations, regulating labour or offering privileges to certain
groups. Consequently, the best regulation was natural. It was formed by
demand. Occupations attained a balance after being freed: “In this man-
kind is entirely like the sea, where one pillar of water affects another with
an infinite pressure, but an equal respective pressure causes the surface of
the water to remain level and horizontal. No enclosing of each pillar of
water or other complicated measures will be needed.”
This was Chydenius’ defence for a free market economy, not unlike
Adam Smith’s “invisible hand”, presented only later in print.
Already in his essay on the causes of emigration Chydenius empha-
sized that in a free state wide learning and knowledge is needed because
the majority must settle matters. A free people could not entrust its
matters to the few. The more numerous the subjects participating in the
deliberations are, in some way or other, thought Chydenius, the better
shall they represent society, and the less possible is it to silence them with
threats, the less possible it is to bribe them.
37
From this he reasoned: “That it could happen, the nation must itself
be enlightened, but this requires reason; this is best exercised when we
write our thoughts down on paper. But for this there is no great incentive,
unless printing makes it common.”
Where would a Diet member learn reason? Chydenius answered:
“From all pamphlets published for and against concerning the success
and misfortune of our fatherland, for thus is the truth best discovered.
Therefore the legitimacy of the freedom of writing and printing is one of
the strongest defences of our freedom. But if only biased arguments and
corrections ever see the light, the high representatives themselves will
remain in darkness. The highest power must therefore with tender and
caring eyes also regard this facet of our freedom.”
Such a “tender and caring eye” could also mean the Censor represent-
ing the highest power. The contemporary Censor Niklas von Oelreich
saw himself as a promoter of the freedom of the press. The term for the
Swedish era of the sovereign Estates as “the Age of Liberty” comes from
one of his writings.
During the Diet Chydenius concluded that political censorship was
not needed at all. In England, censorship had been abolished in 1695, but
it had not been replaced by a new law formulated with positive concepts,
wherefore control could seek new forms. The radical Swedish Tryck-
frihetsordningen would thus be the first nationwide liberating freedom of
information act. Its founding idea can be considered to have been formu-
lated by Chydenius: the freedom of a nation presupposes an enlightened
publicity, which will tie the hands of the Estates and impede them from
using absolute power. This moved the focus from the sovereign Estates to
the nation in general.
38
knew less about than politics, but the Diet Journals published during the
1756 Diet opened my eyes for the first time to ideas about the Swedish
form of government and our political constitutions, and when Council-
lor of Commerce Nordencrantz at the 1761 Diet presented his detailed
memorial to the Estates of the Realm, and this came to my possession like
his other writings on the rate of exchange, it incited me to go further into
such matters.”
The Riksdagstidningar of 1756 Chydenius first referred to was merely a
bulletin containing information on the decisions of the Diet. As such it
contained no political analysis and still less a critique, but its significance
was in telling what the Diet was and what happened during it.
Already during the last Diet Nordencrantz had been given permis-
sion to publish two previously written books of his, in which he strictly
criticised the Hats and defended the radical freedom of the press. Norder-
cratz did not present England as a model of freedom of the press, however,
because he did not approve of the Whigs who were in power. Instead he
set up as a model China, widely admired in those days, about which he
gathered information through citations in French from the Jesuit Jean-
Babtiste Du Halde’s work in four volumes Description géographique et
historique de l’empire de la Chine et de la Tartarie chinoise (1735), the basic
work on China in the Eighteenth Century.
Even though Nordencrantz spoke a lot about freedom of the press and
opposed secrecy, he did not demand the abolishion of censorship. He
would have allowed even rebellious writings, which he thought ought to
be publicly corrected, not punished. He would have maintained religious
censorship. He would have moved political censorship from the Censor
and Chancellery to the Estates.
In connection with the freedom of printing Chydenius writes of Nor-
dencranz in his memoirs only that: “Nordencrantz’s writings had opened
my eyes so that I now considered it [freedom of the press] the apple of the
eye of a free realm.” This frequent Chydenian metaphor of the freedom of
press as the “apple of the eye” of a free nation and its constitution was in
fact derived from Nordencrantz.
It has not been possible to establish with certainty how Chydenius
arrived at a conception much more radical than the one held by Norden-
crantz: the demand to abolish political censorship in general. But there is
even some contemporary printed evidence enlightening the development
of his thoughts.
39
In his memoirs Chydenius does not mention the small pamphlet
published in the Spring of 1766, translated from Danish by Chydenius,
including a foreword written by him and dedicated to the Crown Prince
Gustav, the future Gustav the III. The Danish economics writer F.C.
Lütken, versed in physiocracy, had published a chapter from Du Hal-
de’s book on the censorship during the Chinese Tang dynasty (618-907
AD). Chydenius translated this passage, following the admiration held
by Nordencrantz towards China, and it forms the main content of the
pamphlet.
Du Halde’s text in the pamphlet begins with a reference to the ancient
custom of hanging on the palace walls canvases, where the subjects could
write their opinions. The author then tells of numerous wise emperors
who had set themselves censors to remind them of their duties, warn
them of mistakes and relate of all things concerning the government of
the realm. Nothing they brought up would cause the emperor to take
offence, thus they could do it openly and without fear. The wise emperors
were receptive to all remarks and corrected their actions. This explained
the success and endurance of China.
In his foreword Chydenius agreed with this. The same practices would
lead to same results everywhere, thus also in Europe. The practice had
originated already under absolute monarchy, but it could be fitted to a
Swedish guise, “under the protection of the sweet name of Freedom”.
Light and truth should lead people, but nobody had them from their
birth. Those responsible for the nation must procure them. Often the
light giving splendour to the throne blinded the rulers from seeing “the
destinies of their distant subjects”. Behind these metaphors one can
detect Chydenius’ critique of those near the ruler. But, he emphasized,
there were such rulers whose heart was filled with compassion, when they
“stepped down to the abodes of the smallest and heard the voice of the
Nation”. They performed with the blessing of people deeds of everlasting
glory.
“Distant subjects”, “the abodes of the smallest” and “the voice of the
Nation” were examples of true Chydenius in the eloquent foreword. In
fact, when the pamphlet came out Chydenius had already been work-
ing for a much more radical solution than could be gathered from that
publication.
In his memoirs Chydenius said of the times of the Diet begun in 1765
that the cause he was promoting “was exactly to the taste of the party
that had long been underfoot and now for the first time sat at the reins,
40
willing to open those recesses of knowledge created by the former party,
and under whose power they had so long been suppressed”.
According to preserved records, one gets the impression that Chyden-
ius was somewhat smoothing the description of the situation. “Opening
the recesses of knowledge”, freedom of information as the right to publi-
cise official records was not even mentioned in the oldest extant version
of the memorial he wrote. He may have heard such demands, but he had
not adopted them initially. The passage on China might indeed reflect his
earliest feelings. It presented the idea about the king and the people, and
contained a gibe against the nobility.
Chydenius continues in his memoirs, here manifestly reliably: “There-
fore I made a memorial of it [the freedom of the press], which I gave to
the late Bishop Serenius for his use, who introduced me to the acquaint-
ance of the late Counsellor of the Court Arckenholtz, newly arrived in
Stockholm, and invited me to consult with him about the memorial.
After various discussions and reflections I rewrote my memorial...”
According to his account Chydenius thus had “various discussions”
over his first, extinct version of the memorial on Freedom of the Press
precisely with Johan Arckenholtz. These lead to a new, but not yet final
version of the memorial. We may ask why the earliest version of the
memorial has not been preserved. One possibility is that it underwent so
many changes that it was not worth preserving.
Jakob Serenius, an old fox and a Cap who had seen from within dif-
ferent stages of Swedish politics, proved a disappointment to Chydenius
in this matter. Serenius did read the memorial and even shortened it,
“but at the end of the draft he retorted that it was not permitted to write
anything concerning the state, which shocked me greatly, since with
these few words already had been allowed all that the friends of constric-
tion and secrecy could demand, and I dissociated myself from anything
like it. He complained it was a most delicate matter and had been
contested, but asked me then to write in my own name as it pleased me,
which I did...”
Serenius did not dare to be the one to make public the ideas expressed
in the edited version of Chydenius’ memorial, but lector Anders Kraft-
man from Porvoo consented to do it, and the memorial was presented in
his name, though according to Chydenius he was unaware of who had
written it. If this statement is true, then some kind of group was in action
behind the scenes. The less known Chydenius hid or was hidden behind
41
a more experienced member of Diet. Serenius had been quite correct in
saying that it was forbidden to write about the nature of the state; the
constitution just had to be followed.
In addition to the middle version the final version of the memorial has
been preserved. It was slightly shortened compared to the interim version.
This can be explained through Chydenius’ reference to passages removed
by Serenius. From the final version has been removed for example – in
the words of Pertti Virrankoski – “all poisonous references to absolute
power of the Estates and their high-handed behaviour and the rights of
the citizens trampled by the magnates”. It certainly had not been wise to
speak in such a way about the powerful.
One can ask whether Johan Arckenholtz could be the one that caused
Chydenius’ thought to radicalize still further. Arckenholtz stayed in
Stockholm during the spring of 1765 from mid-February to the end of
May. The discussions between him and Chydenius must have taken place
during that period. Arckenholtz was exceedingly interested in matters of
state. In his memoirs Chydenius does not associate Arckenholtz with a
similar confrontation as Serenius, but neither does he specify his poten-
tial impact.
We may assume that Arckenholtz presented suggestions regarding
the state in principle based on his knowledge of Europe and especially of
England, and likewise considerations based on his personal experiences
of suppression during the power of the Hats. As we saw, Arckenholtz, an
admirer of the political conditions in England, had already in his manu-
script on the interests of Sweden among the states of Europe concluded
that secrecy was a left-over from the times of absolute monarchy. There
is nothing to suggest that Arckenholtz who abided firmly by his stances
changed his mind about this.
In the preparations for the Freedom of the Press Act England was re-
peatedly posited as a model. It was undoubtedly an idealized paradigm, yet
not without reason, if one compared the conditions in different countries.
Similar references occurred in numerous places in Europe.
A clear image of the exemplary character of Britain, certainly corre-
sponding to Arckenholtz’ thinking, is presented in the interim report of
the Committee on the Freedom of the Press: “All states have experienced
the fundamental benefit of such freedom, and England, that has shed
blood to guarantee it, counts it among the most precious bulwarks of its
constitution.” Arckenholtz was exactly the kind of person, who was quali-
42
fied and had a motive to convince Chydenius that instead of China he
should look to England.
He could also give advice where significant documents could be found.
He had in his time been responsible for the documents of the Chancel-
lery, and had spent the major part of his later life seeking, gathering,
organizing and publishing historical documents. Since no documents
about foreign policy of Sweden could be published in Sweden, Arcken-
holtz had, under the name of one of his likeminded friends, published
them in the promised land of forbidden books during Enlightenment, the
Netherlands.
Arckenholtz was bitter at having had to be the first to suffer an attack
from those opposing the moderate foreign policy of Arvid Horn, had lost
his office and later finally became a political exile to Kassel, even if as
a librarian to the Duke, who at that time was the King of Sweden. He
was seeking recompense, in practice a retirement allowance, of which
the downfall of the power of the Hats gave him hope. He was oppressed
by his “misfortunes”, as it was said, to the extent that it is impossible to
imagine that he would not have unburdened his mind about them to the
young Chydenius even under the new situation. Talk of the behaviour of
the Estates and oppression of civil rights sounds very much like the agony
of Arckenholtz.
But it is hardly justifiable to claim that Arckenholtz is the source for
the most important emphasis of the memorial by Chydenius, the vision of
the free competition between differently minded writers as a method for
reaching the truth. Chydenius believed such a method had been in exist-
ence in China, and he thought it efficient under all conditions, forgetting
China’s absolute monarchy. Emphasis on this critical method of finding
the truth was what most clearly separated Chydenius from the previous
conception of political publicity as information meant to firmly establish
the power of the Estates, propaganda for the Diet. The solution advocated
by Nordencrantz would only have strengthened the power of the estates.
This fundamental idea in Chydenius’ memorial has been ignored in
various later commentaries. It has been discussed who would be held
responsible in the case of an offence of the Freedom of the Press Act, the
publisher or the author. During the discussion Chydenius shifted his stand
from the responsibility of the former to the latter, but from the beginning
he regarded both options. Chydenius thought that in England the respon-
sibility was the printer’s, and therefore supported such a solution at the
outset.
43
However, the crucial issue, the main goal of the freedom of the press
was according to Chydenius something else. He formulated it by saying
that freedom in these matters gave birth to “the competition of the pens”.
This had to be encouraged. Its impact was most precious:
“No fortress can be praised more than the one that has endured the
hardest sieges. If the goal is unclear, then truth must be sought through
the exchange of writings. [...] False writings shame their authors but profit
the nation in that truth is argued for and embedded more deeply.”
Chydenius defended the seeking of truth through statements of differ-
ent standpoints, through “the exchange of writings”. The statements that
had endured the hardest critique would be the strongest. This reminds
us of the spokesman for an Open Society in the Twentieth Century, Karl
Popper, and his doctrine of the strengthening of scientific hypotheses
caused by the attempts to prove them false, “corroboration” as he said.
Chydenius’ argument was a remarkable insight. Though today we may
understand that politics cannot be reduced to knowledge, but presupposes
various values and goals, the value of critically evaluated knowledge for
politics will in no way loose its weight.
44
to spread knowledge about the fruits of their power and thus strengthen
their position. This practice did also not originate in the Freedom of the
Press Act, but it was in contrary a part of the development leading to it.
Despite the seemingly liberal stand of his memorial Schönberg spoke for
censorship.
Cederström for his part suggested a whole new idea, a kind of volun-
tary advisory censorship. Like Schönberg he too presented a long list of
documents that should be allowed to be published.
Chydenius was the only one to demand the complete abolition of
political censorship in general. It was Chydenius’ programme that would
be realized in the famous Freedom of the Press Act of 1766.
It must be said that the programme was not presented in full in the
memorial to the Estates by Chydenius. It was significantly completed in
the later work of the Committee, which made it so uniquely all-encom-
passing. It is evident that other people and not just one person had an
impact on the final formulation of the law and in general on its birth, as is
customary to a Diet.
The preceding discussion from the previous Diet to the present one
had dealt only with the right to publish more freely, and not with the
complete abolition of political censorship. A substantial and exceptional
new idea was called for. Chydenius had precisely one that would serve:
the competition of pens. It was a method that would bring out the truth
by itself. Nobody could stand above it to regulate its course.
A unique feature of the Swedish Act, in addition to the freedom of
writing and printing, was the freedom of access to public documents, the
citizens’ right to have information about documents the public officials
had in their keeping. Highly significant too was the positioning of this
right as primary and leaving of the necessary restrictions to a secondary
position. Such an order of importance is proper to all subsequent laws on
freedom of information. It is still a valid principle.
Originally this idea did not come from Chydenius. When the Caps
gained central positions several people suggested publishing the docu-
ments concerning the Diet. It was considered necessary for gaining
general confidence and deflecting suspicions. The general motives did not
much differ from those that the Hats had had previously. Such motives of
course would differ according to who felt or thought their policies have
been successful or could at least trust in their success. It had become the
45
habit that during the Diet information about it was published and censor-
ship was more moderate than at other times.
It was debated whether the records making public all discussions ought
to be published, or just the specific memorials produced over different is-
sues. One argument against the publishing of the records was for instance
that the Diet members had greater freedom of expressing their opinions, if
it were known that the records would not be made public.
In his speech concerning the issue in the Great Committee Chyden-
ius had on 3 April 1765 declared unequivocally that both records and
memorials ought to be freely published. He defended this view on several
instances. It was in accordance with his view about the necessity to regu-
late the Diet, which he did not see as a body of absolute power. However,
the result was then, contrary to Chydenius’ view, that only the memorials
would be published, not the records. This early speech proves that quite
soon after the Diet had commenced Chydenius sustained an extensive
publicity of official documents, at least as concerned the Diet, but at that
date he apparently did not yet connect the issue with the freedom of
printing in general.
46
other examination beyond their being reported to the censor, who is
then obliged to subscribe his name to them, in so far as no censorship can
alter a legally issued document. It should be possible to remove only what
relates to serious, less familiar crimes or anything else that is not entirely
consistent with decency”. It would not be necessary to print everything
that had been brought up during a process. From an exchange of submis-
sions however, the submissions of both parties to the court of law should
be printed.
Contrary to the royal letter from 1735 that had been the foundation
for the former practice, the memorial proposed that it would be useful “if
all votes are disclosed together with the names of the voters, both when
votes are reported to the Crown by the court of appeal and the major
government departments in accordance with chapter 30, § 3 of the Code
of Judicial Procedure and when one party, or whoever it may be, in any
court of law, government departments or any public body, requests the
release of the voting record or of reports by public officials concerning
rights of individuals, which the Committee believes may then safely be
printed;” A restriction as in previous times would regard only the high-
est power: “... it does, however, make an exception for the votes in the
Council of the Realm, which are scrutinised only by the Estates of the
Realm...”
The memorial thought that publicity would promote the attention of
the public officials and judges making their decisions, likewise the edu-
cation of public officials: “…that hereby the inestimable benefit will be
obtained that none but mature and competent men would apply for such
offices in which the rights of a citizen are put to the test, when it will not
be so easy to fell under the influence of an ill-considered voice as it might
be when it is concealed under an injurious silence...”
Anders Schönberg’s memorial went even further: “The Committee
further considers it to be necessary to allow the printing of all the official
correspondence, judgments and verdicts, resolutions, edicts, instructions,
statutes, regulations and privileges, of whatever kind or nature they may
be, from the Crown, appeal courts, government departments and public
officials; likewise all the memorials, applications, projects, proposals and
the like submitted by private persons or individual societies and public
bodies to the Crown or the Estates of the Realm, to the appeal court, gov-
ernment departments and state officials, as well as all reports, projects, of-
ficial proposals, appeals against and responses to these, as also all accounts
of parliamentary proceedings submitted by the officials to the Crown or
the Estates of the Realm and all the verifiable activities of and duties
47
performed by officials, lawful as well as unlawful, with what occurred in
connection with them, beneficial or deleterious. In short, whatever is not
contrary to the basic rules outlined above for the censorship should be
allowed to be printed subject to the appropriate censorship.”
The breathtaking list continues about printing the documents of the
Diet: ”...the Committee has not, however, felt able to recommend a ban
on the printing of the resolutions issued by the respective Estates and of
the protocols and reports of the committees; nor does the Committee
find that there is any obstacle to the printing of parliamentary memorials,
once the secretary of the Estate has certified by his signature that they
have been read to the Estate and that the author of the memorial has ei-
ther received the permission of his Estate to present the memorial to the
other Estates, or that the memorial has been approved outright or referred
to some committee.”
However, an important restriction ensued: “The Committee likewise
recommends that all documents and papers that are produced during
sessions of Diet and that provide useful information may be printed, as
they should not be kept secret and concealed, although the signature
of the Censor is required in all such cases...” Even though a document
concerning the Diet would not be defined a secret one, it had to provide
“useful information” and have the approval of the Censor. In other words,
it remained the task of the Censor to decide on the basis of directions
received what was useful. In practice this left the censor unlimited pos-
sibilities of political power. The memorial did not take the stand that
publishing opposing standpoints could be useful.
Schönberg’s memorial saw no contradiction between publicity of
official documents and preserving the Office of the Censor. The silent
precondition seems to have been that the persons who prepared the
memorial who had long been accustomed to the power of the Hats could
not imagine a situation where radically different and contradictory stand-
points would struggle for the favour of public opinion. They could not
comprehend it as a method of seeking the truth.
If openness, on the contrary, were to be realized as a method of “seek-
ing the truth”, what would there be left to do for censorship? Chydenius’
answer was unequivocal: nothing. The specific Office of the Censor and
censorship by political officials in general should be abolished, as Chyden-
ius claimed had been done in England.
Neither freedom of the press nor the principle of publicity were as
such invented by Chydenius, but it was his action during the Diet that
48
was central to having these reforms realized and to giving them their
final form. It was all about much more than presenting good arguments
and the approval they received. A factor in the approval was that the
Chancellery had long had problems keeping up censorship. The outcome
of course presupposed a change in the political relations of power, the
Caps winning the elections, new modes of thinking and new coalitions of
people within the Caps. There were also some incidental happenings that
proved lucky for Chydenius and affected the result.
The heritage concerning the publicity of official documents could be
termed as a tight knot, which Chydenius opened with one stroke directed
at censorship. His conclusion was namely that the publicity of official
documents that depended on political censorship would be no publicity at
all. Freedom and constraint could not be united.
51
now it was given a new approach. The principle could become efficient
only when combined with the abolition of political censorship. Anders
Chydenius’ work combines the two. It would seem that no single ingredi-
ent of the Act was especially invented by Chydenius, but his mode and
zeal in combining the different ingredients produced something unprec-
edented. The same can be said of his work for these principles during the
Diet, which resulted in the first Freedom of Information Act in history.
In the last instance the Act was given the firm protection of the con-
stitution. In his foreword to the China pamphlet Chydenius had spoken
about freedom of expression as the “apple of the eye of a constitution”,
but it is not known who made the last minute additions. This ascension
in worth proved in fact fatal after some years, when King Gustav III as
a consequence of his 1772 coup abolished the old Constitution. Despite
the later, less strict versions of the Act, the Act of 1766 was to become an
ineradicable part of development of consciousness of justice and practices
of publicity. Its place of honour in the constitutions both of Sweden and
later of independent Finland the Act regained through time.
53
54
II
FREEDOM
OF INFORMATION
TODAY
55
Transparency at the core
of democracy
By Leena Luhtanen
56
Minister of Justice of Finland,
Leena Luhtanen, presided over the
EU Council in Justice Affairs
during the Finnish EU Presidency
in the latter half of 2006.
emphasis on the transparency of the EU. Public discussion has largely fo-
cussed on whether or not all legislative decision-making should be carried
out in public. However, the access to documents and an efficient informa-
tion policy are just as important for making legislation and the legislative
process more transparent and understandable to the European Union’s
citizens.
To this end, the Finnish presidency started implementing the new
overall policy on transparency, which had been adopted by the European
Council in June 2006. Consequently, the openness of legislative deci-
sion-making has been significantly increased. Altogether about half of
all debates between ministers in the EU Council are now held in public.
Web streaming technology enables all citizens and the media to follow
such proceedings through the internet from wherever they are. Further-
more, all documents discussed by ministers in public proceedings are also
made available on-line.
The transparency of government is a core issue of the democracy
principle and a precondition for bringing any government closer to its
citizens. If a government does not trust its citizens, how can one expect
the citizens to trust their government? The same applies to the European
Union and is therefore one of the main priorities of Finland’s EU policy
during and beyond the 2006 presidency.
57
Openness and Access
to Information in Finland
By Olli Mäenpää
1. Right of Access
58
The author, Olli
Mäenpää, is a profes-
sor of administrative
law at the University
of Helsinki, and is
one of the leading
experts in Finland
on access to informa-
tion.
60
purpose for which that right is exercised. Since access to documents and
other records is a basic right it also takes precedence over ordinary legisla-
tion. For instance, if the application of a statute were in evident conflict
with the access right, the access provision in the Constitution would be
given primacy in judicial proceedings concerning that application.
Together with the guarantees of freedom of expression and freedom
of information in Sec. 12(1) Constitution Act, the access right forms a
vital component of an open government. An additional stimulus to a
functioning access legislation is found in Section 14(3) of the Constitu-
tion Act defining a positive obligation on the administrative authorities
to promote openness: ”It shall be the task of public authorities to pro-
mote the opportunities of the individual to participate in the activities of
society and to influence decision-making affecting him.”
The right of free access to administrative documents forms one of the
most significant guarantees of the transparency and openness of public ad-
ministration. Detailed rules governing access to administrative documents
are laid down in the Act on the Openness of Government Activities of
1999 (Openness Act). According to the general principle stipulated in
Section 1 of the Openness Act, all official documents shall be public, un-
less specifically otherwise provided in this Act or another Act.
The Openness Act also sets out the objectives of its application.
Section 3 lists as the goals promotion of openness and good practice on
information management, the provision to private individuals and corpo-
rations of an opportunity to monitor and influence the exercise of public
authority, to observe the use of public resources, to freely form an opin-
ion, and to protect their rights and interest. The list is intended to serve
as more than a mere declaration of good intentions. It must be taken
seriously because, pursuant to Section 17, the authorities are duty bound
to take the list into consideration when making any decision under the
Openness Act. The objectives of the Act, consequently, are meant to
inform all instances of its application.
61
this effect in the Act. The authorities must actively produce and dissemi-
nate information on their activities. For this purpose they must produce
guides, statistics and other publications, as well as information materials
on their services and practices and on the social conditions and develop-
ments in their field of competence (Sec. 20). The authorities must also
ensure the availability of this information by making it available in librar-
ies and on the Internet.
Good practice on information management is a new concept denoting
the obligation to see to the appropriate availability, usability, protection,
integrity and other matters of quality pertaining to documents and infor-
mation management systems (Sec. 18). An element of the good practice
is the obligation to arrange the documents, information management and
data systems in a manner that facilitates the operation of the openness
principle.
2. Scope of Application
2.1. Information
The Openness Act contains provisions on the general right of access to
official information and how this right is exercised in practice. In ad-
dition, it defines active duties of the authorities to promote access to
information and good practice on information management. A consider-
able part of the Act is devoted to defining the grounds of official secrecy,
the official’s duty of non-disclosure, and other restrictions of access that
are considered necessary for the protection of public or private interests.
An important safeguard of access is the comprehensive reviewability of
decisions taken pursuant to the Act.
The Openness Act takes the mid-road with regard to its applicabil-
ity to information. Basically, it guarantees access to government-held
information to the extent it is documented or stored while the restric-
tions of access extend to cover even undocumented information. The Act
thus defines primarily access to official documents and the information
contained therein. Government-held information as such, irrespective
of whether it is stored or documented, comes under the scope of the law
mainly pursuant to provisions concerning non-disclosure and promotion
of openness.
62
2.2. Documents
The right of access is applicable to a variety of documents regardless of
their external configuration and manner of storage. Since the use of the
term document is not restricted to written texts or pictures only, the Act is
applicable even to information stored in a specific form such as electronic
documents, data disks and files, tapes as well as visual presentations, maps
and x-ray pictures. A recording is considered a document even if it can
be comprehended only by means of technical aids. The same applies
to any message that can be deciphered only by means of a computer, an
audio or video recorder or some other technical device.
3. Preparatory documents
In day-to-day administrative practice official documents under prepara-
tion, in the process of being drafted or otherwise incomplete constitute
an important category. Because of their formal incompleteness, internal
character, or preliminary nature they will not be generally accessible until
the issue in question has been decided. As a consequence of such a defer-
ral, preparatory documents will be subject to the right of access at the
latest after the decision is made (Sec. 6).
This rule applies also to internal documents such as outlines, aides-mé-
moire and other memoranda drawn up by a public official. A small group
of preparatory documents may still remain inaccessible under the Open-
ness Act. This group includes notes kept by an individual official, drafts,
64
which have not yet been released for presentation of other consideration,
and internal communications unless they contain information that must
be archived. The group is expected to remain limited.
The reason for the special status of preparatory documents has tradi-
tionally been a presumed need to ensure the undisturbed functioning of
the administration and the requirements of confidentiality. That kind
of deference for purely administrative considerations has lost most of its
justification over time, since it is just the preparatory documents that are
significant for the general monitoring of administrative activity and for
influencing official action. After all, the outcome of an administrative
procedure will quite often be determined already at the drafting stage.
In any case, there is an obvious tension between these two conflict-
ing arguments – the need to protect the confidentiality of drafting deci-
sions and the need to ensure sufficient openness at the preparatory stage
of decision-making. The new Act has resolved this tension by a general
stipulation to the effect that an authority has been reserved discretion to
disclose a preparatory document before the decision has been made (Sec.
9), while the most important preparatory documents are generally acces-
sible when they have been completed.
Since it is at the discretion of the authority to disclose a preparatory
document before the decision is taken, there is no general right to obtain
information on it. In administrative practice draft documents are usually
disclosed relatively easily, but attitudes vary concerning the dissemination
of information at the preparatory stage. For these reasons and in order
to guarantee the operation of the openness principle the Openness Act
introduces three important constraints to the discretion.
The first constraint concerns studies, statistics, and other comparable
accounts if they contain information on the alternatives, reasons and im-
pacts pertaining to a project of general importance. They will be public
as soon as they have accomplished their purpose of providing that infor-
mation. No discretion is thus left to the authority once such a study or
account has been completed. The second constraint applies to the scope
of the discretion itself. Access to information in preparatory documents
may not be restricted unduly or any more than is necessary to protect the
interests in question; also the persons requesting information must be
treated equally. Third, the access legislation also includes an important
amendment of the Penal Code whereby the disclosure of information
in preparatory documents is decriminalized. This amendment has as
its specific purpose to encourage the authorities to participate in public
65
debate in their areas and also to facilitate the exchange of opinions at the
preparatory stage.
The authorities also have a general duty to keep available documents
on legislative reform projects and of pending projects of general impor-
tance. On request, the authority must also provide access to information
on the stage of consideration, alternatives and impact assessments on
legislative and administrative projects of general importance (Sec. 19).
68
grounds of official secrecy and defining the duty not to disclose confiden-
tial information.
To protect such legitimate interests as personal integrity, commercial
confidentiality and national security, access has been restricted with
regard to information about e.g. issues falling under the core areas of
foreign policy, privacy, business secrets and professional confidence. One
reason for restrictions is that the personal data obtained in the course of
government work need to be protected because of its sensitivity. The
operations of authorities can also not be wholly public in matters dealing
with national security or crime prevention. These reasons account for
the majority of express secrecy or confidentiality provisions. Furthermore,
rapid advances in automatic data processing set new demands on protec-
tion of privacy, currently being met by developing data protection.
The list of the criteria of secrecy in Section 24 of the Openness Act is
based on the following interests which may be protected by keeping the
official documents secret:
- personal integrity and other important personal interests in
health care, social services, taxation or public supervision
- protection of private business interests
- the economic interests of the State and the municipalities
- protection of nature
- prevention and prosecution of crime
- safeguarding judicial proceedings and data protection
- the security of the state and its relations with foreign powers,
- defense interests.
72
the exceptions narrowly. There are two main reasons for this rule of
interpretation. First, the limits on party’s access constitute an exception
to the right to be heard laid down as a basic constitutional right. Since
the authorities must choose the interpretation, which in a given case is
most conducive to the attainment of the goals of a basic rights provision,
limited application of the exception is necessary. Second, the exceptions,
if applied broadly, would weaken the fairness and erode the legitimacy of
the administrative proceedings.
The two considerations mean that the protection of the privacy or
confidentiality of one party cannot automatically be used to the detri-
ment of the legitimate interests and the rights of access of other parties.
The authority may rather be said to be under a duty to balance in each
individual case the interests protected by confidentiality and the interests
to fair hearing in administrative procedure.
8. Future Challenges
The Openness Act is undoubtedly an improvement because of the up-
to-date and express regulation of access and its limits. Yet, the text of
the Act itself is perhaps not as user-friendly as it should be. Some of the
provisions are so complicated that both the authorities and information-
seekers may encounter at least some difficulties in their interpretation and
application. The grounds of secrecy are now clearly and comprehensively
defined, but clarity has also resulted in an almost impenetrable jungle
of detailed secrecy provisions. To some extent it may be that these and
similar deficiencies are unavoidable in a modern information society;
any attempt at a clear-cut and simple regulation of access to government
information may already simply prove to be unfeasible.
Access regimes should almost by definition be accessible, i.e. under-
standable and easily applicable. It is accessibility in this sense that, some-
what paradoxically, is perhaps the biggest challenge facing the application
of the new Act. It will most likely take a while before a settled case law
will emerge and give needed guidance in the most complicated issues.
Other challenges include the rapid development of information technol-
ogy and the role of government information as a resource for commercial
exploitation. It may very well be that the new Act requires amendments
faster than has been foreseen at the drafting stage. In the meanwhile, the
long tradition of open government will also play a vital role in the imple-
mentation of the Openness Act.
73
Access to documents
– freedom of information
“could fuel public discussion”
By Tony Bunyan
In 1999 when Statewatch applied for copies of the new Council proposal
on access to documents we were refused access as it: “could fuel public
discussion” and could offend “the Council’s partners” (on that occasion
the USA and NATO). This logic still persists seven years on in the main
EU institutions.
The 1993 code of access was replaced by a Regulation covering the
Council of the European Union, the European Commission and the
European Parliament in 2001 (1049/2001) and was meant to ”enshrine”
the Amsterdam Treaty’s commitment for the citizens’ right of access to
documents. The shortcomings of the Regulation were largely predictable;
indeed they closely mirror the objections by civil society in 2000 when
the measure was going through the European Parliament.
Now six years on the European Commission says it is going to ”con-
sult” over possible changes in the near future. So it is a good time to take
stock.
The history of access to EU documents up to the adoption of the Regulation can be found
in an online book on: http://www.statewatch.org/secret/freeinfo/index.html
74
The author, Tony Bunyan (UK), is a journalist specialising in the openness
in the EU and an editor of Statewatch (UK), one of the leading groups in the
EU monitoring the policies and actions in the field of justice and home affairs.
Photo: European flag in front of the Berlaymont building (© European Com-
munity, 2006).
The Commission has chosen to only try and partially implement Article 12 largely related
to legislative documents adopted.
Statewatch has sent a complaint to the European Ombudsman on this issue.
76
circulated on the first day to delegations and the media. The final draft
was available at 10.00am on the second and final day and adopted a few
hours later.
The same goes for the ”Hague Programme” adopted on 5 November
2004 or rather nodded through without debate by the Council. Drafts
were only leaked by Statewatch a week before adoption, yet again leaving
no time for public debate.
These two ”Programmes” set the detailed agenda for the Justice and
Home Affairs Council and for Commission - and subsequently for the Eu-
ropean Parliament. Yet there was no public or parliamentary debate based
on the drafts as to what should or should not be included.
77
The “public interest”
When the 2001 Regulation was being discussed a lot was made of the
possibility of the ”public interest” in disclosure out-weighing the interests
of the institutions in maintaining secrecy - in practice not a single appeal
of the grounds of ”public interest” has ever won the day with the Council
(or the Commission).
Overall problems
For both the Council and the Commission a major problem is which
documents they give access to and which they does not. For example, the
largest category of refusal of access to documents by both institutions is
where disclosure would ”seriously undermine the institution’s decision-
making process unless there is an overriding public interest in disclosure”.
This is the so-called ”space to think” for officials and not in a single
instance has a ”public interest” argument by an applicant been upheld.
In effect this means, for example, that although final Council and
Commission positions are made public few, if any, of the internal discus-
sions leading to the position are available before the measure is adopted.
In a democratic EU all documents related to proposed new measures
should be made public at the same time as the proposal. Citizens can then
see what options and influences were rejected or adopted.
Since the Amsterdam Treaty came into force in 1999 the number of
documents in the field of justice and home affairs (JHA) has mushroomed
and there are now over forty working groups that have to be tracked. Doz-
ens of documents are produced every day by the Council and Commission
making the job of monitoring what is being discussed almost impossible
even for the most dedicated of researchers.
In addition there has been an explosion in the number of “off-shore”
bodies, agencies and centres which are subject to little meaningful ac-
countability or scrutiny.
It is one of the great failings in the EU that there is no mechanism in place for
post-legislative scrutiny.
78
from ”access to documents” which require each issue to be tracked down
in the plethora of committees and working groups. FOI in the EU would
mean that a person could simply request all the documents concerning a
specific measure or initiative and it would be the job of the institution to
provide them. This should be subject to a new very limited set of excep-
tions - excluding the ”space to think” and the right of third countries to
veto disclosure.
It should also have a meaningful ”public interest” test. To argue, as the
Council and Commission do, that for momentous decisions such as the
finger-printing of everyone in the EU (biometric passports and ID cards)
and the surveillance of all telecommunications, the ”public interest” of
disclosure never overrides their ”space to think” has no place in a demo-
cratic Europe.
The much talked of ”democratic deficit” is not just about the powers
of parliaments - national or European - it is much deeper than that. It is
about changing the democratic culture into a culture of openness, in-
formed public debate and responsible and accountable institutions.
The argument is really very simple and should be quite easy to un-
derstand: citizens have a right to know how and why decisions are made
and implemented. Open, transparent and accountable decision-making is
the essence of any democratic system. Secrecy is its enemy and produces
distrust, cynicism and apathy among citizens and closed minds among
policy-makers.
Without freedom of information, including access to documents, there
is no accountability and without accountability there can be no democ-
racy.
79
The Global Openness Movement in 2006:
82
and Denmark (1970), France and the Netherlands (1978), Australia and
New Zealand (1982), and Canada (1983). But even this historic list dem-
onstrates the enormous range of effectiveness and implementation that
is found especially in the newest laws, since the French law in particular
provides only a shadow of the legal rights built into the U.S. or Canadian
laws, and attracts a fraction of the number of requests that other countries
deal with routinely.
Just in the last year or so, countries around the world as far apart as
Taiwan, Uganda, Azerbaijan, and Macedonia joined the list of countries
with formal access laws. A complete country-by-country accounting
may be found at the www.freedominfo.org web site, based on global data
compiled by David Banisar of Privacy International, and updated annu-
ally with links to the texts of the laws, to the web sites of government
agencies and NGOs working on access issues, and related resources.
These compilations also include several countries such as Zimbabwe and
Uzbekistan, whose statutes are freedom of information laws in name only,
since their real purposes were to censor the press and monopolize govern-
ment information but to do so under a false flag.
Perhaps the most successful implementation of a new freedom of in-
formation law has occurred in Mexico, where the transition in 2000 from
70 years of one-party rule opened political space for transparency reforms.
Media and civil society groups had banded together in a joint national
campaign named the “Grupo Oaxaca” after the historic town (site of
ancient Native American ruins on Monte Alban as well as colonial and
revolutionary monuments) where the movement first met. The new
president, Vicente Fox, a business executive representing the right wing,
embraced the transparency cause, opened the Presidential household
accounts (revealing exorbitant expenditures on sheets and towels, among
other small corruptions), and pressed for passage of the law in 2002.
But the signal accomplishment of the Mexican implementation was
the creation of new agency, an independent information commission, as
the leading edge of reform. The commission, known by its Spanish initials
as IFAI, became the center of a new generation of reformers attracted by
Fox and the possibilities for change. The commission combined judicial
powers as a tribunal for appeals of agency denials, with educational and
training functions for the public and for government officials. IFAI did
not hesitate to overrule even cabinet ministers on issues of information
withholding, and President Fox to his credit backed up the commission,
appeared at its functions, and will leave office at the end of this year with
the implementation of the access law as perhaps the only lasting achieve-
83
ment of his six years in office.
84
upper-class reformers in their political advancement.) The core reforms
seized on to solve these problems were the creation and expansion of a
professional civil service to staff the government, together with much
greater government intervention into and regulation of various sectors
of U.S. society. For example, the Federal Reserve Board (regulating the
money supply and banks) dates from 1913, as does the U.S. Department
of Labor (regulating the workplace); and the Federal Trade Commission
(anti-trust and other market regulation) dates from 1914.
The rise of the professional bureaucracy brought far more systematic
approaches to record-keeping in the U.S. government, including the first
surveys of governmental archives and the first standardized information
systems. The growth of the U.S. government – most dramatic during the
two World Wars, as the administrative state turned into the national
security state – required writing things down, and being able to find them
later. The informal arrangements of the pre-bureaucratic era no longer
sufficed when the task of government was to move hundreds of thousands
of armed soldiers across the Atlantic or Pacific oceans, provide them the
logistics to fight a war, and bring them back. The era of “normalcy”, as
President Harding called it, between the two World Wars also saw its
contribution to the professionalization of the bureaucracy and ultimately
to freedom of information, with new laws establishing the U.S. National
Archives in 1934 (previously, government records were preserved, or
more likely not, by the agency that created them), and the Federal Register
in 1935, for formal, daily publication of agency actions and regulations.
In one famous case in 1934, government attorneys arguing a lawsuit be-
fore the Supreme Court were embarrassed to find their case was based on
a non-existent regulation. After six years of the Federal Register produced
a bookshelf-full of agency actions, the Congress in 1941 created the Code
of Federal Regulations, as an authoritative compilation of current law and
regulation.
These disclosure mechanisms were building blocks for a future freedom
of information process. The key actors pushing these reforms ranged from
professional associations of lawyers and historians to crusading anti-cor-
ruption politicians. Perhaps the most surprising allies for more open
government came from the private sector, responding to the administra-
tive state’s increasing interventions in markets and society in the early
20th century and culminating with the establishment of the national
security state during World War II (President Eisenhower’s famous term
for this phenomenon was “the military-industrial complex”). In effect,
the mobilization by government of private industry for war production,
the massive expansion of government contracting, and the resulting surge
85
in economic growth sparked a parallel growth in the numbers and vari-
ety of “stakeholders” such as corporate contractors, industrial and serv-
ice unions, lobbyists, lawyers, trade associations, and representatives of
regulated industry. All had an interest in affecting agency actions, and the
Federal Register as it existed then only published final actions, rather than
proposed actions. A crucial turning point came in 1946, with passage of
the Administrative Procedure Act. The APA created the right of “notice
and comment,” in which agencies had to provide some period for public
comment before new regulations or proposed changes to existing regula-
tions could go into effect. For the first time, stakeholders had a formal,
legally reviewable process for participating in federal agency decisionmak-
ing. Ironically, the APA also included a flawed public information section
intended by its drafters to open government files, but which worked so
poorly because it allowed so much discretion to the bureaucrats that it
was ultimately repealed and replaced by the U.S. FOIA in 1966.
86
efficiency mechanisms – some of which, like the requirement to maintain
formal records systems documenting the activities of government, are
probably a prerequisite to any kind of successful FOI process.
The duty to publish, and a kind of threshold transparency, is fun-
damental before citizens can make informed and effective requests for
information. This routine openness also has to extend to each of the
major functions of government – executive, legislative, and judicial. The
ideal openness regime, of course, would have the government publishing
so much that the formal request for specific information (and the result-
ing administrative and legal process) would become the exception rather
than the rule. Until that time, openness advocates have reached consen-
sus on the five fundamentals of effective freedom of information statutes:
* First, such statutes begin with the presumption of openness. In other
words, the state does not own the information; it belongs to the citizens.
* Fourth, even where there is identifiable harm, the harm must outweigh
the public interest served by releasing the information, such as the gen-
eral public interest in open and accountable government, and the specific
public interest in exposing waste, fraud, abuse, criminal activity, and so
forth.
87
the greatest challenges to democratic governance in the globalized world
lies in the growing gap – the “democratic deficit” – between the power
of the international institutions to affect human lives throughout the
planet, and the power of the people so affected to hold those institutions
accountable, much less participate in the institutions’ decisions. This is-
sue is rapidly becoming the next frontier of the openness debate.
The growth of the international institutions, especially since the end
of the Cold War, is particularly dramatic. The World Bank has more than
doubled its annual commitments since 1979 and now lends in more than
100 countries, including the previously off-limits territory of the former
Soviet Union. The multilateral development banks have emulated the
World Bank in the growth of their own regional portfolios. The World
Trade Organization replaced the earlier General Agreement on Tariffs
and Trade in 1995 with a more restrictive set of rules and binding dis-
pute settlement procedures. The end of the fixed exchange rate system
in the 1970s and the debt crisis of the 1980s changed the International
Monetary Fund from the world’s exchange rate fixer into a key provider
of development assistance as well as ultimate arbiter for many countries
of whether international capital will be available at all. After 1991, the
North Atlantic Treaty Organization expanded to take in the former War-
saw Pact countries of East and Central Europe, and now has troops on the
ground in Afghanistan. But the governance structures of these interna-
tional institutions have not changed.
Discussion of the resulting “democratic deficit” is no longer limited to
the protest movement that gave the place names “Seattle” and “Genoa”
significance both as generic anti-globalization reaction and as a more so-
phisticated challenge to the legitimacy of international institutions. The
policy and scholarly literature is exploding with attempts to analyze the
problem, but at the root of the issue is the genealogy of the financial/trade
institutions (IFTIs) and the inter-governmental organizations (IGOs).
The former descend directly from central banks, which even in the most
democratic countries tend to be the least directly accountable govern-
ance institutions; and the latter spawn from lowest-common-denominator
alliances of nations, with concomitant governance processes that trend
towards the bottom. In both cases, diplomatic confidentiality served
as the norm for communications among nations that established these
institutions; and such norms – although somewhat eroded – continue to
shroud them today.
88
The Possibilities for Openness
in the International Institutions
The fact of public attention to the problem of secrecy in international
institutions should serve as the threshold signal of an opportunity for
change. One cannot underestimate the ameliorative effect of embarrass-
ment, or as the analyst Ann Florini termed this effect, “regulation by
revelation.” Such exposure has compelled in particular the IFTIs over the
past 20 years gradually to expand the documentation that is available to
the public and to improve their communication with stakeholders and
other target groups. In fact, the public relations and publications func-
tions of international institutions may well be the fastest-growing such
bureaucracies in terms of budget and employee positions. But the new
transparency more resembles a sophisticated publications scheme than it
does an actual “revolution” in accountability. Even so, there are at least
five other causes for optimism that more fundamental change may well
be possible – if civil society seizes the opportunity, and the institutions
themselves internalize the need for change.
First, what was once a marginalized, placard-expressed, protester cri-
tique of international institutions’ secrecy and lack of accountability has
now risen to the level of conventional wisdom. When the dean of Har-
vard’s Kennedy School of Government (Joseph Nye) compares the IFTIs
to “closed and secretive clubs,” when the European Union’s commissioner
for external affairs (and formerly chair of Britain’s Tory party, Chris Pat-
ten) pronounces in passing that international institutions “lack demo-
cratic legitimacy,” and when the World Bank’s former chief economist
(Joseph Stiglitz) describes increased openness as “short of a fundamental
change in their governance, the most important way to ensure that the
international economic institutions are more responsive to the poor, to
the environment [and] to broader political and social concerns” – one
sees the makings of an emerging elite consensus on the problem and the
potential role of greater openness in addressing the “democratic deficit.”
In this formulation, openness becomes the next best thing to democratic
governance, and when the latter is unlikely because those in control are
unlikely to give up that control, then transparency will serve as the most
important alternative control mechanism, and the possible threshold for
addressing governance.
Second, as a result of outside pressure and the emerging conventional
wisdom, international institutions themselves are paying at least lip
service to the need for greater openness, and in some cases, have actu-
ally achieved significant progress towards more transparency. Each of the
89
multilateral development banks, for example, has promulgated formal
policies on access to their internal documentation, and a wide variety of
records that were previously secret are now routinely provided to the pub-
lic – although host government veto power and ingrained bureaucratic
self-preservation instincts still prevent the most controversial information
from such routine publication. Starting in 1999, the almost simultaneous
emergence of the left-wing antimarket critique featured in the Seattle
and Genoa demonstrations, among others, with the right-wing promar-
ket critique offered by the Republican-dominated U.S. Congress and
its Meltzer Commission about the banks and the IMF, pointed towards
greater transparency as one of the few strategies that addressed both wings
of the debate. The real importance of these developments, however, is
that the pro-openness rhetoric from IFTI and IGO leaders, together with
the existence of formal disclosure policies, provides extensive leverage
points for activists who are willing to test specific instances of secrecy and
to pursue an “inside-outside” strategy of working with internal reformers
and external watchdogs.
Third, the international financial institutions have themselves begun
advocating national level openness laws, as part of their new emphasis on
governance and accountability as a standard for aid and investment, and
therefore are harder pressed to avoid transparency themselves. Research
supported by the World Bank has established a wide range of governance
indicators that associate transparency with decidedly lower levels of cor-
ruption, more effective delivery of public services, and more public voice
for stakeholders and constituencies. The evidence has become strong
enough that the World Bank has officially included the promotion of
access-to-information laws as one of its own goals for anti-corruption and
development efforts around the globe.
Fourth, civil society organizations around the world have seized on
openness as a threshold goal in struggles over the whole panoply of social
issues, ranging from the environment to AIDS to poverty reduction to
corruption. In India, for example, the Mazdor Kisan Shakti Sanghatan
(MKSS) grassroots movement based in Rajasthan began in 1990 with a
focus on securing the legally-required minimum wages for poor farmers
and rural laborers, but soon realized that access to official records was key
not only to that goal, but also to preventing corruption and enforcing a
connection between government expenditure and human need. Ironi-
cally, this tactical choice by NGOs has coincided at least rhetorically
with the rise among elites – not least the professional staffs of the interna-
tional institutions themselves – of the so-called “Washington consensus”
for market-driven economic development, the fundamental assumptions
90
of which require highly-distributed information to make markets work
– thus adding efficiency arguments to the moral and political critiques
already employed by activists.
Fifth, the success of the international movement for freedom of
information at the national level, with new laws in dozens of countries
over the past few years, has brought new attention to the international
level of governance. While there is enormous variation in the effective-
ness of these laws, and major difficulties remaining in the implementation
of such rights in transitional democracies with limited rule-of-law, one
hallmark of the dozens of national campaigns has been their attentiveness
to other national models and their outreach for international connections
and support. In the process, international FOI campaigners have identi-
fied the problem of secrecy in the international institutions as a major
priority for future work, and have begun reaching out beyond the tradi-
tional FOI community to NGOs and civil society activists experienced in
the various IFTI accountability efforts. Over time, these new networks are
likely to develop even more dramatic reform proposals for openness and
accountability in the international institutions, ranging from potential
international treaties as an overarching framework based on human rights
arguments, to notice-and-comment requirements for projects and policy
changes.
91
Serbian Student’s Request Reveals Corruption in School, Spurs Gov-
ernment Investigation
I.N., a 17-year-old student, sent an access to information request to his
school, seeking information about its financial operations and other mat-
ters. The institution refused to provide the information, and on several
occasions sought to cancel the request on the basis that the requester was
a minor. But I.N. appealed to the Commissioner for Information, which
ordered that the request be fulfilled. The financial data that the student
obtained showed serious abuses and corruption at the school, which is
now being investigated by the Organised Crime Directorate.
Rodoljub Sabic, “Jonesko in secondary school,” Danas (Serbia),
Nov. 22, 2005.
92
ated Press, the U.S. Department of Defense for the first time released a
comprehensive list of the names and nationalities of 558 foreign terrorism
suspects held at Guantanamo Bay, Cuba. The Pentagon had long resisted
releasing any details about the prisoners, citing security concerns in let-
ting al Qaeda know which of its members had been captured. But under
several recent court orders, the government was made to release more
than 7,000 pages of documents relating to military hearings at Guantana-
mo Bay, and then also agreed to provide the complete list of detainees.
Will Dunham, “US releases extensive list of Guantanamo detainees,”
Reuters, April 20, 2006.
U.S. Military Sent Troops With Severe Mental Health Problems into
Combat
A report obtained under the Freedom of Information Act (FOIA) by The
Hartford Courant described numerous cases in which the military did not
follow regulations requiring screening, treatment and evacuation of men-
tally ill troops in Iraq. Twenty-two U.S. troops in Iraq committed suicide
in 2005, the highest rate since the start of the war. The report detailed
how fewer than 1 in 300 troops screened were referred to a mental health
professional before being deployed, and that some of the service mem-
bers who committed suicide had been kept on duty despite clear signs of
mental health problems.
“Report: Troops with mental health problems forced into combat,”
Associated Press, May 14, 2006.
93
Canadian Government Warned that Food Supply is Vulnerable to Ter-
rorism
A report, released under the Access to Information Act by the Canadian
Food Inspection Agency (CFIA), warns that the Canadian food supply
chain has a number of “weak links” and is vulnerable to terrorist attacks.
The document describes several potential scenarios, including biological
strikes on livestock and sabotage of genetically modified crops, and also
cites inadequate security at food processing plants as a major concern.
James Gordon, “Food supply a terrorism risk,” Ottowa Citizen,
May 15, 2006.
96
NATO civil and military bodies” to ensure proper protection of such
information. The disclosure was of particular significance because the
governments of Canada, the United Kingdom, and the United States
have previously refused to release this document and others regarding
NATO information security policies.
“Hungarian Government Releases NATO Secrecy Policy Document,”
freedominfo.org, Sept. 22, 2006.
97
Anders Chydenius
(1729-1803)
Anders Chydenius was one of the most notable politicians of eighteenth
century Sweden-Finland. He is most of all remembered as an outspo-
ken defender of freedom of trade and industry, the Adam Smith of the
North. Chydenius’ views on free trade emanated from his general ideol-
ogy of freedom. In his view democracy, equality and a respect for human
rights were the only way towards progress and happiness for the whole of
society. Behind Anders Chydenius’ thought and actions there can be seen
three of the main keys to the spirit of his time: the idea of natural rights,
the natural scientific worldview, and pietism, which emphasises the reli-
gious convictions of the individual.
98
In 1770 An-
ders Chydenius
(1729-1803) was
appointed rec-
tor of Kokkola
Parish. The same
year this portrait
of Chydenius
was painted by
Per Fjällström
(Alaveteli Church,
Finland).
99
own orchestra, which gave concerts in the rectory’s reception hall. One of
his main tasks during his latter years was the supervision of the building
of the extension to the old parish church. Chydenius died in 1803.
100
The National Gain is a treatise of oure classical liberalism, which is
why posterity often has considered it one of Chydenius’ most important
works. Due to this work pioneering free trade Chydenius has often been
compared to Adam Smith. The democratic basic view of Chydenius has
largely been neglected, however. He objected both to the patronage by
the state and to monopolistic large-scale entrepreneurship. His view is
that freedom in economic life is freedom at grass-root level, the rights of
individuals to realize their ideas in life.
101
The Anders Chydenius
Foundation
The Foundation serves to promote discussion on the liberalization of the
economy and its consequences in the light of the ideas and tradition of
Anders Chydenius (1729-1803), to support academic research into this
topic and to influence decisions in this field by laying emphasis on ethical
values.
Although Anders Chydenius spoke of the liberalization of the
economy and the elimination of privileges, he was firmly of the opi-
nion that the economy existed for the good of the people and not the
people for the good of the economy. His political platform was based on
democracy, equality and respect for human rights. The need for ethical
discussions in society on the basis of these values does not seem to have
diminished in the least.
The Foundation sees its role as one of stimulating discussion and
exercising influence in practical matters. It brings together researchers,
thinkers, decision-makers and other influential persons to deliberate over
aspects of the globalizing economy or the development of an information
society, for instance. Chydenius himself demonstrated that international
discussions can be responsive to initiatives from outside the major centres
of activity.
The Foundation in cooperation with the Chydenius Institute has
launched a project to publish a scientific edition of Anders Chydenius’
collected works during the years 2006-2010. The complete works will be
published in 10 volumes in their original language Swedish, and trans-
lated into Finnish. In addition, the principal works of Chydenius and a
comprehensive biography will be published in English. The complete
works will also be published in an electronic format in internet.
The Anders Chydenius Foundation was founded in 2001 and is loca-
ted in his home town of Kokkola.
102
Seminar on the 240th
Anniversary of Freedom of Information
”Democracy and Transparency in the European Union”
103