Public sector employees are bound by professional secrecy with regard to confidential information that is obtained during their employment, and they may incur criminal liability if such information is disclosed. However, such employees may, under certain circumstances, be exempt from criminal liability. In a recent case, the Supreme Court had to decide whether an exemption was applicable and whether the new Whistle-blower Protection Act played a part in this regard.
The case concerned an occupational therapist who was employed in a Danish municipality. In her view, the municipality's handling of cases regarding health-related early retirement, for example, was illegal or open to criticism; therefore, she wanted to draw public attention to the issue. In order to do this, the occupational therapist took home 89 case files that contained sensitive information about the citizens concerned, and handed them over to a journalist.
The district court and the high court held that the occupational therapist had violated the Criminal Code by unduly disclosing confidential information to the journalist and that her actions were not covered by the exemption under which disclosure is not subject to criminal liability if the person concerned acts in legitimate pursuit of public interest.
The occupational therapist brought the case before the Supreme Court.
In its judgment, the Supreme Court stated that based on the interests of the individual citizen and the interests of general trust between citizens and public authorities, it is essential that confidential information is not disclosed. In this particular case, such interests outweighed the need for shedding light on the municipality's case handling. Consequently, the disclosure was a criminal offence.
During the proceedings in the Supreme Court, the occupational therapist claimed that by adopting the Whistle-blower Protection Act, Parliament had indicated that it is in the public interest that serious breaches of law and other serious matters come to the attention of the public. According to the occupational therapist, this supported the view that her actions constituted a legitimate pursuit of public interest and were, therefore, exempt from criminal liability.
The Supreme Court stated that under the Whistle-blower Protection Act, whistle-blowers cannot be regarded as having set aside a statutory duty of confidentiality if this is necessary in order to report a serious breach of the law. In this regard, the Supreme Court further stated that, according to the preparatory notes to the Act, the assessment under the Criminal Code of whether disclosure constitutes a legitimate pursuit of public interest may be a guiding principle.
Since the occupational therapist was not exempt from criminal liability under the Criminal Code, she was not exempt from criminal liability under the Whistle-blower Protection Act either. On this basis, the Supreme Court upheld the judgment of the high court.
The Supreme Court's judgment confirms that a high threshold must be overcome in order for disclosure of confidential information to constitute "a legitimate pursuit of public interest" and, therefore, to be exempt from criminal liability. Further, the judgment shows that the rule in the Criminal Code under which disclosure of confidential information may be allowed if the disclosure constitutes a legitimate pursuit of public interest can be regarded as a guiding principle in relation to the rule in the new Whistle-blower Protection Act on setting aside statutory duties of confidentiality in case of public disclosure.
For further information on this topic please contact Søren Terp Kristophersen at Norrbom Vinding by telephone (+43 35 25 3940) or email ([email protected].com). The Norrbom Vinding website can be accessed at norrbomvinding.com.