No claim for return or destruction of archived diary copies

Case no. BS-49623/2023-HJR
Judgment delivered on 18 April 2024

A
vs.
The Danish National Police
and
The Danish National Archives

In November 1981, A was arrested and charged with violating Section 108 of the Danish Criminal Code for illegally assisting a foreign intelligence service (the KGB). During a search of his home, the Danish Security and Intelligence Service (the PET) found his diaries. The seizure of the diaries by the police was authorised by court order. In April 1982, the Minister for Justice dismissed the charges against A, after which the seized diaries were returned to him. A copy of the diaries relating to the case (the operation case file) which had formed the basis for the charge and the dismissal of charges was still kept by the PET. Copies of parts of the diaries also remained in his personal case file at the PET. The personal case file and the operation case file were handed over to the Danish National Archives in 2014 and 2018, respectively. The PET kept two administrative case files on behalf of the Danish National Archives.

The main issue in the case was whether A was entitled to demand that the Danish National Archives and the Danish National Police return or destroy all or parts of the diary copies included in the archived case files.

The Supreme Court stated that it follows from the Danish Archives Act and the Executive Order on Public Archives that public authorities are obliged to preserve and transfer all public records to the Danish National Archives, unless the National Archivist has laid down provisions on disposal (destruction).

When the PET, according to the evidence, made the decision to archive the case files in 2010, the National Archivist had not ordered their disposal, nor had such an order been made subsequently. The PET was therefore obliged to preserve the case files with the diary copies and to hand over the case files to the Danish National Archives.

The Supreme Court held that the original procurement and keeping of the diary copies were not unlawful, and that there was no infringement of A’s copyright to the diaries.

The question was then whether Article 8 of the European Convention on Human Rights on, among other things, the right to private life meant that A was entitled to demand that the Danish National Archives and the Danish National Police return or destroy all or parts of the diary copies included in the archived case files.

The Supreme Court stated that the seizure of the diaries and the PET’s copying and keeping of the diary copies until 2010 amounted to a restriction of A’s right to respect for his private life, cf. Article 8(1). The restriction was authorised by law and was justified on grounds of national security and the prevention of disorder and crime (combating crime). Taking into account the criminal proceedings and the PET’s intelligence work, the Supreme Court found that this restriction was proportionate, cf. Article 8(2).

Furthermore, the Supreme Court stated that the archiving of the diary copies and the resulting access to the archives must also be considered a restriction of A’s right to private life under Article 8(1). The PET’s was authorised to keep the files under the archive legislation to safeguard the interests set out in Article 8(2) of the ECHR.

The Supreme Court stated that according to the case law of the European Court of Human Rights, it is compatible with the Convention for member states to intervene through general measures when an individual assessment in each case could lead to, among other things, considerable uncertainty, resource consumption, delay and arbitrariness.

The Supreme Court stated that the archive legislation constitutes general measures stipulating which public records must be preserved or disposed of, and that an individualised preservation and disposal assessment at document or case level would entail a very significant consumption of resources and a great delay in the archiving process. Such an assessment would also entail a risk of uncertainty and arbitrariness in connection with archiving.

The Supreme Court found that the legislature had carefully weighed the public interest in the preservation of and access to public records on the one hand and the individual’s right to private life on the other hand in the general scheme of the archive legislation, including the introduction of availability deadlines and special protection considerations in the event of deviation from these deadlines.

The effect of the archive legislation for A was that the diary copies would become available in 2085.

Based on an overall assessment, the Supreme Court found that the archiving of the diary copies and the resulting access to the archives had to be considered a proportionate restriction of A’s right to private life under Article 8 of the ECHR.

Accordingly, A was not entitled to claim that the National Archives and the National Police return or destroy all or parts of the diary copies included in the archived case files. Accordingly, the Supreme Court gave judgment in favour of the National Archives and the National Police.

The High Court had reached the same conclusion.