To start page
  • Use of cookies
  • Archive
  • Sitemap
  • Contact
  • Print
  • Print
  • Change text size
Norsk

UDI circulars

RS 2010-149
Document-ID : RS 2010-149
Case-ID : 15/05760-10
Documentdate : 12.01.2010
Receiver :

The Chiefs of Police
The foreign service missions
All Directorate of Immigration staff

Duty of confidentiality regarding personal information in immigration cases – Sections 13 and 13b of the Public Administration Act

1. Introduction

2. Relationship to the Freedom of Information Act and the Personal Data Act

2.1. Relationship to the Freedom of Information Act of 19 may 2006 no. 16

2.2. Relationship to the Personal Data Act of 14 april 2000 no. 31

3. Limitations of the circular

3.1. Provisions of the Public Administration Act not specifically discussed

3.2. General documents

3.3. Duty of confidentiality for employees at asylum reception centres

3.4. The Security Act of 20 March 1998 no. 10, and the regulation of 17 March 1972 no. 3352 (The Protection Instructions)

3.5. The Police Act of 4 August 1995 no. 53/Criminal Procedure Act of 22 May 1981 no. 25.

4. The duty of confidentiality – purpose and content

4.1. What is the purpose of the provisions of the Public Administration Act concerning the duty of confidentiality?

4.2. Who has a duty of confidentiality?

4.3. Under what conditions does the duty of confidentiality arise, and when does it apply?

4.4. What does the duty of confidentiality involve?

4.5. What information is subject to the duty of confidentiality? – some starting points

4.6. Further guidelines on what information is covered by the duty of confidentiality

4.6.1. ”An individual’s personal affairs” – section 13, first paragraph, item 1, of the Public Administration Act

4.6.2. Information concerning the processing of a case

4.6.3. Information concerning whether a decision has been made

4.6.4. Information concerning the type of decision and the grounds for the decision

4.7. Exceptions to the duty of confidentiality – the right and duty to provide information

4.8. How may the administration or service use information internally?

4.8.1. For the purpose for which it was obtained, section 13b, first paragraph, item 2, of the Public Administration Act

4.8.2. Suitable allocation of work, section 13b, first paragraph, item 3, of the Public Administration Act

4.8.3. Particular guidelines on the use of confidential information in immigration cases other than the case for which the information was obtained – section 13b, item 3, of the Public Administration Act

4.8.4. Anonymity/statistics

4.9. When may the administration disclose confidential information to private persons, private organisations and the like?

4.9.1. Information to parties (applicants) or representatives/agents – section 13b, first paragraph, item 1, of the Public Administration Act

4.9.2. Identification and disclosure of information to the party

4.9.3. Power of Attorney

4.9.4. The party consenting to confidential information being made accessible to others

5. When may one administrative agency disclose information to another?

5.1. Right and duty to provide information in certain cases

5.2. Disclosure to other administrative agencies – section 13b, first paragraph, item 5, of the Public Administration Act

5.2.1. Information concerning a person’s connection with the agency – section 13b, first paragraph, item 5, of the Public Administration Act.

5.2.2. Concerning decisions made

5.2.3. Information necessary to”facilitate the tasks assigned to the said agency pursuant to statute, instruction or its terms of reference”.

5.3. Formal requirements

5.4. Disclosure of information by the immigration administration to the police/prosecuting authorities – criminal cases

5.4.1. The right to report and provide information to the police concerning violations of the law

5.4.2. What documents and information may be disclosed?

5.4.3. Formal requirements for the police’s request for access

6. Disclosure of documents to other countries’ authorities

7. The police (the prosecuting authorities) intending to forward the information to foreign authorities

8. Particular guidelines on disclosure of information to the media

1. Introduction

The purpose of this circular is to establish an unambiguous, uniform practice within the Directorate of Immigration, the police as an administrative authority and the foreign service missions with respect to disclosure of personal information in immigration cases according to sections 13 and 13b of the Public Administration Act concerning the duty of confidentiality.

The Directorate of Immigration may impose binding guidelines on the police and foreign service missions in immigration cases. This also applies to the application of the provisions concerning the duty of confidentiality within the immigration field.

The provisions of the Public Administration Act apply to the processing of immigration cases, except as otherwise specifically provided in the Immigration Act, cf. section 80 of the Immigration Act. A separate provision has been provided in section 98, second and third paragraphs, of the Immigration Act, enabling the immigration authorities to exchange information with other countries participating in cooperation under the Schengen Agreement and the Dublin Agreement notwithstanding the duty of confidentiality. In other respects, the provisions of the Public Administration Act apply to immigration cases, including its provisions concerning the duty of confidentiality.

The provisions of the Public Administration Act concerning the duty of confidentiality leave a great deal of discretion to the person applying the rules. This circular aims to provide an overview of the legal background and understanding of these provisions, in addition to factors that are relevant for use in the discretionary assessment.

2. Relationship to the Freedom of Information Act and the Personal Data Act

2.1. Relationship to the Freedom of Information Act of 19 may 2006 no. 16

The general rule is that all case documents with administrative agencies are public, cf. section 3, first sentence, of the Freedom of Information Act. Exceptions to this general rule must be laid down in statutory provisions. If a document as a whole is not covered by such statutory exception, access to the document as such cannot be denied. If the information contained in the document is also not covered by such a statutory exception, access to the individual pieces of information also cannot be denied.

Information that is subject to a duty of confidentiality pursuant to law is exempted from public access, cf. section 13, first paragraph, of the Freedom of Information Act. Section 13, first paragraph, item 1, of the Public Administration Act stipulates that information concerning ”an individual’s personal affairs” is subject to a duty of confidentiality; therefore, such information is exempted from public access. The general rule is that the remaining information in the document is public.

The regulation of 17 October 2008 no. 1119 issued pursuant to the Freedom of Information Act stipulates an exemption rule stating that entire documents may be exempted from public access in individual cases pursuant to the Immigration Act, cf. section 9, fourth paragraph, of the regulation. For further guidelines on the Freedom of Information Act, see RS 2009-020.

2.2. Relationship to the Personal Data Act of 14 april 2000 no. 31

The purpose of the Personal Data Act is to help to ensure that personal information is processed in accordance with fundamental respect for the right to privacy, cf. section 1, second paragraph, and section 11 of the Personal Data Act.

The Personal Data Act applies to all types of processing (use) of personal information, except processing which is carried out exclusively for private purposes, regardless of whether or not the personal information being processed is confidential.

Personal information includes any ”information and assessments that may be linked to a natural person”, regardless of whether or not the personal information is confidential.

Any use of personal information in the form of disclosure to others must be authorized by law, by consent from the data subject or by one of the so-called ”necessity reasons” in section 8, and possibly section 9, of the Personal Data Act. Legal authority for disclosure may be found in one or more provisions in sections 13a ff of the Public Administration Act, or in provisions in a special law.

The Personal Data Act contains provisions concerning right of access for the public and the data subject, cf. section 18 of the Act. The public’s right of access supplements the Freedom of Information Act when it comes to access to non-confidential documents and information. The data subject’s right of access supplements sections 13a, item 1, and 13b, item 1, of the Public Administration Act, which provide legal authority for disclosure of confidential personal information to those it directly concerns or to the parties to the immigration case.

The provisions of the Personal Data Act concerning access provide a right of access to certain information, but not a right of access to the actual document (the storage device) which contains the data. However, access to documents may be requested in accordance with the provisions concerning parties’ right of access in section 18 of the Public Administration Act, or the provisions concerning access to documents in section 3 of the Freedom of Information Act.

Primarily, this circular only deals with the assessment of the provisions of the Public Administration Act concerning the duty of confidentiality. Nevertheless, insofar as pertinent provisions and assessments under the Personal Data Act are relevant, discussions and references to this act have been included in this circular.

3. Limitations of the circular

3.1. Provisions of the Public Administration Act not specifically discussed

The circular deals only with the rules according to sections 13 and 13b of the Public Administration Act. Other provisions of the Public Administration Act, therefore, are not specifically dealt with in the circular.

The Directorate of Immigration has provided specific guidelines on parties’ right of access in immigration cases, see the Directorate of Immigration’s circular RS 2010-154 – Partsinnsyn i utlendingssaker (Parties’ Right of Access in Immigration Cases) – sections 17–21 of the Public Administration Act. 

3.2. General documents

This circular deals only with issues pertaining to disclosure of personal information in individual cases, not issues pertaining to disclosure of case documents, such as practice memorandums and other general documents.

3.3. Duty of confidentiality for employees at asylum reception centres

Asylum reception centres operated by private players (private reception centres) are not administrative agencies, cf. section 1 of the Public Administration Act. Therefore, employees at private reception centres have no statutory duty of confidentiality according to the Public Administration Act. However, according to the operations and data processing agreements between the Directorate of Immigration and private reception centres, employees at private reception centres do have a duty of confidentiality based on the provisions in sections 13 ff of the Public Administration Act. The operations agreements also state that employees at private reception centres do not have a duty of confidentiality towards employees with the Directorate of Immigration.

Asylum reception centres operated by municipalities (municipal reception centres) are regarded as administrative agencies. Consequently, employees at municipal reception centres have a statutory duty of confidentiality according to the provisions of the Public Administration Act concerning the duty of confidentiality, also towards the Directorate of Immigration and other parts of the immigration administration. Employees at municipal reception centres, like employees at private reception centres, also have a duty of confidentiality in accordance with the requirements of the data processing agreement between the individual municipal reception centres and the Directorate of Immigration. Therefore, employees at municipal reception centres must have legal authority based on sections 13a ff of the Public Administration Act, or on other special statutory provisions concerning exemptions from duty of confidentiality, in order to disclose confidential personal information about occupants staying at reception centres to others.

This circular does not further regulate the duty of confidentiality for employees at municipal reception centres towards the Directorate of Immigration or other entities, since we do not have power of instruction over municipal reception centres. This circular also does not specifically regulate the duty of confidentiality for employees at private reception centres towards entities other than the Directorate of Immigration.

3.4. The Security Act of 20 March 1998 no. 10, and the regulation of 17 March 1972 no. 3352 (The Protection Instructions)

This circular does not encompass disclosure of information in documents which are classified according to the Security Act or the Protection Instructions. The Directorate of Immigration has separate, in-house guidelines for the processing of such information, see IM 2010-037.

3.5. The Police Act of 4 August 1995 no. 53/Criminal Procedure Act of 22 May 1981 no. 25.

The police’s duty of confidentiality is regulated in section 24 of the Police Act, sections 13 to 13f of the Public Administration Act, and sections 61a to 61e of the Criminal Procedure Act.

Special rules regarding the duty of confidentiality in the Police Act and the Criminal Procedure Act are not discussed in this circular. However, see section 5.4, which deals with disclosure of information to the police/prosecuting authorities.

4. The duty of confidentiality – purpose and content

4.1. What is the purpose of the provisions of the Public Administration Act concerning the duty of confidentiality?

The rules regarding the duty of confidentiality are, in principle, based on regard for the interests of the private party or client, see proposition no. 3 to the Odelsting (1976–77) relating to the Act to amend the Act of 10 February 1967 relating to the procedure in cases concerning the public administration (rules regarding duty of confidentiality, etc.). The immigration administration depends on the provision of sensitive information by applicants and other people in order to properly perform its assigned tasks. The private party should feel confident that the information he/she provides to the administration will not be forwarded to unauthorized persons, or be used for purposes other than those for which it was obtained, or to a greater extent than authorized. The rules regarding the duty of confidentiality in sections 13 ff of the Public Administration Act are not designed to protect public interests, or to, for instance, avoid unpleasant experiences and an increased workload associated with administrative cases being made the subject of public debate.

4.2. Who has a duty of confidentiality?

The duty of confidentiality applies to ”any person rendering services to, or working for, an administrative agency”, cf. section 13, first paragraph, of the Public Administration Act.

This means both those who have an employment relationship with the administration, both in the form of permanent employment and temporary appointments or posts, and persons who are appointed by the administration to perform occasional tasks, such as interpreters. Thus, the number of persons involved is high, and neither the job content nor the length of the affiliation is of significance here.

Legal persons performing contractual service tasks on behalf of the public and not making individual decisions or issuing regulations are, as a general rule, considered to be private legal subjects. Employees with private legal subjects do not have a duty of confidentiality according to the Public Administration Act.

4.3. Under what conditions does the duty of confidentiality arise, and when does it apply?

The duty of confidentiality applies to any information disclosed to a person ”in the course of his duties”, cf. section 13, first paragraph, of the Public Administration Act. If the information has been disclosed under such circumstances, the manner in which the person obtains knowledge of the information is irrelevant, whether it be through preparatory or procedural responsibilities in an immigration case, through archiving, or through coincidentally overhearing a conversation concerning the case.

Information received by the person concerned outside work hours is, in principle, not subject to the duty of confidentiality. If the information is received outside work hours, but due to the actual work connection, it will still be subject to the duty of confidentiality.

The duty of confidentiality applies both during and outside work hours. It also applies after the work has terminated, cf. section 13, last paragraph, of the Public Administration Act. The person concerned may not use the information in his own business activities or in work for others.

4.4. What does the duty of confidentiality involve?

Rettleiar til offentleglova” (Guide to the Freedom of Information Act), page 54, states:

”Firstly, the duty of confidentiality involves a prohibition against making the information known to third parties by telling third parties about the information or delivering documents to third parties. However, refraining from forwarding the information is not enough: One must actively prevent others from obtaining knowledge of the information. This includes safe storage of the information which is subject to the duty of confidentiality to ensure that third parties do not have access to it. In many situations, for instance, documents should not be left on the desk with the office door open, or brought home, and made available for unauthorized persons.”

The duty of confidentiality means that any person working for an administrative agency has a duty to ”prevent others from gaining access to, or obtaining knowledge of,” certain information, cf. section 13, first paragraph, of the Public Administration Act. ”Others” means any person other than the person concerned, including colleagues internally with the administrative agency, other persons within the administration, private persons and private legal subjects.

Confidential information may only be forwarded to others if there is legal authority for this in the Public Administration Act or in special legislation.

The duty of confidentiality is an ”active” obligation, i.e. the administration is obliged to safeguard and protect information against access by others through hearing about the information or through gaining access to documents or notes. In specific, this means, for instance, not talking about confidential information if unauthorized persons could overhear the conversation, storing documents containing confidential information in a manner which prevents unauthorized persons from gaining access to such documents, and closing the computer screen when leaving the office.

 

Any breach of the duty-of-confidentiality rules also falls under section 121 of the Penal Code.

4.5. What information is subject to the duty of confidentiality? – some starting points

The information covered by the duty of confidentiality can be seen from section 13, first paragraph, of the Public Administration Act. The duty of confidentiality covers information concerning:

1) an individual’s personal affairs
2) technical devices and procedures, as well as operational or business matters which for competition reasons it is important to keep secret in the interests of the person whom the information concerns

The duty of confidentiality applies regardless of whether the information is contained in case documents or other electronic systems, such as the computer system used for immigration and refugee cases (DUF). Also irrelevant is how a document with personal information has been filed in the immigration case, whether it has been filed as a so-called ”0 doc” or as a standard case document in the case file.

4.6. Further guidelines on what information is covered by the duty of confidentiality

4.6.1. ”An individual’s personal affairs” – section 13, first paragraph, item 1, of the Public Administration Act

In immigration cases, the duty of confidentiality covers information concerning «an individual’s personal affairs», cf. section 13, first paragraph, item 1, of the Public Administration Act.

”Individual” refers to a natural person.

This provision does not imply that all information concerning individuals is subject to the duty of confidentiality. It must be information which one would normally want to keep to oneself. A guide in assessing this is that the information could presumably contribute to compromising or harming the individual concerned in the public eye.

What one would normally want to keep to oneself will be a matter of discretionary assessment based on what is generally considered to be personal. Personal affairs include identifying information, an individual’s qualities, acts engaged in by that individual, or other sensitive information. In addition to mere information concerning individuals, assessments made by the immigration administration or others with respect to individuals will also be covered by the duty of confidentiality.

In assessing whether the information is personal, it may also be relevant to consider if information which is neutral in principle could, when used in combination with other available information, constitute a risk of compromising the individual.

In principle, applying for protection cannot be regarded in Norway as likely to harm a person in the public eye, but could have detrimental effects for the applicant or the applicant’s family members if the cited persecutor learns about the matter.

In each individual case, a specific assessment of what is regarded as personal information must be made. The assessment must be based on elements including those stated below. The information that is considered confidential will vary from one case type to another, and may also depend on who requests/receives the information.

Examples of information often regarded as personal include information such as name, kinship, family affairs, physical and mental health, financial affairs, education, attitudes, sexual orientation, convictions, incidents and actions, etc. Photos, film and audio recordings of persons should be treated with extra care. In assessing what information is regarded as personal, the elements listed in section 13, second paragraph, first sentence, of the Public Administration Act should be taken into account. This information is regarded as generally neutral and having a low level of sensitivity, and is therefore, in principle, not regarded as information concerning ”personal affairs”.

The following personal information should, as a general rule, not be regarded as information concerning ”personal affairs”:

  • place of birth
  • date of birth
  • personal identity number
  • citizenship
  • marital status
  • occupation
  • place or residence
  • place of employment

However, the types of information stated above will be covered by the duty of confidentiality if they ”disclose a client relationship or other matters that must be considered personal”, cf. section 13, second paragraph, first sentence, of the Public Administration Act.

As previously mentioned, whether or not the information discloses «matters that must be considered personal» must be specifically assessed in each individual case. Information which discloses the fact that a person has applied for protection in Norway will be subject to the duty of confidentiality. Therefore, information concerning place of residence will be regarded as personal information if the person concerned is staying at an asylum reception centre. Also, the address of an applicant should not be disclosed if the applicant is in prison or staying at a women’s shelter. Another example where the address may be covered by the duty of confidentiality is cases where persons are subjected to forced marriage/violence.

Client relationship
As a general rule, the fact that a person is, or has been, in contact with the immigration administration («client relationship») is not in itself information concerning personal affairs, and is therefore not covered by the duty of confidentiality. It goes without saying that a foreign national residing in Norway must have contact with the immigration administration at some point; thus, this cannot be deemed stigmatizing.

However, this general rule is not absolute. If information concerning the relationship to the immigration administration could disclose other personal matters, such as the fact that the person concerned has applied for protection or has an expulsion case with the directorate, the duty of confidentiality will apply. This is because this is information which one would normally want to keep to oneself.

DUF no.
According to section 13, second paragraph, of the Public Administration Act, personal identity numbers are, in principle, not confidential information. However, this provision also states that if this could disclose a client relationship or other matters which must be considered personal, it should be considered personal. DUF numbers may be regarded as information equivalent to personal identity numbers. A DUF number is assigned to anyone applying for a permit in Norway. Like a personal identity number, the DUF number does not, in itself, provide any personal information. DUF numbers should therefore not be regarded as confidential information. Nevertheless, there is reason to be hesitant in disclosing such information. If we, by disclosing a DUF number, could risk disclosing other personal affairs, such information should be regarded as confidential and not be disclosed.

Information not considered to be information concerning personal affairs
Even though some information in individual cases is not considered to be information concerning personal affairs and therefore, in principle, is not subject to the duty of confidentiality, a specific assessment must be made as to whether or not the administration should disclose such information. It could still be regarded as personal information according to section 2, first paragraph, item 1, of the Personal Data Act. We must also consider the privacy of the person concerned, and if the person requesting the information has a legitimate interest in receiving the information, cf. section 8, first paragraph, litra f, of the Personal Data Act.

Below is a list of elements which may provide an indication of whether or not personal information should be disclosed (the list is not exhaustive):

  • Would disclosure of the information harm or compromise a person/result in negative social reactions?
  • Would the information (e.g. information which is neutral in principle) in combination with other available information involve a risk of compromising a person?
  • What type of decision is concerned?
  • How personal/private is the information in question to the person it concerns?
  • Sensitive personal information according to section 2, item 8, of the Personal Data Act will always be regarded as information concerning personal affairs.

4.6.2. Information concerning the processing of a case

As mentioned above in section 4.6.1, it is generally assumed within the immigration administration that the actual client relationship with the immigration administration is not confidential.

Therefore, the principle is that neutral information concerning the processing of a case may be disclosed.

Examples of such neutral information include the fact that the immigration administration has received an application, that the application has been registered, whether it is held by the police, the foreign service mission or the Directorate of Immigration, and when it is expected to be fully processed.

However, in cases where information which is neutral in principle is likely to disclose personal affairs, such information may not be disclosed because it is considered confidential. By way of example, information as to which agency is holding the case is neutral information, as mentioned above. However, if a case is being held by the Police Security Service (PST) or the National Bureau of Crime Investigation (Kripos), this could suggest something about the case which makes it no longer neutral information.

Another question is whether information concerning when a person applied for a permit may be disclosed. This must be specifically assessed in each individual case, based on elements such as those mentioned at the end of section 4.6.1.

In cases concerning protection, revocation and expulsion, information about the processing of such cases will, in principle, be covered by the duty of confidentiality. A possible exception is if it is already common knowledge elsewhere that the person concerned has an asylum case or another case being processed by the directorate, cf. section 13a, item 3, of the Public Administration Act. Still, there is reason to exercise caution in such cases.

4.6.3. Information concerning whether a decision has been made

The fact that a person has, or has not been, granted a permit is, in principle, not information concerning personal affairs, and is therefore not covered by the duty of confidentiality. This means that it is allowed to state that a positive decision has been made, or that a person has not been granted a permit. As a general rule, the fact that protection has been granted should not be disclosed. Information should not be provided to persons other than the applicant until the applicant himself/herself has been informed of the decision.

A specific problem for discussion is whether it may be stated that a person’s application has been rejected. In this respect, there is reason to exercise caution. Although, since we are allowed state that a person has, or has not been, granted a permit, it should also, following a specific assessment, be allowed to state that the person’s application has been rejected.

A specific assessment must always be made as to whether we disclose personal affairs by informing about the rejection.

An example of when it may be allowed to state that a person’s visa application has been rejected is if the grounds were a likelihood of return due to the conditions in the home country. Nevertheless, refer to section 4.6.4 for information concerning grounds.

In contrast, we should not provide information concerning a rejection if the grounds are, for example, family relations/a need of care or other personal information.

If we are uncertain whether providing information concerning a rejection would disclose personal affairs, we should refrain from making a statement regarding such matters.

Information concerning the fact that a person has been expelled may not be provided because this would disclose personal information. The fact that a person has had an application for protection rejected would normally be disclosure of personal affairs. If the case is already known, in the media or otherwise, it is conceivable that we would not be disclosing personal affairs. Still, there is reason to be cautious in this respect. See also section 8 concerning the media.

If we lack sufficient information to assess whether information is personal or not, or if we are in doubt, we must be cautious in disclosing it, except to the parties to the case. For further guidelines concerning identifying the parties to the case, see section 4.9.2.

4.6.4. Information concerning the type of decision and the grounds for the decision

Another problem for discussion is whether we may state the basis on which a permit has been granted, if permission has been granted for work/studies, a visa, citizenship or protection/strong humanitarian grounds.

As mentioned above, it may be stated that a person holds a permit. The fact that a person has been granted a visa or residence permit may also be stated. Information concerning such matters is generally not likely to disclose personal affairs.

According to section 13, second paragraph, of the Public Administration Act, ”the term ’personal affairs’ shall not include nationality”. Nevertheless, a specific assessment must be made as to whether information concerning nationality/the granting of citizenship in combination with other information would disclose other matters that must be considered personal. For example, in cases concerning forced marriage/violence, it may be important to ensure that parents do not receive information concerning this. Many such cases will be protected according to RS 2006-009 Skjerming av information om personer in DUF (Protection of Information Concerning Persons in the DUF).

We must also assess whether we may disclose information concerning what type of residence permit has been granted. An assessment must be made as to what type of permit is concerned, who is calling or requesting information, for what purpose the information will be used, etc. For example, it would not be a problem to disclose to an employer the type of work for which permission has been given. The same applies if an educational institution would like to know if a student holds a student permit.

Information concerning the fact that a person has been granted protection, on the other hand, is generally considered confidential. A particular question in this context is if information may be given concerning the fact that an applicant holds a temporary work permit. The same assessment must be made here. Temporary work permits are associated with an application for protection, and there is reason to exercise caution with respect to who is requesting the information. Temporary work permits will disclose matters considered to be personal, and are therefore confidential. If an employer for whom the person concerned works wants to know if the employee still holds a work permit, this must be acceptable. However, there is no reason to state that the person concerned holds a temporary work permit.

The content of the decision, such as the duration of the permit, whether the permit is temporary and any limitations or other conditions stipulated should not be stated to persons other than the applicant/the applicant’s representative.

A practical example that the duration of a permit could be stated after all is if the employer would like to know the duration of the employee’s permit. Whether or not such information may be given depends on the same elements of assessment as those mentioned in section 4.6.1. Such information may be provided to employers because employers have a legitimate interest in knowing such information, and because providing such information cannot be said to limit the applicant’s protection of privacy, cf. section 8, first paragraph, litra f, of the Personal Data Act.

The letter containing the decision should as a general rule not be disclosed to persons other than the party/applicant, whether it be a decision on protection or other decisions. If decisions are disclosed in certain cases, any information disclosing personal affairs must be censored.

If, for example, the case is known in the media, providing such information would be less disconcerting. Refer to section 8 for guidelines on the relationship to the media.

Grounds
In principle, we may not provide information concerning the specific grounds for the decision either, because this could disclose personal information. If the grounds do not disclose personal information, for example if the application was rejected based on a poor likelihood of return due to the conditions in the applicant’s home country, the grounds may be given following a specific assessment.

4.7. Exceptions to the duty of confidentiality – the right and duty to provide information

Both the Public Administration Act and special legislation contain provisions which limit the duty of confidentiality for certain purposes; provisions which allow confidential information to be forwarded to others. Thus, these limitations are exceptions to the general rule regarding the duty of confidentiality in section 13, first paragraph, of the Public Administration Act.

Some of the exceptions are worded such that the administration has a right to forward otherwise confidential information (the right to provide information). Other exceptions are worded as a duty to forward such information (the duty to provide information).

4.8. How may the administration or service use information internally?

4.8.1. For the purpose for which it was obtained, section 13b, first paragraph, item 2, of the Public Administration Act

The duty of confidentiality shall not prevent the information from being used for the purpose for which it was obtained.

 

In immigration cases, applicants often provide confidential information in order to obtain a permit. Thus, the purpose of providing the information is to clarify the case so that the correct decision may be reached. An applicant may, for instance, provide personal information when applying for a residence permit as a specialist. Section 13b, first paragraph, item 2, of the Public Administration Act provides the immigration administration with legal authority to use this information to assess whether conditions for e.g. a specialist permit have been met. This means that the administration may use the information in connection with the preparation of a case, the actual decision, the implementation of the decision, and follow-up and control of this decision.

In light of this provision, the immigration administration may also disclose confidential information to private experts, organizations, or other administrative agencies, including foreign ones, if this is part of the preparation of a case and the intention is to achieve the purpose for which the information was provided. Based on the above example, the immigration administration may, for instance, need to obtain other information from for example an employer, or in order to supplement and/or check factual information which already exists in the case. This also applies when the information is forwarded to other countries. See also section 5 on disclosure of documents to foreign authorities. An example of confidential information being used and disclosed in connection with the follow-up and control of a decision is cases where the Directorate of Immigration provides information concerning mental problems in connection with removal of a person from the realm by the police.

In connection with the processing of an immigration case, several players are likely to be involved; foreign service missions, the police, the Directorate of Immigration and the Immigration Appeals Board. Section 13b, first paragraph, item 2 of the Public Administration Act provides legal authority for the exchange of confidential information between these players. According to this provision, exchange of information may take place between the players to the extent that ”the information is used to achieve the purpose for which is was provided or obtained…”.

Administrative agencies receiving confidential information will be bound by a duty of confidentiality regarding the information according to the provisions in section 13 of the Public Administration Act concerning the duty of confidentiality regarding personal affairs. The police will be bound by a duty of confidentiality according to the provisions in section 24, first paragraph, of the Police Act, cf. sections 61a–61e of the Criminal Procedure Act. Private persons and others that receive confidential information will not be bound by a duty of confidentiality regarding the information unless there is legal authority for it.

4.8.2. Suitable allocation of work, section 13b, first paragraph, item 3, of the Public Administration Act

Pursuant to section 13b, first paragraph, item 3, of the Public Administration Act, otherwise confidential information may be made accessible to other ”officials within the administrative agency or service”, if this is necessary to establish suitable work routines or filing systems.

On page 33 of Proposition no. 3 to the Odelsting (1976–77) relating to the Act to amend the Act of 10 February 1967 relating to the procedure in cases concerning the public administration (rules regarding duty of confidentiality, etc.), the Ministry of Justice states that confidential information may, in general, not be exchanged between different administrative services. Furthermore, it is argued on pages 29–30 of the proposition that the provision allows confidential information to be circulated among administrative agencies associated with the same administrative service, even though the information then leaves the agency. This means that as long as the same service is concerned, information may be exchanged under this provision if such exchange is necessary to establish suitable work routines.

The immigration administration consists of several players; the police, the foreign service missions, the Directorate of Immigration, the Immigration Appeals Board and the responsible ministry. Each one of these players must be regarded as a separate agency. In line with the above, they must be regarded as belonging to the same service when it comes to the processing of immigration cases, even though they are different agencies. This means that section 13b, first paragraph, item 3, of the Public Administration Act enables confidential information to be exchanged between these players as part of the immigration case. For the police, this applies to the processing of immigration cases, but not to the processing of criminal cases. Separate provisions apply to the processing of criminal cases, see section 5.4.

”Suitable work routines and filing systems” means that the presence of a certain need to use the information in the relevant manner must be shown to be probable, cf. Geir Woxholth, Forvaltningsloven med kommentarer, 4th edition 2006, page 271. According to Woxholth, this provision enables rather extensive sharing of confidential information within the same administrative agency or service. Examples of this include assigning several case handlers to the processing of a case, or organizing the work such that several people need to have access to the information about a person, in order to ensure quality in the solution of tasks and avoid unnecessary vulnerability in connection with holidays, possible illness, etc.

The typical circulation of confidential information under this provision will involve the handling of a case by several persons, such as the archive, the front desk and one or more case handlers.

4.8.3. Particular guidelines on the use of confidential information in immigration cases other than the case for which the information was obtained – section 13b, item 3, of the Public Administration Act

A particular question is to what extent confidential information from the case documents of other persons may be retrieved, emphasized, and referred to in the grounds for the decision in individual cases. In connection with applications for family immigration it may, for example, be relevant to use information concerning family relations from the case documents of the applicant’s spouse in Norway. If the spouse came to Norway earlier, relevant information about family affairs may be contained in the asylum interview or in other documents for example.

The background of, and considerations to be made in connection with, using information from one case to another
The principle is that the administration has a duty to consider the case and ensure that it is clarified as thoroughly as possible before any administrative decision is made, cf. section 17 of the Public Administration Act. It may therefore be both relevant and important to obtain information from other persons’ case documents for the purpose of clarifying the case at hand. In many cases, the same case handler will process applications from two spouses, or other family members, and will therefore have access to the information anyways.

Information from other cases may be used if this is not deemed personal, cf. section 13, second paragraph, of the Public Administration Act; refer to section 4.6.1 for information concerning what information is deemed personal. However, there should not be a free flow of information between cases, even if the information is not confidential.

According to section 11, first paragraph, litra c, of the Personal Data Act, information obtained may not be subsequently used for purposes which are incompatible with the original purpose of the collection. If any reuse is contrary to the original purpose of the collection of the information, the information may still be used if there is authority to do so. Such authority could for example be consent from the person concerned or authority in law. Section 13, first paragraph, item 3, of the Public Administration Act provides such authority for the reuse of information.

To the extent that confidential information from other persons’ cases may be used, this should be limited to instances where a certain need to use the information in this manner is shown to be probable, cf. Woxholth, Forvaltningsloven med kommentarer, 4th edition 2006, page 271. Using other persons’ case documents to check information in a relevant application must not be a standard routine.

The use of the information can be divided into two steps; firstly obtaining the information in the case, secondly using it in the text of the decision.

With respect to the police, section 24, fourth paragraph, item 1, of the Police Act provides legal authority for communicating confidential information internally ”with the police service and the prosecuting authorities to the extent required in the course of duty”.

Obtaining information from one case for use in another
Section 13b, first paragraph, item 3, of the Public Administration Act provides legal authority for obtaining such information. This provision stipulates that the duty of confidentiality pursuant to section 13 of the act shall not prevent ”the information from being accessible to other officials within the administrative agency or service to the extent that this is necessary to establish suitable work routines and filing systems, inter alia for use as guidance in other cases”.

According to this provision, information may be used from one case to another within the administrative agency or service, providing that this is considered to be a suitable work routine and filing system. If a certain need to use the information in the relevant manner is shown to be probable, the condition is considered fulfilled, cf. Woxholth, Forvaltningsloven med kommentarer, 4th edition 2006, page 271.

However, there must not be a free flow of information between two or more cases.

Using information from one case to another
Legal authority for the right to use information from one case to another in the grounds stated in the text of the decision may be found in section 13b, first paragraph, item 1, of the Public Administration Act; ”making the information known to the parties to the case”. This provision gives legal authority for providing the party with information concerning other persons, and other affairs that do not concern the party himself, providing that the information is related to the case to which he is a party. Still, it is conceivable that the provisions concerning parties’ right of access in sections 18 ff. of the Public Administration Act may limit the right of the party to acquaint himself with certain information. Section 19, first paragraph, litra c, of the act stipulates, inter alia, that a party does not have the right to acquaint himself with information in a document which it may be considered inadvisable to reveal to him on account of his health or his relations with persons with whom he has close ties.

According to section 13b, second paragraph, of the Public Administration Act, the applicant may only use such information to protect his interests in the case, and not in any other manner. The applicant must be apprised of the fact that he has a duty of confidentiality regarding such information.

Filing of case documents
In those instances where case documents from one case are used for deciding another case, the parts of the document that are used in the relevant case must be filed in that case. The document then becomes part of the case documents in that case. This is done by photocopying the relevant information, denoting from whom the information was obtained, and the DUF number of the case from which the entire document is obtained.

4.8.4. Anonymity/statistics

According to section 13a, first paragraph, item 2, of the Public Administration Act, confidential information may be used and disclosed when the need for protection is satisfied by the information being presented in the form of statistics or by otherwise eliminating identifying characteristics.

Pursuant to this provision, confidential information may be made anonymous, and decisions may be used for educational purposes, presentations, courses, etc. If decisions are published in Regelverksportalen (the Rules and Regulations Portal), circulated within units, or otherwise made available to clarify practices, the decisions must be made anonymous.

Section 13b, first paragraph, items 2 and 3, of the Public Administration Act provides legal authority for discussing a case between case handlers. In principle, there is no need to make a case anonymous for the case to be discussed between case handlers.

4.9. When may the administration disclose confidential information to private persons, private organisations and the like?

As mentioned, confidential information may be used for the purpose for which it was obtained, and distributed internally in the immigration administration to the extent that there is a need to ensure a suitable allocation of work, cf. section 13b, first paragraph, items 2 and 3, of the Public Administration Act.

The right to provide information to the parties to the case, and to others based on the party’s consent, is discussed below.

4.9.1. Information to parties (applicants) or representatives/agents – section 13b, first paragraph, item 1, of the Public Administration Act

Naturally, the rules concerning the duty of confidentiality do not prevent disclosure of information to the parties to the case or to the parties’ representatives, cf. section 13b, first paragraph, item 1, of the Public Administration Act. Therefore, the provisions concerning the duty of confidentiality do not prevent the party from inspecting the documents in the case, sections 18 ff. of the Public Administration Act. Refer to RS 2010-154 relating to parties’ right of access.

As mentioned, this provision also provides legal authority for giving the applicant information concerning other persons if such information is related to the applicant’s case. The party/applicant must be notified of the fact that the information is confidential, and that the information may only be ”used” to the extent necessary to protect the party’s interests in the case”, cf. section 13b, second paragraph, first sentence, of the Public Administration Act. Breach of the duty of confidentiality may be punishable pursuant to section 13b, second paragraph, third sentence, of the act. Furthermore, limitations to parties’ right of access may, as mentioned, result in certain information not being accessible to the party, such as information concerning the security of the realm, cf. section 19, first paragraph, item 1, of the act.

Section 17-1 of the Immigration Regulations defines who is regarded as a party to an immigration case. It is the applicant in the immigration case who is regarded as a party. In cases not subject to application, only the person at whom the case is directed is regarded as a party. This means that employers, spouses and other sponsors are not regarded as parties, and that the duty of confidentiality applies towards these persons.

According to section 13a, first paragraph, item 1, of the Public Administration Act, the duty of confidentiality does not prevent information from being made known to those ”the information directly concerns”. The term ”the information directly concerns” is broader than the term ”party”. However, it is difficult to clearly define whom the information directly concerns; although, a relatively close connection to the information is required.

This means that confidential information may, in principle, be given to persons other than the applicant (party). Naturally, a sponsor would be interested in the outcome of an applicant’s/main person’s case, and it may therefore be argued that the duty of confidentiality does not prevent him or her from receiving information concerning the applicant’s/main person’s case, cf. section 13a, first paragraph, item1, of the Public Administration Act. This, however, is not regarded as a close enough connection, and the person concerned does not have the right to receive information pursuant to this provision. In line with the immigration administration’s use of the term “party”, sponsors may, as a general rule, not receive confidential information from the main person’s case. The reason for this is that the main person and the sponsor may have conflicting interests in the case, e.g. in connection with forced marriage. Still, a great deal of information may be provided to family members, etc., such as information concerning the processing of the case, to the extent the information is not covered by the duty of confidentiality.

A party has the right to call on the assistance of an agent in the case, cf. section 17-1 of the Immigration Regulations and section 12 of the Public Administration Act. An agent who is not an advocate must submit written power of attorney, refer to section 17-1 of the Immigration Regulations.

4.9.2. Identification and disclosure of information to the party

Identification
A particular practical question is what requirements should be stipulated for identifying the party. How, for example, can it be established that it is the applicant who is calling and requesting information concerning his/her case?

If the person receiving the inquiry is in doubt, and if the inquiry concerns confidential information, he/she should ask for a written inquiry or send the information to the applicant’s address.

The person receiving the inquiry must independently assess, with due regard for procedural requirements, what information may be provided. He or she must assess what kind of information is being requested, how sensitive the information is, what the person calling knows about the case, etc. Hence, security questions must be asked in order to establish that it is the applicant who is calling. Examples of such questions are: When did you apply, what kind of permit did you apply for, when were you born, marital status, etc.

In immigration cases it is not uncommon for another person to call on the applicant’s behalf. This applies to immigration cases in particular because applicants often do not speak Norwegian very well, and are also not always able to understand the answer given to them. The question is whether consent/power of attorney must be required from the applicant, or whether it is sufficient that the applicant is standing next to the person calling, or if we should take the question, but send the answer by mail. If the request concerns confidential information, written consent/power of attorney from the applicant should be requested, or he/she should be asked to send a written inquiry, or the answer should be sent to the applicant by mail. This enables us to make sure that the information does not end up in the hands of unauthorized persons.

What information may be disclosed to the party?
Some information may be disclosed in any event because it is non-confidential, such as when the case is expected to be fully processed, the fact that the answer is on its way by mail, etc. However, an assessment must be made based on the provision in section 8, first paragraph, litra f, of the Personal Data Act regarding whether the person requesting the information has a legitimate interest, and whether such interest is outweighed by the data subject’s privacy interests.

Certain information may be provided over the telephone, such as when the case is expected to be fully processed, that a reply is on its way by mail, etc. Refer to sections 4.6.1–4.6.4 concerning what information is considered confidential, and what information may be disclosed.

Moreover, reference is made to RS 2010-154 relating to parties’ right of access.

4.9.3. Power of Attorney

The party’s representative/agent will generally be an advocate or another agent acting on the applicant’s behalf. For further information on the use of power of attorney, refer to section 17-1 of the Immigration Regulations and section 12 of the Public Administration Act. If a sponsor has been empowered, through a power of attorney from the applicant, to act on the applicants behalf, he/she has full access to confidential information unless the power of attorney states otherwise. If the said person has the right to forward such information to others, this should be stated in the power of attorney.

4.9.4. The party consenting to confidential information being made accessible to others

Information may be given to others, such as a spouse in Norway, or to a journalist, if the party consents thereto, cf. section 13a, first paragraph, item 1, of the Public Administration Act. There is no legal requirement that the consent be made in writing, but it must be real, informed, express and provided in circumstances which ensure that the person concerned realizes the consequences of the consent. Even though there is no requirement that the consent be made in writing, it will often be expedient to request a written declaration to ensure compliance and to ensure that the person concerned has understood the consequences of the consent. This applies especially to consent to provide confidential information to the press. The Directorate of Immigration has prepared a declaration of consent for this purpose; see the appendix to this circular.

Information may only be provided to the extent that the consent so authorizes. If the applicant has, or has previously had, several cases for processing, it should be specified to which case the consent applies. Consenting to access is not the same as providing a power of attorney for others to act on the applicant’s behalf. For further information about power of attorney, refer to section 4.9.3.

Whether oral consent is sufficient in a specific case will depend on whether disclosure would be consistent with due regard for procedural requirements, which is a non-statutory basic principle in the public administration. Reference must be made to the kind of information to be forwarded and if the information is of a sensitive nature. Emphasis may also be placed on whether the situation resembles a power-of-attorney situation. If so, the consent should be made in writing.

Although the consent, in principle, terminates the duty of confidentiality, the administration does not have a duty do disclose the information. Still, a specific assessment should be made as to whether the information should be provided.

Particular guidelines on children
The question here is from whom consent should be required when the information concerns children.

Section 31 of the Children Act contains provisions concerning the child’s right to be heard/take part in decisions on the child’s personal situation. The child shall be heard by the parents and others in relation to decisions on the child’s personal situation, as and when the child becomes able to form its own point of view on the subject matter concerned. Pursuant to section 31 of the act, attention shall be paid to the opinion of the child, depending on the age and maturity of the child. When the child reaches the age of 7, it shall be allowed to voice its view, and when the child reaches the age of 12, the child’s opinion shall carry significant weight.

The circular issued by the Ministry of Children and Family Affairs on child welfare and duty of confidentiality, Q-24, March 2005, section 6.1.1, states:

”When the information concerns a child, consent is, as a general rule, required from the person(s) having legal custody. The legislation does not regulate when consent should be obtained from the child as well. However, according to section § 6-3 of the Child Welfare Act, children have their own rights as a party when they reach the age of 15. Hence, pursuant to the Child Welfare Act, consent from both the child and the parents will be necessary when the child reaches the age of 15. If the information concerned applies to the child only, consent from the child will, in principle, be sufficient.”

5. When may one administrative agency disclose information to another?

5.1. Right and duty to provide information in certain cases

Some administrative agencies have separate provisions for receiving and obtaining confidential information; the child welfare service being one example.

Section 6-4 of the Act relating to Child Welfare Services states that ”notwithstanding the duty of confidentiality, public authorities shall of their own initiative provide information to the municipal child welfare service when there is reason to believe that a child is being mistreated at home or is subjected to other forms of serious neglect …”. The Ministry of Children and Equality has prepared a circular (”Barnevernet og taushetsplikten, opplysningsretten and opplysningsplikten” (Child welfare and the duty of confidentiality, the right and duty to provide information), Q-24/2005).

Furthermore, a duty to provide information to for example the immigration authorities follows from section 84 of the Immigration Act. According to this section, a public authority shall, upon request, give the immigration authorities information on foreign nationals’ name and address for use in cases under the Act, notwithstanding the duty of confidentiality in section 8-8 of the Act of 13 December 1991 No. 81 concerning Social Services etc. and section 6-7 of the Act of 17 July 1992 No. 100 concerning Child Welfare Services.

Public authorities shall also, upon request, give the immigration authorities information on whether the sponsor in a case concerning a residence permit under chapter 6 of the Immigration Act has received financial support under the Social Services Act in the year preceding the provision of the information, see section 84, second paragraph, of the Immigration Act.

Upon request from the Directorate of Immigration or the Immigration Appeals Board, the police shall give information on conduct in family immigration cases and visa cases; see sections 85 and 86 of the Immigration Act and sections 17-8 and 17-9 of the Immigration Regulations.

For administrative agencies that do not have such special provisions, the Public Administration Act contains general provisions that provide a certain right to disclose and obtain confidential information.

Privacy considerations underlie the duty-of-confidentiality rules, but in certain cases other considerations will take precedence, such as the consideration for effective exploitation of resources, protection of other citizens and the consideration for basic national interests. The Public Administration Act therefore allows confidential information to be disclosed to other administrative agencies to a certain extent without specific consent from the party. The administrative agency receiving the information will be bound by a duty of confidentiality regarding such information. As previously mentioned, this is a right to provide information, not a duty.

With respect to disclosing information to the police, this depends on what part of the police is requesting the information. The part of the police that processes the immigration case is considered part of the immigration administration. With respect to disclosure to the police in the processing of criminal cases/cases under investigation, special issues arise. These are discussed further in section 5.4.

The Immigration Appeals Board is part of the immigration administration. The foreign service missions are also part of the immigration administration in their processing of immigration cases.

5.2. Disclosure to other administrative agencies – section 13b, first paragraph, item 5, of the Public Administration Act

The immigration administration may provide other administrative agencies with information concerning a ”person's connection with the agency and concerning decisions made and such information as it may be necessary to provide in order to facilitate performance of the tasks assigned to the said agency …”, cf. section 13b, first paragraph, item 5, of the Public Administration Act .

This provision applies to the forwarding of confidential information between agencies, as opposed to section 13b, first paragraph, item 3, which applies internally within the agency/service.

The definition of an administrative agency is provided in section 1 of the Public Administration Act; ”any central or local government body”. A private legal person is considered to be an administrative agency in cases where such person makes individual decisions or issues regulations”. Whether an enterprise is a central or local government body depends on the purpose, organization, responsibilities and funding of the enterprise. Examples of administrative agencies are NAV (the Norwegian Labour and Welfare Service), the County Governor, the child welfare service, the refugee office, the public population register, public schools, state church agencies, universities and public hospitals.

The rules herein only apply to disclosure to Norwegian administrative agencies. This right to exchange otherwise confidential information with Norwegian administrative agencies applies regardless of whether the information is related to a specific administrative case or not.

With respect to exchange of information with foreign administrative agencies, section 13b, second paragraph, item 2, applies; see also item 5.

The right to make exceptions to the duty of confidentiality in order to exchange information with other administrative agencies applies in three instances; see below.

5.2.1. Information concerning a person’s connection with the agency – section 13b, first paragraph, item 5, of the Public Administration Act.

This provision enables the exchange of more information concerning an applicant’s contact with the immigration authorities than we may provide to persons other than the applicant himself.

In all types of cases, information may be provided to other administrative agencies concerning the type of contact the person concerned has had with the immigration administration and the main aspects of such contact. This implies, inter alia, that information may be provided concerning the status of the processing of a case, when the person concerned applied and how far the processing of the case has progressed. Information may also be provided in cases not established based on an application, such as expulsion or revocation of a permit. Pursuant to this provision, sensitive information may also be provided, such as the fact that a person has applied for protection.

5.2.2. Concerning decisions made

Pursuant to section 13b, first paragraph, item 5, of the Public Administration Act, the immigration administration may provide other administrative agencies with information ”concerning decisions made”.

This implies that we may provide information regarding the fact that the person concerned has been granted a permit or regarding whether the person concerned has had his/her application rejected, as well as information on the type of permit granted/denied. This also applies if a person has been granted/denied Norwegian citizenship, if protection has been granted/denied and the permit was granted on the grounds of strong humanitarian considerations, or if a person has been expelled.

However, the immigration administration may not, based on this condition, provide information on the grounds for the decision; however, see section 4.6.4, last paragraph, and the section below on this.

Information may also be provided concerning whether exceptions have been made from the requirement for maintenance and whether deferred implementation of the decision has been granted, etc.

5.2.3. Information necessary to”facilitate the tasks assigned to the said agency pursuant to statute, instruction or its terms of reference”.

This alternative enables a more extensive exchange of confidential information than the preceding alternatives in section 13b, first paragraph, item 5. The immigration administration may provide information to other administrative agencies when this is necessary for the immigration administration (said agency) to perform the tasks assigned to it pursuant to the Immigration Act and instructions from the supervising ministry. The purpose of the Immigration Act is given in section 1 of the act. This exception to the duty of confidentiality applies to all types of information and all types of cases.

The forwarding of the confidential information must be ”necessary”. This requirement for necessity is not interpreted very strictly, but entails a real limitation in that a sufficiently close, factual connection must exist between the providing agency’s and the receiving agency’s activities, cf. Woxholth: Forvaltningsloven med kommentarer, 4th edition 2006, page 277.

This provision must be seen in relation to the right to use confidential information to achieve the purpose for which it was given, cf. section 13b, first paragraph, item 2, of the Public Administration Act. Altogether, this provides a relatively wide opportunity to spread information, as long as the information is given in the providing agency’s interests. For these reasons, the grounds for a decision may, for example, also be disclosed.

5.3. Formal requirements

Any inquiries from other administrative agencies concerning access to confidential information according to sections 13 ff. of the Public Administration Act should be made in writing, and not by e-mail. Only in exceptional cases may oral requests be processed, and such requests will then need to be submitted in writing subsequently. The request should state on what basis access is requested (consent, power of attorney or the provisions of the Public Administration Act). It should also state into what information/documents access is requested, and for what the person requesting access will use the information, to enable the administration to remove irrelevant information. Access shall not be granted into more confidential information than needed.

If, for example, access is granted into an asylum interview, it is not a given that the entire interview will be disclosed, and it must be assessed whether parts of the document should be censored.

5.4. Disclosure of information by the immigration administration to the police/prosecuting authorities – criminal cases

With respect to disclosure of information to the police, it is important to distinguish between immigration cases and criminal cases. As mentioned, both the Directorate of Immigration and the police will be part of the immigration administration when it comes to the processing of immigration cases. The question here is if, and if so to what extent, information may be disclosed by the immigration administration to the police when the police are processing criminal cases/carrying out investigations, cf. section 55 of the Criminal Procedure Act.

The police’s responsibilities may be divided into the following categories:

1. The police as an administrative authority
2. The police as an agency for criminal case processing
3. Law enforcing and preventive agency
4. Responsibility for organizing the rescue service

In the following, the police as an agency for criminal case processing is discussed.

The immigration administration may also disclose confidential information to the police/prosecuting authorities if the information is used for the purposes for which it was obtained (section 13b, first paragraph, item 2, of the Public Administration Act), or if disclosing such information facilitates the immigration administration’s tasks (section 13b, first paragraph, item 5, of the Public Administration Act).

From section 24, first paragraph, of the Police Act, it emerges that the police/prosecuting authorities are bound by a duty of confidentiality regarding the information that they receive pursuant to sections 61a–61e of the Criminal Procedure Act.

Moreover, the right to provide information to the police/prosecuting authorities is regulated in more detail in section 13b, first paragraph, item 6, of the Public Administration Act ; see the section below.

5.4.1. The right to report and provide information to the police concerning violations of the law

Section 13b, first paragraph, item 6, of the Public Administration Act enables administrative agencies to disclose confidential information by reporting or providing information concerning violations of the law to the prosecuting authorities or the supervising authority concerned.

Disclosure of information may be relevant in two instances:

  • Of the agency’s own motion when information of significance to the police/prosecuting authorities is brought to its attention
  • Upon request from the prosecuting authorities

Section 13b, first paragraph, item 6, of the Public Administration Act applies only in connection with ”reporting or providing information concerning violations of the law”, i.e. offences which have already taken place.

”Violations of the law” here refers to violation of rules provided by or pursuant to law. It is not a condition that the offence be subject to penal sanction, but in terms of disclosure to the prosecuting authorities it is highly practical. It is not a condition that the offence be documented/proven – a suspicion is enough. This applies regardless of whether the offence has been committed in Norway, in the home country or in a third country.

This right to provide confidential information concerning committed offences is limited to two instances. Firstly, when prosecution of the offence fall naturally within the scope of the functions of the said agency and, secondly, when it is desirable in the public interest.

A. The offence falls ”naturally within the scope of the functions of the immigration administration”
The immigration administration may provide the police/prosecuting authorities with information concerning violations of the Immigration Act or the Nationality Act. Section 108 of the Immigration Act is an important basis for assessing in what instances the immigration administration may provide information concerning violations of law. Based on this provision, illegal residency or work and human smuggling may be reported, and the immigration administration may provide confidential information related to such cases to the police as prosecuting authorities – of its own motion or upon request from the police.

Information may also be provided concerning forgery of travel documents and threats against fundamental national interests, because these are offences which the immigration administration is also responsible for preventing. For both the police and the immigration authorities to be able to perform its functions, the exchange of information is necessary in many contexts.

Offences which do not naturally fall within the scope of the functions of the immigration administration are ordinary criminal offences of which the immigration administration obtains knowledge. For further guidelines on ordinary crime, see ”public interests” below.

Information may also be provided to the police notwithstanding the duty of confidentiality when the offence is directed at the immigration administration itself, e.g. fraud, vandalism, etc.

B. When it is desirable in the ”public interest”
The immigration administration may provide information to the police when it is desirable in the ”public interest”. The public interest is not a consideration with all offences. Pursuant to Proposition no 3 to the Odelsting(1976–77) relating to the Act to amend the Act of 10 February 1967 relating to the procedure in cases concerning the public administration (rules regarding duty of confidentiality, etc.), page 35, this will be particularly relevant in connection with aggravated offences. In connection with aggravated offences, prosecution is very much in the public interest, and in such cases the police may be granted access to information in the immigration case notwithstanding the duty of confidentiality.

In assessing whether an offence is aggravated, the maximum penalty may provide an indication, but it will not be the only deciding factor. In a statement (62/78E) from the Legislation Department of the Ministry of Justice on sexual abuse (sections 195 and 196 of the Penal Code) subject to a maximum penalty of 5 and 10 years, the Legislation Department stated that the person concerned had the right to report ”more aggravated violations of the penal provision discussed herein”. This decision does not determine in general that a maximum penalty of minimum 5 years is required, but a 5-year maximum penalty will normally be sufficient. Examples of offences where confidential information may be provided to the police are murder, sexual offences, aggravated drug-related crime, organized human smuggling, war crimes and violations of the penal provision relating to national security.

Maximum penalty will not be the only deciding factor for whether or not confidential information may be exchanged pursuant to section 13b, first paragraph, item 6, of the Public Administration Act. It must be specifically assessed whether it is in the public interest for the immigration authorities to provide the information to the police/prosecuting authorities. Maximum penalty may play a role. In addition to maximum penalty, the general conception of justice may be emphasized in this assessment, e.g. if an offence has provoked strong reactions in the public. In its general interpretation, this concept also applies to acts that provoke indignation/are offensive in people’s general conception of justice. It could for instance be that a person has committed several offences which, when combined, suggest that it is in the public interest to exchange confidential information.

This provision only applies to offences that have been committed, not to information indicating that the person concerned may potentially commit a punishable act in the future. In such instances, there are only two opportunities for communicating confidential information. If the punishable activity is related to the immigration field, section 13b, first paragraph, item 5, the Public Administration Act provides legal authority for forwarding such information. This is a matter of disclosing information given to facilitate performance of the immigration administration’s own tasks, such as forgery of travel documents. For further guidelines on this, refer to section 5.4.

The immigration administration has a duty to provide information to the police when it possesses ”reliable information” concerning serious felonies that are ”impending or have been committed”, cf. section 139 of the Penal Code. The felonies to which this applies are stated in section 139 of the Penal Code. For example, it will apply to felonies against fundamental national interests, murder, sexual abuse and grievous bodily harm. There must be a concrete indication that the person concerned will commit such a serious criminal act; it is not sufficient that the applicant is mentally unstable or has been involved in acts of violence in his/her home country.

Disclosure pursuant to section 13b, first paragraph, item 6, of the Public Administration Act also applies to disclosure of information to supervising authorities other than the police. Supervising authorities could be the tax authorities and the Norwegian Labour Inspection Authority.

5.4.2. What documents and information may be disclosed?

Even though information concerning an offence may be provided to the police because this is desirable in the public interest, or because prosecution of the offence falls naturally within the scope of the functions assigned to the immigration administration, this does not necessarily apply to all the information or documents in the case.

According to page 154 of Proposition no. 3 to the Odelsting (1976–77) relating to the Act to amend the Act of 10 February 1967 relating to the procedure in cases concerning the public administration (rules regarding duty of confidentiality, etc.), the administrative agency may not routinely send all the documents in the case to the prosecuting authorities. We need to extract information and documents conducive to clarifying the question of guilt and the need for prosecution.

The immigration administration’s assessment of what information is relevant to the criminal case should, however, not be too narrow, because the police themselves will be best suited to assess what is relevant to the criminal case. The police will not know what documents exist in the case, and will therefore not be able to request specific documents. Information concerning a person’s identity and background may, as a general rule, be disclosed. Personal information that obviously does not concern the criminal case should not be disclosed. For example, documents concerning other persons, such as a sponsor or an employer, may, as a general rule, not be disclosed to the police, because this does not concern the criminal case in question. In cases concerning human smuggling, however, it is conceivable that such documents could also be forwarded to the police. Therefore, it is important that the police observe the formal requirements outlined below to enable the immigration administration to assess what documents are relevant.

A particular question is if the immigration administration may disclose photos, film and audio recordings of persons to the police for use in the investigation of an offence. The principle is, as previously mentioned, that photos, film and audio recordings are identifying information covered by the duty of confidentiality. The police will often know the identity of the person concerned and be aware of the person’s relationship with the immigration administration. In serious criminal cases and in connection with crime that falls naturally within the functions assigned to the immigration administration, the immigration administration will be entitled to provide the police with personal information, cf. section 13b, first paragraph, item 6 and item 5, of the Public Administration Act, see section 5.3. In practice, the immigration administration will therefore, in most instances where the police request for example a photo of a person, be entitled to disclose this to the police. This also applies if the person concerned is an asylum seeker.

5.4.3. Formal requirements for the police’s request for access

The general rule is that an inquiry regarding access into the immigration administration’s documents for use in a criminal case should be made in writing, and not by e-mail. Only in exceptional cases should an oral inquiry be granted, in which case it must subsequently be made in writing.

To be able to assess whether confidential information may be provided to the police in a certain case, the person requesting access should state the type of offence of which the foreign national is suspected and what penal provisions apply. At the same time, grounds should also be given as to why the police would like to receive the information, to what information and/or documents access is needed.

Concerning questions regarding the right to forward the documents to other countries’ authorities, see below.

6. Disclosure of documents to other countries’ authorities

In principle, the provisions of the Public Administration Act concerning exceptions to the duty of confidentiality allow the forwarding of confidential information to Norwegian police and Norwegian administrative agencies. However, if this is necessary to process the case in question, the administration will have the right to do so, cf. section 13b, first paragraph, item 2, of the Public Administration Act.

An example of this is section 98, second paragraph, of the Immigration Act, which deals with the right to provide the countries participating in cooperation under the Schengen agreement and the Dublin agreement with information, notwithstanding the duty of confidentiality, when the information is to be used for processing cases concerning border control, visas, rejection, expulsion, protection under the rules in chapter 4 of the Immigration Act, protection against refoulement pursuant to chapter 9 or residence permits. It follows from the last sentence of section 98 of the act that this does not apply to permits to stay pending the processing of applications for a residence permit.

Moreover, in cases concerning protection under the rules in chapter 4, a variety of information may be provided to other countries’ authorities based on consent for such transmission, see sections 17–33 of the Immigration Regulations. This only applies to transmission to the countries respecting the Geneva Convention and the European Human Rights Convention.

In effectuating the decision, the police may need to disclose information to the home country’s authorities to implement removal of the person concerned if he/she does not leave the country voluntarily. This is permitted, because confidential information may be used for the purpose for which it was provided, including implementation of the decision, follow-up and control, cf. section 13b, first paragraph, item 2, of the Public Administration Act. This is also consistent with section 83, second paragraph, of the Immigration Act, which states that a foreign national may not be required to assist in clarifying his or her identity in a manner which comes into conflict with a need for protection.

When personal information is transferred electronically to other countries, the conditions in sections 29 and 30 of the Personal Data Act must be met.

7. The police (the prosecuting authorities) intending to forward the information to foreign authorities

In certain cases the police state that the documents they receive from the immigration administration will be forwarded to cooperating services in other countries. This poses the question of how this will affect the question of whether the immigration administration may provide the information to the police.

The principle is that the immigration administration may provide the police with confidential information when there is legal authority for it, see more on this in section 4.3. The police are bound by a duty of confidentiality with respect to the information they receive from the immigration administration in pursuance of the provisions of the Criminal Procedure Act. The police must independently assess whether they have legal authority for forwarding the information to foreign authorities where relevant. Given the police’s need to cooperate with prosecuting authorities in other countries, especially with respect to crime across borders, such as human trafficking, the immigration administration should be forthcoming when Norwegian police request information. In some cases this will also be in the immigration administration’s interest, because the outcome of the criminal case could have a bearing on the immigration case, and for example if the identity of the person concerned has not been clarified.

The fact that the immigration administration has the right to provide the police with confidential information does not mean that there is a duty to provide this information. The immigration administration may therefore refuse to disclose such information if this seems disconcerting based on the intended use of the information. In cases where information is to be disclosed to countries that have generally low respect for human rights, there may be reason to refuse such disclosure, or to inform the police of our reasons for not disclosing the information, e.g. if the person about whom information may be disclosed could risk the death penalty or torture during detention. In such cases the immigration administration should be cautious with contributing to the provision of information to the police in these countries. Therefore, a specific assessment must be made in each case where this is relevant.

As mentioned in section 5, the declaration of consent which asylum seekers sign, to provide their consent to the immigration administration giving information to other countries’ authorities, does not apply to disclosure to the home country of the person concerned. A particular question is whether the police may disclose documents from the immigration case to the home country’s authorities in connection with a criminal case, e.g. disclosure of documents to the home country in war crime cases.

The declaration of consent only limits disclosure by the immigration administration to the home country’s authorities in the administrative case. If the police as prosecuting authority have been provided with the documents, cf. section 13, second paragraph, item 5 and item 6, of the Public Administration Act, they have a duty of confidentiality regarding that information, and must independently assess whether they have a right of disclosure in accordance with rules and regulations by which they are bound (the Police Act, the Criminal Procedure Act, etc.).

8. Particular guidelines on disclosure of information to the media

The principle is that all information related to individual cases must be processed with caution. This also applies to information not subject to the duty of confidentiality.

The assessment of what information is confidential is described in the discussions earlier in this circular. The same assessments apply in relation to disclosure of personal information to the media.

In relation to the media, occasional situations may arise requiring the administration to address criticism or erroneous information. On the other hand, individuals have a need for certain information to not end up in the hands of unauthorized persons.

Confidential information may be given to journalists and others with the media if the party consents thereto, cf. section 13a, first paragraph, item 1, of the Public Administration Act, see section 4.9.3. The journalist must be referred to contacting the applicant or the applicant’s representatives, i.e. an advocate. The immigration administration should, upon request for disclosure of information to the media, require written consent from the party (the applicant). The Directorate of Immigration has developed a consent form which gives the journalist the same right of access as the applicant. The consent form is available on the directorate’s website.

The immigration administration should obtain such consent itself, or verify that the consent obtained by the media has been obtained correctly. If the applicant, possibly via an advocate/guardian, consents to the immigration administration making a statement concerning the case, the immigration administration must specifically assess whether it is appropriate to make a statement. For example, this may be particularly relevant if the person concerned is under age, and the consent was given by the parents.

If the applicant has given the journalist a copy of the decision, the immigration authorities should be able to refer to the content of the decision and otherwise provide general comments on the rules and regulations without further consent from the person whom the case concerns.

The declaration of consent must be signed by the applicant himself/herself or the applicant’s advocate. If a minor is concerned, the person having parental responsibility/the guardian needs to sign. In situations involving children, there is reason to exercise caution. Given the nature of the information, and the age/maturity of the child, it may be advisable for the child to sign himself/herself. See section 4.9.4 above on the child’s consent.

Consent from a sponsor or spokesperson in Norway is not sufficient, unless a power of attorney has been obtained, which enables the person concerned to act on behalf of the applicant. A specific assessment must be made concerning whether the power of attorney also provides the right to consent to disclosure of confidential information. It must emerge that the consent also provides the right to make information known to the public. The Directorate’s declaration of consent contains such information. The journalist has a duty to ensure that the applicant is aware of this, and that he/she has understood the implications of his/her consent.

Pursuant to section 13a, first paragraph, item 3, of the Public Administration Act, the duty of confidentiality shall not prevent information from being used when it is, for example, generally known or generally accessible elsewhere. The fact that a person approaches the media on his/her own initiative and provides sensitive information, does not, in principle, terminate the immigration administration’s duty of confidentiality. The administration should also be hesitant in disclosing such information if the information is of a sensitive character. If the applicant himself/herself is the source of the information being known, there is less reason to hold it back in e.g. a public debate. If the information has become known through sources other than the applicant, there is greater reason to be cautious. General information, such as information concerning application procedures, etc., may always be given, and this may in certain cases be sufficient.

A particular question is to what extent the immigration administration may approach the media to confirm information which the applicant himself/herself has stated in public. Unless the applicant himself/herself encourages, or clearly states that he/she will not be opposed to, such confirmation of information by the immigration administration, the immigration administration should be very cautious in interpreting the applicant’s statements as consent to confirm confidential information.

If the applicant himself/herself publicly discloses erroneous factual information concerning his/her case, the question is whether the immigration administration may correct this in the media. If the applicant does not want the immigration administration to make a statement, corrective confidential information may, in principle, not be provided. The duty of confidentiality is not terminated by the party himself/herself providing erroneous information to the media. A possible exception is if sensitive information is not involved, or if the immigration administration refrains from providing new, detailed information not brought forth, but merely states that the information posted in the media is incorrect or misleading.

 

Gry Aalde
Director

Contact: Analysis and Development Department

Latest changes
  • Endret: RS 2010-149 Taushetsplikt om personlige opplysninger i utlendingssaker – forvaltningsloven §§ 13 og 13 b (10/31/2018)

    Rundskrivet er oppdatert med henvisninger til ny straffelov og ny personopplysningslov.

  • Endret: RS 2010-149 Taushetsplikt om personlige opplysninger i utlendingssaker – forvaltningsloven §§13 og 13 b (7/1/2016)

    Fra 1. juni 2015 ble utlendingsloven § 84b endret, slik at utlendingsmyndighetene fikk adgang til å innhente taushetsbelagte opplysninger om beboere på mottak. Denne bestemmelsen omtales nå i punkt 4.2. Videre er det foretatt noen endringer i rundskrivets struktur og språk.

Norwegian Directorate
of Immigration
Utlendingsdirektoratet
P.O. box 2098 Vika
NO-0125 Oslo
Norway

Editor in Chief: Stephan Mo