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Court cases

In three instances access to the SIC archive was put to the courts of Iceland. The first stage is the Reykjavik district court.The first case, mentioned before, was when the parliamentary prosecutor got a court order to access data that the NAI had denied access to. In this case the NAI did not appeal the verdict. The other cases were appealed to the Supreme Court of Iceland. In both cases, the Supreme Court ruled in the favour of the NAI, that is denials for certain information were confirmed. It is of interest to note that both cases were related to lawsuits where banks, former bank directors and insurance companies were fighting against each other. The defendants wanted information from the SIC archive to use in their defence.

In the first case to be appealed the Supreme Court confirmed (3 June 2014) the verdict of the Reykjavik district court (verdict No. 329/2014). The district court had decided that the NAI had rightfully denied the SPB bank (SPB hf.) access to eight statements from individuals. The Supreme Court approved this verdict; it would have been unlawful of the NAI to deliver the statements. It was confirmed that articles on confidentiality in the Act No. 36/2001 on the Central Bank of Iceland override the Articles on access of the Information Act?8

The second case was when the NAI appealed a verdict, from 4 January 2017, of the Reykjavik district court. The district court had decided that the NAI was to give access to four specified documents to a group of 25 entities, among them some big international insurance companies. The group of 25 were defending themselves in a case the new Landsbanki ehf. Bank, had filed against them to get compensation payments because of how the old (fallen) bank had managed its money in October 2008.The Supreme Court, on 13 March 2017, overturned the verdict of the district court in favour of the NAI, which then did not have to deliver the documents in question (verdict No. 64/2017).The Supreme Court decided that the employees of NAI could not (based on the Act on private affairs Act No. 91/1991) be called to court and to bear witness on the documents in question since they had no experience of them when they came into being. Also, the documents could be seen as working documents (based on the Information Act No. 140/2012).

It was a great relief for the employees of the NAI to be acquitted in this case by the highest court. This case shows the interests at hand and who the NAI were up against.

Conclusions

It is safe to say receiving the archive from the Special Investigation Commission (SIC) in 2010 was a difficult task for the National Archives of Iceland (NAI). Without a doubt, this archive is the most complicated the NAI has ever received, both in terms of arranging the records and handling questions of access. The documents are recent and contain extremely sensitive information, such as the finances of individuals and companies. Also, in this SIC investigation, confidentiality terms or clauses did not apply. Therefore, the SIC archive contains a lot of confidential information. Because of this, the National Archives have had, through a complex and costly process, to evaluate whether to grant or deny access, always bearing in mind the rights of the inquirer and the rights of the person or entity the information is about, and considering all relevant law. The NAI was in an unprecedented situation as a keeper of this unique archive.

The SIC archive has been in considerable demand by those who were involved in the struggle people and businesses had in resolving the various situations, differences and accusations in the aftermath of the crisis in 2008. The parliamentary prosecutor, other investigative commissions of the Icelandic Parliament and a resolution committee of one of the fallen banks have all got access, in one case after a court order. No other single body has asked more often to access the SIC archive than the Governmental Information Committee (GIC),and always got the access. It is safe to say that the insurance companies, mostly international, have, as defendants in lawsuits, fought hardest for access to the SIC archive both by appealing the denials of the NAI to the GIC and the courts. A relief for the employees of the NAI, confirming the quality of their work, was the positive outcome in the verdicts of the GIC and the Supreme Court of Iceland.

In all cases when insurance companies have requested access, the NAI has denied access and when denials have been appealed to the GIC the denials have overwhelmingly been confirmed. In the two instances that the Supreme Court has given verdict on access to the SIC archive, it has confirmed the decisions of the NAI. In other words, the NAI managed these cases rightfully (by the law).

Researchers have not yet made a real attempt to get access and use the data for research purposes. The general public has access to information about themselves but limited or no access to other data. Private persons who have gained access are mostly individuals who can access information concerning themselves.

The decade that has passed since the SIC archive came into the custody of the National Archives of Iceland has been challenging and, in many respects, difficult. However, for the employees working with the archive and for the National Archives on the whole, it has been a satisfying time with many practical experiences gained. It has been reassuring and rewarding that almost all the decisions made regarding access, that have been contested, have been confirmed by the GIC and the Supreme Court.

This chapter demonstrates some of the issues that can arise with contemporary or near contemporary records. The Special Investigations Commissions archive is a remarkable archive, and because it is very recent and with highly sensitive material it will, according to current law, continue to be rather silent for the next 70 years or so.

 
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