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A municipality's services must safeguard fundamental rights

Deputy-Ombudsman  adopts stance on practices at indoor swimming baths in three municipalities

Deputy Parliamentary Ombudsman Maija Sakslin has issued three decisions in which she assesses the legality of practices followed by three municipalities at indoor swimming baths and outdoor swimming pools. In Kauhajoki a complainant had been banned from the indoor swimming baths, in Pori swimmers who had paid a reduced admission fee had to wear a red bracelet and in Helsinki photography had been prohibited.

Ban on using indoor swimming baths was unlawful

The staff at the indoor swimming baths in Kauhajoki had decided in February 2011 that it would not sell an admission ticket for the baths to a person whose utterances relating to religion were, in the staff's perception, causing a disturbance.

Deputy-Ombudsman Sakslin took the view in her decision that the use of the swimming baths had been restricted on the basis of activities that are included in the scope of the freedom of religion and conscience and freedom of speech that are safeguarded in the Constitution. The use of a municipal physical exercise service can be limited only exceptionally. Since the refusal of entry was associated with exercise of a fundamental right, the municipality had an accentuated obligation to demonstrate that there was an acceptable ground for the ban.

The procedure followed did not meet the demands of the principles of protection under the law and good administration that are safeguarded in the Constitution, because inter alia the person in question was not heard in the matter, the matter had not been appropriately examined in other respects, either, and an appealable decision imposing the ban had not been issued. The municipality had not demonstrated that it would have had factual and acceptable grounds on which to forbid the complainant the use of the swimming baths. 

Since the procedure followed was clearly incorrect, Deputy-Ombudsman has recommended to the City Board that it consider the possibility of making recompense in some way or other to the complainant for the sense of injustice prompted by the unlawful action and the wrong experienced.

Bracelets violated protection of privacy

Clients using the City of Pori's indoor swimming baths were given a red bracelet if they were entitled to a reduced admission charge. The lower rate applied to children, conscripts, pensioners, the handicapped and unemployed persons who were not in receipt of pay-related per diem payments.

The reasons the City gave for this practice related to monitoring-and the goal of reducing the cost of selling tickets.

In Deputy-Ombudsman Sakslin's view, these considerations were not a lawful ground for treating baths users differently according to whether they were allowed a reduced rate on social, health or otherwise person-related grounds. 
 
The way in which the City of Pori acted was likewise not in accordance with the requirements of the Personal Data Act with respect to handling personal data nor in compliance with the secrecy provisions of the Act on the Openness of Government Activities. For example, the latter Act requires the fact a person is unemployed and health-related information to be kept secret. However, the red bracelet revealed this information for all the time that a person was in the swimming baths.

The procedure likewise failed to meet the requirements of equal treatment, the principle of proportionality as well as appropriateness of service that are included in the principles of good administration that are enshrined in the Administrative Procedure Act.  

Ban on photography can be indicative only

The third decision concerned complaints in which the City of Helsinki was criticised for restricting photography in indoor swimming baths and outdoor swimming pools.

Deputy-Ombudsman Sakslin takes the view that photographing private persons at swimming baths is not a right that belongs to the core area of freedom of speech. On the other hand, clients of swimming baths are entitled to protection of privacy. In addition, photographing in changing rooms, showers and saunas at swimming baths is a punishable offence under the illicit surveillance provisions of the Penal Code. In some situations, intrusive photography can be regarded as a breach of the peace. 

According to the explanation provided by the City of Helsinki, the ban on photography at indoor swimming baths and outdoor swimming pools is not absolute; parents have been given permission to photograph their children and friends each other. In such cases, photographing is done on a basis of consent and there is no need to protect privacy.

In the Deputy-Ombudsman's assessment, the City of Helsinki has had grounds founded in law for issuing guidelines on photography at indoor swimming baths and outdoor swimming pools with the aim of, on the one hand, ensuring protection of privacy and, on the other, preventing breaches of the peace and illicit surveillance. The ban can also be justified because, for example, it protects vulnerable groups of clients, such as children. It is, however, permitted to photograph private persons if they give their express consent for this.

The Deputy-Ombudsman emphasises that in this case she evaluated the municipality's ban on photography at indoor swimming baths and outdoor swimming pools only from the perspectives of protecting the privacy of private persons and, on the other hand, the right to photograph that is included in private persons' freedom of speech. Thus she did not in her decision adopt a stance on protection of the privacy of public persons nor on the freedom of expression that is included in the media?s right to mediate information.

A municipality must safeguard implementation of fundamental rights

The provision of services at swimming baths is a voluntary task that a municipality can assume on the basis of its powers of local government. When it arranges services, a municipality must safeguard implementation of fundamental rights and human rights.

The Deputy-Ombudsman points out that the rules and regulations in effect at indoor swimming baths and outdoor swimming pools are based only on the municipality's own decisions. As the custodian or owner of the facility, the municipality can give clients guidelines and recommendations. However, they are not legally binding unless they are based on a power enshrined in law.

Additional info will be provided by Senior Legal Adviser Ulla-Maija Lindström, tel. +358 (0)9 432 3355.