Number of litigations

We have run around 500 litigations so far concerning the Right to Know. They were started by ourselves or brought by citizens. Thanks to them we enforce the law or identify problems. They also help us to shape understanding and awareness of the openness.

Since we have such a high number of cases, we decided to describe the successful ones that have the strongest impact. We are also preparing selection of the challenges.

Open nature of audits (judgment of the Constitutional Court of 9 April 2015, K 14/13)

Description of the case:
In the Act on Public Finance of 27 August 2009, in Article 284 (2), all documents from audits conducted in public institutions, except for the audit plans and the reports on their execution, have been excluded from the definition of public information.

On 9 April 2015, as a result of the petition of the Ombudsman to the Constitutional Court, it was ruled that this provision was incompliant with Article 61 of the Constitution of the Republic of Poland.

Significance of the case
This case is important due to the fact it eliminated the problem which decreased openness of public finance and reduced opportunities for civic oversight of public institutions’ activities.

Another important achievement is making it impossible to arbitrarily exclude selected information from the constitutional definition of public information using an ordinary Act of Parliament.

Disclosure of data concerning names of contractors of public institutions (Judgment of the Supreme Court of 8 November 2012, I CSK 190/12)

Description of the case:
The case was initiated by a Warsaw city councillor, Jarosław Krajewski. He requested an access to several contracts signed by Mayors’ officials . The city hall provided the contracts but, making the personal data anonymous, also removed names of contractors.

The case for the disclosure of these names continued in civil courts (until the end of 2011, cases concerning the restriction of access to information due to the protection of privacy were within the jurisdiction of those courts, on condition that they commenced before the change of the Act). At the end of 2012, the Supreme Court ruled that the information about names constituted a key element important for the purpose of civic oversight.

Significance of the case
The case allowed realistic civic oversight. In the case of contracts concluded by public institutions, the set of information composed of the surname, amount and task enables the user to prevent abuse.

Additionally, the Warsaw City Hall, as a result of a defeat, published the list of all agreements concluded on its page. This practice has become an inspiration to the bottom-up movement with regard to the publication of registers of agreements in the local communes (lowest administrative unites where most decisions concerning local residents are taken) or other public institutions.

A statutory regulation concerning compulsory publication of records of contracts has been announced in 2016. The basis for this regulation is both the judgment of the Supreme Court as well as judicature of administrative courts and awakened social activity around this issue.

Right to fair trial in cases concerning access to public information (Decision of the pane of Seven Judges of the Supreme Administrative Court of 21 March 2016, I OPS 3/15)

Description of the case:
The panel of three judges hearing one of the cases in the Supreme Administrative Court addressed a question to the panel of seven judges. The question concerned the possibility of refraining from hearing cases which are “obviously and glaringly trivial”.

The case which constituted the basis for the question concerned the charging of a fee of 42 gr (cents) for the information provided. Courts admitted that the citizen was right when she negated the legal basis for the charging of the fee. At the same time however they supported the stance of the authority providing the information, despite the fact that the requested institution considered the request on the basis of an incorrect Act, the information was not published in the Public Information Bulletin  (it should have been done), and applied the automatism of charging the fee despite the fact that the established line of judicature stated that such approach was unacceptable.

The Ombudsman, the General Prosecutor’s office and the Court Watch Polska Foundation joined the case. The panel of seven judges in the Supreme Administrative Court ruled that it is not competent to issue a resolution, and the question – for legal reasons – should not have been addressed to it at all.

Significance of the case
The adoption of the resolution would have been a threat to the right to fair trial in protection of disclosure. It would be additionally another step towards the introduction of methods enabling the administration to avoid carrying out the law. The terms “internal document” or “technical information” unknown in the Act on Access to Public Information and in the Constitution are already appearing in the judicature. The introduction of another: “an obviously and glaringly trivial case” was prevented.

Declaring an Article of the Act on Access to Public information, introduced in 2011 in a manner incompliant with the rules of legislation, unconstitutional (judgment of the Constitutional Court of 18 April 2012, K 33/11)

Description of the case:
In 2011, during the proceeding on amendments to the Act on Access to Public Information, the Government proposed a regulation restricting the possibility of obtaining information about international negotiations. The regulation was imprecise and allowed an arbitrary reduction of the extensive set of undefined information. It was rejected in the Sejm, however in the Senate, at the last session before the elections, one of the Senators (Marek Rocki) submitted an amendment with the wording similar to that rejected earlier in the lower chamber of the Parliament. The Act returned to the Sejm which voted in favour of the adoption of the amendment, despite voices claiming that this procedure was wrong.

President Bronisław Komorowski submitted the case of the procedure of adoption of the amendment to the Constitutional Court. The Court deemed the regulation unconstitutional due to the method of its adoption.

Significance of the case
The imprecise nature of the regulation allowed an unspecified amount of information to be withheld from disclosure during an indefinite period. This could potentially significantly reduce standards of openness. Additionally, this imprecise restriction was introduced into an Act which specified how to disclose information and it was the only such provision in that Act.

Openness of political parties’ activity (Judgment of the Supreme Administrative Court of 18 December 2014, I OSK 611/14)

Description of the case:
In 2013, the Citizens Network Watchdog Polska sent requests to all parties represented in the Parliament at the time (PO, PiS, SLD, PSL and TR) asking them to provide access to agreements for conducting public opinion polls and results of those polls. Each of the parties mentioned also received another enquiry in which the organisation asked them to send invoices paid for by the given party during the first two months of 2013.
None of the parties provided the information, in most cases claiming that they did not constitute public information. The Citizens Network Watchdog Polska took all the parties to court, all cases were won and information was disclosed. The most important win was the first one, after which the judicature went in the same direction.

Significance of the case
The case is important for the civic oversight. Regardless of the fact that parties are monitored by the State Electoral Commission, in many cases only public opinion may influence political parties. This is admitted by the State Electoral Commission itself (e.g. during the conference on financing of electoral campaigns organised by the Institute of Public Affairs on 9 March 2016). The transparency of financing and expenditures of parties constitutes the basis for preventing misuse, clientelism and encouraging parties to conduct true policy based on facts and checked information.

The case also has an educational dimension, it contributed to changing the attitude of political parties in the new term of the Parliament. At the request for invoices, Watchdog Poland managed to receive a response from some of the parties before the lawsuit, and Nowoczesna (a party) created a Public Information Bulletin website at which it publishes its payments.

Anti-corruption shield (Judgment of the Supreme Administrative Court of 17 June 2011, I OSK 491/11)

Description of the case:
Organisations which were members of the Anti-Corruption Coalition of Non-Governmental Organisations (Stefan Batory Foundation, Helsinki Foundation of Human Rights, Citizens Network Watchdog Polska, Civic Education Centre and others) submitted a request for information concerning the special Government programme referred to as the Anti-Corruption Shield, which was mentioned by Prime Minister Donald Tusk when he accounted for the first 500 days of the Government’s work in 2008. It turned out that a clause was affixed to this information because it was mentioned during the meeting of the College of Special Services. Therefore, the Coalition requested information concerning the order given by the Prime Minister, believing that it could be stated on this basis what the nature of the Anti-Corruption Shield was. They managed to obtain the information only after three years of efforts, in 2011. It turned out that the programme referred to as the Anti-Corruption Shield was based exclusively on the conversation between heads of services.

Significance of the case
This case showed that politicians must take into account that they will be held accountable for their declarations. What was grandiloquently referred to as the Anti-Corruption Shield and what the Coalition was fighting out in court for three years turned out to be a much smaller undertaking than declared. Which is more, under the Shield a list of tenders for special monitoring was to be determined. As it turned out, some of the tenders which were supposed to be covered by the programme, then went to become the reason behind corruption scandals. Although there were interpretations that the perpetrators were discovered thanks to nothing else but the Shield.

Openness of the legislative process, i.e. about the Bill on the Constitutional Court (judgment of the Supreme Administrative Court of 10 January 2014, I OSK 2213/13)

Description of the case:
At the beginning of 2013, you could hear that judges of the Constitutional Court prepared a new Bill regulating the activity of the Court (Act on the Constitutional Court) and submitted it to the President of the Republic of Poland, requesting that the legislative initiative was taken into consideration (i.e. putting this Bill for discussion by the Parliament). The Citizens Network Watchdog Polska submitted a request to the Constitutional Court for the Bill to be disclosed. The Chief Justice of the Constitutional Court took the position that the Bill constituted the mythical “internal document” which – according to the Chief Justice – did not constitute public information, so we had no right to study its contents. The category of “internal document” does not exist neither in the Constitution nor in Act on Access to Public Information. It was created by the jurisprudence and is decided on the case to case basis which causes uncertainty for citizens and discretionary decisions by institutions that often wait to court decision before disclosure.

The court of first instance shared the view of the Chief Justice of the Constitutional Court (judgment of the Voivodship Administrative Court in Warsaw of 7 June 2013, II SAB/Wa 147/13), however the Supreme Administrative Court (judgment of the Supreme Administrative Court of 10 January 2014, I OSK 2213/13) admitted that the Watchdog Poland was right and obliged the Chief Justice of the Constitutional Court to fulfil the request.

Which is important, we also turned to the Chancellery of the President of the Republic of Poland requesting that they send us the Bill they received from the Court. The Chancellery provided us with the information. It turned out then that contrary to the claims of the Chief Justice of the Constitutional Court the judges did not prepare “conceptual reflections, proposals” or “study works concerning amendments to the Act”, but a fully edited Bill. It was submitted to the Parliament in a similar form.

Significance of the case:
We reminded the public that openness of the legislative process is a standard in a democratic state under the rule of law. It is not restricted solely to the work of the bodies which have been established to create law (Sejm, Senate, President of the Republic of Poland, Council of Ministers, etc.), but also the openness of activity of those public entities which actually prepare the new law. In this case this is of significant importance because – as it turned out – some controversial provisions of the new law prepared by judges of the Constitutional Court were judged… by the Constitutional Court itself.

How not to conduct consultations with residents (judgment of the Supreme Administrative Court of 5 November 2015, II OSK 518/14)

Description of the case:
In Stepnica – a small commune in the Western Pomeranian Voivodship – a decision was made to change the status from a rural to urban. The law requires in such situation social consultations before the relevant petition is sent to central authorities. As it turned out, the consultations consisted in officials walking through Stepnica door to door and collecting opinions of its inhabitants as to the change the status of their commune. In order to take part in social consultations, the resident had to sign a personalised list on which it was recorded whether they took part in the vote or whether they refused to accept the ballot card. On the ballot card, besides the indication of their position (for, against, abstained), they placed… their first name and surname and signature. Thus, the authorities collected information on how individual residents voted.

Maria Szczeblewska – a resident of Stepnica – did not accept such situation and she challenged the method of conducting the consultations (in which eventually she could not take part). There was a reason – because of Stepnica becoming a town, the agri-tourism business she operated could not benefit from preferential tax solutions. The financial loss became burdensome for her.
The court of first instance ruled in her favour (judgment of the Voivodship Administrative Court in Szczecin of 31 October 2013, II SA/Sz 628/13), that the resolution concerning consultations with residents had been issued in violation of law. However, the court did not refer to the essence of the case, it satisfied itself with finding formal faults with the resolution. The court did not refer to whether consultations with residents may be conducted at all using the method adopted in Stepnica. Result – won (formally), but lost (as regards the content).

The Supreme Administrative court, in its judgment of 5 November 2015, II OSK 518/14, although it dismissed the cassation appeal of Stepnica’s resident (for formal reasons), admitted that she was right as to the form of the consultation. It indicated that the consultations conducted in Stepnica infringe a number of provisions of the Constitution of the Republic of Poland. Such consultations infringe the information autonomy of an entity, lead to the disclosure of political views of persons participating in them, and public authorities collect excessive amount of information about citizens. Result – lost (formally), although won (as regards the content).

Significance of the case:
We managed to achieve a judgment in the statement of reasons for which the court included deliberations concerning threats to human freedoms and rights, connected with conducting consultations among residents. This judgment constitutes a compulsory read for persons who deal with consultations with residents, so that they take care of forms of these activities which do not interfere excessively with the entity’s privacy.

The ruling by the Supreme Administrative Court affected the law adopted in other local governments, e.g. the Town Council in Drezdenko, after the Supreme Administrative Court’s judgment in question, changed the resolution concerning the principles and procedure of conducting social consultations with residents of the Drezdenko Commune (http://dzienniki.luw.pl/WDU_F/2016/927/oryginal/Printable.html).

First names and surnames of persons participating in a village meeting (judgment of the Supreme Administrative Court of 6 December 2012, I OSK 2021/12)

Description of the case:
During the monitoring of the functioning of the village council fund in Poland (the use of which may be bindingly decided by residents of the village), we turned to local councils to provide us with the record of attendance of residents.

The mayor who received the request decided that he could not provide access to the record of attendance which contained first names and surnames of persons participating in village meetings because of privacy and personal data protection. The court of first instance deemed the restriction of disclosure of the record of attendance to be correct. It stated that residents participating in the village meeting may not be treated as persons holding public functions. The Watchdog Poland did not agree with this opinion. We decided that the restriction of this information, i.e. in consequence the knowledge about who in the village makes decisive rulings, infringes the essence of the right to information.

The Supreme Administrative Court admitted we were right. It stated that village residents, by participating in the village meeting, govern because the village meeting is the village governing body. For that reason, their personal data are not subject to privacy protection.

Significance of the case
The judgment is important locally for residents of villages because it concerns the openness of activity of an auxiliary body of the local council which is the closest to people. The statement of reasons of the judgment is important for the attempt to determine the thin line between the public sphere which is governed by disclosure, and the private sphere of people which is not subject to the right to information. A person who decides to take part in the public life, and particularly to be part of governance or participate in this process, must accept the potential social interest in obtaining related information.

Criminal liability for the failure to disclose information (judgment of the District Court in Kłodzko of 24 July 2008, VIII K 103/08)

Description of the case:
A member of the Watchdog Poland – Wojciech Paszkowski – sent a request to the District Building Control Inspector in Kłodzko for the provision of information in the form of files concerning the construction design indicated. The authority failed to disclose the information. It presented a position that this is prevented by the protection of the investor’s privacy. However, the Voivodship Building Control Inspector which received the appeal, repealed the decision refusing access to the information and ordered the authority to re-examine the case. For nearly two years the District Building Control Inspector neither disclosed information nor issued a decision in this respect – although the Voivodship Inspector urged them to do so and kept sending further letters.

The prosecutor’s office received a notification of suspected crime. It dismissed the investigation, and after the court’s intervention – it did it again. It opened the path for the aggrieved party – Wojciech Paszkowski – to submit a subsidiary indictment to the court.
After considering the subsidiary indictment, the District Court in Kłodzko issued a judgment in which it stated that the guilt of the defendant District Building Control Inspector was indisputable and doubtless. This meant that it found that the case met the criteria of the crime of failing to disclose information, stipulated by Article 23 of the Act on Access to Public Information. It did not impose a penalty but subjected the defendant to a one-year trial. This was caused by the fact that the guilt of the District Inspector was not significant, and the personal situation and previous lifestyle encouraged the court to state that the conditional dismissal of the proceedings would fulfil its function and effectively replace a penalty.

Significance of the case:
Criminal liability for the failure to disclose information is still illusory. Although several years have passed since the sentence, the case is still legally binding, ended successfully. It did not conclude with the penalty being imposed but with the conditional dismissal of the court proceedings. This means that the court found that the case met the criteria of a crime and found the defendant guilty. Thus it ruled that a crime had been committed.

Polish Football Association may not disregard the obligations of open activity. About the transparent activities of persons who use public money (decision by the Supreme Administrative Court of 26 July 2012, I OZ 524/12)

Description of the case:
The Watchdog Poland turned to the Polish Football Association to provide access to its budget. We did not receive any reply, so we complained against inactivity, however… it was not submitted to court (the complaint goes through the requested body), although there is an absolute obligation to do so.

Although the Polish Football Association disposes of public funds, it did not want to submit its actions to a social review. This is because it deemed that its activity was not subject to the society’s right to information and for that reason it failed to pass the complaint to court.
The court ruled in its decision that it was not the case. The ruling which satisfied us was expressed in the decision of the Voivodship Administrative Court of 18 June 2012 (II SO/Wa 7/12). The President of the Polish Football Association did not agree with it, therefore the case had to be examined by the Supreme Administrative Court. The latter confirmed that the activity of the Polish Football Association was subject to the right to information and the President’s claims were unjustified. Due to the failure to submit the complaint to court, a fine of 12,000 zloty (EUR 3,000) was adjudicated from the President of the Polish Football Association.

Significance of the case:
An important ruling which reminds us that it is not only public authorities but also other entities using public funds that are subject to disclosure. The decision and the relatively high fine imposed, in the amount of 12,000 zloty (EUR 3,000), acted as a reminder that public entities must treat information duties seriously, otherwise they have to accept the threat of sanctions. Thanks to the decision of the Supreme Administrative Court, there is no doubt that the activity of the Polish Football Association should be open. At the same time, this case offered a basis for other cases concerning the disclosure of the Polish Football Association’s budget.

Disclosed remunerations of members of the minister’s political cabinet (judgment of the Supreme Administrative Court of 20 May 2016, I OSK 3238/14)

Description of the case:
We turned to the Minister of Infrastructure and Development with a request in which we asked among other things about the remuneration of members of the minister’s political cabinet. We were denied access to this information in the form of an administrative decision. Therefore, we initiated the court proceedings. The court of first instance – the Voivodship Administrative Court in Warsaw – accepted in part that we were right. This is because it repealed the decision containing the refusal to the extent to which hit referred to the head of the political cabined (thus accepting the restriction of disclosure of his remuneration as groundless), and to the remaining extent it deemed the refusal to be justified. We did not accept this ruling because in our opinion all members of the political cabinet held public functions, which means that the openness of information connected with their activity may not be restricted.
The Supreme Administrative Court admitted we were right and stated that all members of the minister’s political cabined carried out similar activities, and therefore there are no grounds for making their remuneration confidential.

Significance of the case:
Privacy of persons holding public functions receives less protection than that of other persons who do not hold such functions. In practice, the determination that someone holds a public function is met with significant resistance from the administration. The Supreme Administrative Court confirmed that all members of the minister’s political cabinet hold those functions.

In a democratic state under the rule of law, disclosure in relation to persons who make decisions as public bodies, but also who influence those decisions, is of considerable importance. In other words – the society has the right to control the power base of the most important persons in the state.

In this case, the request concerned the remuneration of those persons, i.e. more widely – expenditure on politicians. Issues connected with this are the subject of unceasing interest by the society. It is important to base the discussion not on emotions but on facts. To achieve this, information about the rewarding policy in public offices is required.

Openness of contests for NGOs (judgment of the Voivodship Administrative Court in Warsaw, of 11 December 2012, II SAB/Wa 395/12)

Description of the case:
Different public authorities announce open tenders, as a result of which they finance implementation of various projects. A member of the Watchdog Poland turned to the Minister of Labour and Social Policy who announced such a tender, requesting the disclosure of the specific proposal submitted for the tender.

The Minister decided that the proposal did not constitute public information so failed to disclose it. He also argued that he turned to the organisation which submitted the proposal under the tender, asking whether they consent to the disclosure. A member of the Watchdog Poland, due to the negative responses received from the authority, submitted the case to court.

The court accepted the complaint. In its statement of reasons it indicated that although the proposal had been submitted by a non-governmental organisation, and thus it had not been prepared by a public authority, it emphasised at the same time that it was irrelevant for accepting whether the information is “public information”. It is the content and nature of the information that decides its “public” character.

The Minister of Labour and Social Policy did not submit a cassation appeal against this ruling, thanks to which the decision is final and legally binding.

 

Significance of the case:
The Court confirmed that public information encompasses not only documents prepared by the authorities, but also other information and documents which they receive. The author or producer of data are not important, but whether they refer to the public sphere. In practice it is an important indication for all who use the right to information and want to learn information held by the office but not produced by that office.

Moreover, this is also a very important ruling for persons controlling the activity of the third sector (sector of non-government organisations), because it confirms that they have the right to obtain information connected with contests held by the authorities. In order to evaluate the functioning of the authorities we must know not only the final rulings, but also have the knowledge of the basis on which those rulings are adopted. Especially as public money are at stake, allocated for the financing of projects selected from among those submitted.

This is also an important ruling for activists of non-governmental organisations. When studying proposals submitted by others, particularly effective ones, they may gain knowledge on how to write proposals, what to take attention to, and as a result – how to go through formalities which may constitute a barrier.