2014

The first series of requests concerning Ministers’ schedules was sent by the Citizens Network Watchdog Poland on 1 July 2014.

We asked 17 Ministries and the Prime Minister’s Chancellery to provide us with Ministers’ schedules, or at least information about meetings they have taken part in, their dates and participants.

We became interested in this matter when monitoring the actions of a citizen who applied for the disclosure of the same type of data in 2013, initiating the entire undertaking. Seeing his efforts and determination, as well as the difficulties he encountered, we decided to help him and we started representing him before courts. We also sent requests to the Office of the General Inspector for Personal Data Protection, and Polish commissioner in the European Union – Janusz Lewandowski. We wanted to find out how other offices will treat the request for disclosure of schedules. Both offices very quickly provided us with the information requested at the time.

Responses of Ministries

Unfortunately, in 2014 it was no longer so easy. This is because we received a positive reply to our July enquiries only from several institutions. These were the Ministries of: Environment (MOS), National Defence (MON), and Agriculture and Rural Development (MRiRW). However, even these schedules of MON and MOS – were not provided on line or in the case of MRiRW, they were not updated.

In other Ministries officials decided that the Minister’s schedule did not constitute public information within the meaning of the Act on Access to Public Information of 6 September 2001. They claimed that it presented only a “technical activity”, it was only an auxiliary tool and was of purely “working” nature. These are the explanations provided among other things by the Ministry of Administration and Digitalisation, Ministry of Economy and Prime Minister’s Chancellery. It was also emphasised that the schedule of planned meetings is subject to frequent changes, therefore the publication or provision of such information could mislead citizens about the possible activities of the Minister. The claim that such publications in no way decide the direction of activities of the administration authority and only such facts constitute public information was repeated frequently.

In many cases the judicature of Voivodship Administrative Courts and the Supreme Administrative Court was cited – these courts had already ruled in several cases that the Minister’s schedule did not constitute public information. In the statement of reasons for the judgment of the Voivodship Administrative Court in Warsaw of 3 July 2013 (II SAB/Wa 187/13), referring to the complaint against the inactivity of the Minister of Foreign Affairs, the Court stated that in their opinion the authority assumed correctly that the information requested by the claimant did not constitute public information because it was included in the so-called “internal documents” which are of no-official nature (…). However, in the Polish Act on Access to Public Information there is no definition of what such document is. Article 61 of the Constitution of the Republic of Poland RP, however, determines the citizen’s right to information about activities of public authorities and persons holding public functions. This provision does not specify what does and what does not constitute public information, but according to it any restrictions of this law may be introduced only through an Act and due to protection of citizens’ rights, as well as the security or an important economic interest of the State. Thus, we will not find any direct interpretation of the problematic term “internal document” which is the source of judgments that are adverse to disclosure.

Courts

In all cases in which the Watchdog Poland requested the disclosure of the Minister’s schedule and received a negative response, on 23 July 2014 we submitted complaints against inactivity to the Voivodship Administrative Court in Warsaw.

All these cases were finally decided by the Supreme Administrative Court in a way which was unfavourable to disclosure. The Court decided that the schedules constituted internal documents, not described by law but existing in judicature.

2015

The second series of requests, after the change of the government, the Citizens Network Watchdog Poland was sent on 9 December 2015. This time we asked 19 Ministries (their number increased) and the Prime Minister’s Chancellery. Also, instead of asking for future plans, we have asked about meetings that have been already held. This time we also went one step further, sending enquiries about the regional level – to Marshal’s Offices and Voivodship Offices. What was the effect?

Responses from institutions

This time we received the positive response from just two Ministries – Ministry of National Education (new) and Ministry of National Defence (they provided the schedule previously).

What surprised us, however, were 12 responses from regions (from Marshals and Voivodes). And if this was not enough – many offices not just do not have a problem with providing the Voivode’s or Marshal’s schedule, they even encourage those interested in checking what the public person was doing during their working hours, placing such schedules in the electronic form on the office’s website. This was done among other things by the Łódź, Podlasie, Opole or Podkarpacie Voivodes.

Courts

On 2 February 2017, three hearings were held in the Supreme Administrative Court, which constitute a partial victory in the efforts to obtain information about Ministers’ meetings. Cases concerned the Prime Minister, Minister of Infrastructure, Construction, Finance and Development (a super-ministry combining two departments and entrusted to the Deputy Prime Minister) and Minister of Interior and Administration.

The court of the lower instance – the Voivodship Administrative Court – had already decided earlier that although the schedule itself did not constitute public information, the information about meetings held had a public value. Thus, the Voivodship Administrative Court obliged authorities to process our request in the part concerning the indication of the date and the entity with which the Prime Minister or the Minister held the meeting.

The first two of the authorities mentioned did not agree with the ruling of the Court. In the cassation appeal, the Prime Minister’s attorney accused us of failing to specify the request – this was because we failed to indicate in it which meetings we were interested in (official, working, domestic, foreign, with citizens or with other institutions). Additionally, it was emphasised that the information (some of it) was available at PM’s website www.premier.gov.pl, and above all, the Court incorrectly obliged the Prime

Minister to provide information about “all of their personal contacts”. The Super-ministry’s representative additionally raised that the information requested did not exist in reality and does not constitute public information.

In the case with the Minister of Interior we were the ones to submit an appeal against the judgment issued, claiming that the Minister’s schedule was nothing else but public information.

Although the Supreme Administrative Court deferred the hearing in the proceedings from the cassation appeal submitted by the Minister of Infrastructure and Construction, however it gave judgments in the other cases. Finally, the result is divided – on the one hand the Court dismissed the cassation appeal of the Prime Minister, on the other hand failed to allow our appeal in the proceedings with the Ministry of Interior and Administration.

Which is positive – the Supreme Administrative Court, in the oral statement of reasons, emphasised that the information about meetings held by such authority as the Prime Minister undoubtedly constitutes public information. The Court also pointed out the lack of consistency in the Prime Minister’s argumentation which did not indicate clearly whether they had or did not have the data applied for. In the Court’s opinion, meetings of the Prime Minister had to have a material trace in documents. The adjudicating panel also shared our view that at the level of submission of the request there is no space for making it specific (which, anyway, was not requested by the obliged entity).

What, however, is the cause for concern – the Court, when dismissing our cassation appeal, supported an incomprehensible judicature path and stated that a meeting schedule is only an office, technical tool. Thus – according to the Supreme Administrative Court – it was used exclusively as assistance in the Ministry’s activity, and which follows – may not be deemed public information within the meaning of provisions of the Act on Access to Public Information.

Despite the fact that half of the pro-disclosure objective has been achieved so far, it is worth noting that the above two judgments excellently depict the artificial division created in the judicature between information about meetings held and the schedule which encompasses such data anyway. This differentiation not only creates the need to transfer data from the schedule to separate messages for applicants, it also supports the unjustified discussion concerning the so-called internal documents.