In 2018, we carried out our regular activities related to the improvement of transparency – we submitted requests for public information, wrote texts and appeared in court. We promoted knowledge about transparency and tried to reach new target groups. We used the rights vested in public benefit organisations, entitling us to free broadcasting time. We also developed technological tools designed for efficient operation, both internally (management of the circulation of documents) and externally (sending requests for information and analysing the replies). We celebrated our fifteenth birthday.
Our operations in numbers looked as follows: 5813 – this is the number of requests for public information we have sent, 730 – this is the number of cases received by our free legal clinic (and there are at least as many instances of advice provided verbally, by phone or in social media that are not recorded by any system), 158 – number of court sessions in the cases we have been involved in, 146 – number of texts published on our websites and 150 – number of mentions in the media regarding our activities.
Results of selected court cases
In courts, we have managed to finalise several cases that began many years earlier.
In Rabka-Zdrój, the cases we joined – filed against local self-government authorities – were concluded with final and non-appealable judgements. This win, in addition to the unprecedented sentences for persistent refusal to provide public information, could have been one of the causes of the replacement of the authorities in the local elections in 2018.
In Wrocław, after the local elections in 2018, the new mayor revealed the minutes of meetings of the mayor’s board. Although we have not been able to secure favourable court sentences in earlier years, the discussion on the significance of the documents showing how decisions important to the residents are made has most likely contributed to this positive change.
We have also received the opinions on the reform of the open pension funds requested by President Bronisław Komorowski in 2011, before he signed the Act on Open Pension Funds. This is a major victory, and the court case that dragged on for many years has shown how non-transparent law-making in Poland could be.
We have also won a series of cases with forest authorities for access to the contracts for the sale of timber. We requested these contracts after the tree felling in the Białowieża Forest. The cases against the forest authorities are important for at least three reasons. The information we acquired will enable us to verify the actual reasons of the felling (they may be different from the official reasons). The cases concern an institution that did not have much experience with replying to requests for information, which made it an opportunity to educate. Finally, the courts had to find the balance between protection of business secrets and transparency important to the citizens.
After almost four years, we have also won the case for access to information about the project titled: “Transparency Regulation Model”. The aim of this project was to present recommendations for modifications of the right to information. Any information about this is important to the public.
After six years, the scientist we assisted in his battle with the State Fund for Rehabilitation of Disabled Persons (PFRON) received the documents about the employment of people with disabilities in the local self-government bodies of Zachodniopomorskie Province. Poland has one of the lowest rates of such employees in Europe, and we hope that this win will help further measures designed to open the labour market to people with disabilities.
The jurisprudence concerning the transparency of awards in public institutions has also been reaffirmed. Subsequent sentences confirmed that such awards were transparent if they concerned public officials. Although we would prefer broader application of transparency, we appreciate the fact that many years of our work have brought some results.
In 2018, we have sent 5813 requests for public information. They were made in pursuit of our objectives with respect to the monitoring of public institutions in terms of transparency, they indicated the areas that should be transparent in a democratic state, and they verified the truthfulness of the politicians.
Compliance with the requirement to provide information
Inactivity of the competent authorities
Many institutions still do not comply with the obligation to reply to requests for information. This is true both in the case of experienced institutions, such as local self-governments, and in the case of bodies that do not receive requests as often.
Local self-governments reply much more seldom when the request concerns irregularities at the local authority or when it is a mass request sent to multiple authorities. For instance, almost 40% of authorities failed to reply to a request concerning communal media that was sent several months before the elections in 2018.
There is also a major problem with receiving a reply from institutions that do not frequently reply to requests. This was the case with kindergartens enquired about the quality of their food – only 18 of 48 kindergartens responded. Out of the 28 parishes in charge of municipal cemeteries, only 7 sent their reply. The police is also not an institution that is eager to provide the requested information. We have not received replies to 3 out of 5 requests sent to police headquarters. They concerned actions taken by police officers and documents kept by the police.
Refusal to provide information
There is a certain type of replies frequently used to prevent the information from being published. This is the case in situations where the requested institution finds that what we request is processed information, i.e. information that does not exist as of the date of the request, and the officials have yet to prepare it. In such cases, they demand that the requesting party prove significant public interest, which would cause the authority to prepare the reply. We were asked to prove significant public interest in 2018, for instance, by the Law and Justice party (PiS), when we requested the bank statements of the party and scans of the resolutions made by the Board, or by the Chancellery of the Sejm, when enquired about the awards for the personnel. 45 local self-governments, in turn, found that our request concerning their media and spending on promotion was processed information. Sometimes, it concerned the entire request, and sometimes – only its financial part. We do not understand what new type of information would have to be created in response to requests for standard documents, such as bank statements or resolutions, or requests for information available in accounting systems. This is rather an indicator of the attitude of the institutions to transparency.
Also, we were denied information 44 times in the case of other, individual requests. However, this does not always mean that the required decision was issued in such a situation.
Extent of information not regarded as public information according to the competent authorities
Although many cases have already been successfully settled by the courts, the competent authorities ignored the existing rulings. In other cases, in turn, they referred to rulings that significantly hindered the monitoring of public institutions.
Public information did not – allegedly, in the opinion of the entities to which we sent our requests – include bank statements (this is what the Civic Platform Party claimed at the beginning of the year, before changing its mind later), schedule of the President of the Constitutional Tribunal; credit card statements requested from the Minister of National Defence; details of the guards who wanted to remove the postcards taped to the wall during the protest of the parents of people with disabilities; awards for the Marshal’s Guard; internal correspondence of the Ministry of Interior and Administration concerning the suspension of the board of the Wolni Obywatele RP foundation and appointment of a compulsory administrator; letter in which the National Public Prosecutor’s Office encourages the investigators to disregard the resolution of the Supreme Court concerning the harmfulness of excessive use of illegally collected evidence or the report on the audit of a municipal company and personal indication of the amounts of awards for specific presidents and members of the supervisory boards of municipal companies. In most cases, these beliefs of the competent authorities will be verified in court.
Institutions that believe they are not the body competent to provide the information
In 2018, 10 state-owned companies responded that they were not the body competent to provide information. We asked them who they funded and sponsored and how they rewarded their personnel. Interestingly, the replies of the companies were not unanimous. Some of them believed that our questions did not concern public information, while other companies claimed that although the enquiries concerned public information, they were not the competent authority, which meant that they would not have to reply. LOT believed that it was not competent to such an extent that it did not even forward our complaint against its inactivity to the court, for which it was fined PLN 3 thousand by the court.
Extension of the period for reply
A significant problem with the exercise of the right to public information is the extension of the period for reply by the competent authorities. Although, this is an instrument granted by the Public Information Act, the bodies responding to our requests fairly frequently use it in a manner contrary to the legislator’s intent. Theoretically, the institution extends the period for the reply to the request when it is unable to prepare the information for the requesting party within 14 days. However, there are many institutions that extend the period for the reply only in order to refuse to provide information in the end or simply in order not to provide it at all. For instance, the Chancellery of the Prime Minister of Poland, replied to 2 out of 4 requests. In one case, we have not even received a reply; in another situation, the period for reply was extended, after which the Chancellery simply failed to reply.
What we do when faced with a violation of the law?
Many of the enquiries we sent in 2018 have never received a reply, and there are many institutions that we eventually see in court. Sometimes, the failure of the authority to respond is indicative of ignorance of the law, in other situations, it is a sign that the issue is sensitive, and in yet other cases, it is simply caused by forgetfulness. In most cases, we file complaints or appeals. Our goal is not to point fingers at authorities that fail to reply, but to develop mechanisms ensuring that every request for public information receives a reply.
Topics we focused on
In 2018, in connection with our public campaigns: Meaningless? and Don’t be afraid to ask, we addressed issues important to regular people to show that the right to information was important in their everyday life. We checked if the food served in kindergartens conformed to the lawful requirements and we investigated the treatment of pain in hospitals.
We also established a framework for the monitoring of self-government media. We sent requests to all communes, which enabled us to determine that approximately 50% of local self-governments had their own media. We analysed their contents using the methods developed by the Oživení organisation from the Czech Republic. In 2018, we also worked on preparing the monitoring of municipal companies, preparing databases and looking for effective monitoring methods.
In the Autumn of 2018, we cooperated with volunteers, observing the voting process during local elections. Public observers were able to monitor the voting for the first time thanks to changes in the Polish Election Code.
Influencing the law, documents and practice (advocacy)
In 2018, we made efforts to effect changes:
- related to the financing of watchdog organisations by the state,
- related to the financing of organisations working to promote basic freedoms by the EU;
- concerning the protection of the independence of Polish courts;
- designed to improve the transparency of the public sphere.
We pointed out to the Government, which was planning a Programme for the Development of Citizen Organisations, providing for measures addressed to citizen media and local watchdogs, that it would be necessary to ensure that the persons involved in the decisions on financing are independent and free from outside pressures and that the beneficiaries have the required knowledge and ethical qualifications before they receive any grants.
We also appealed to the Polish Members of the European Parliament to support the resolution of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament on the creation of a fund to support organisations operating in member states. The aim was to finance measures related to the protection of the values referred to in Article 2 of the Treaty on European Union: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
Due to the changes in the Polish judiciary, which subordinated judicial power to parliamentary majority, we appealed to the President of the European Commission, Jean-Claude Juncker, together with other organisations to send the Polish Act on the Supreme Court to the Court of Justice of the European Union.
At the beginning of 2018, we submitted another opinion of our own and appealed to the Prime Minister of Poland, Mateusz Morawiecki, together with other organisations to stop further consideration of the Act on Transparency of Public Life, the draft of which had been presented towards the end of 2017. We indicated that this draft act would not improve the transparency of the public life; instead, the proposed regulations would lower the standards for access to public information, civil participation in the legislative process or monitoring of lobbying. We emphasised that – due to a large number of imprecise provisions that could be applied arbitrarily – the draft act would pose a genuine threat to civil freedoms, including, in particular, the right to privacy. The government stopped further work on the act in 2018, even though this fact was not officially communicated.
We submitted our opinion on the draft act concerning Emergency Medical Services that was proposed by the government. We pointed out that a large amount of information vital to the safety of the citizens, e.g., information about the cooperation between different medical emergency units and the methods used by such units for notification, alerting and exchange of information, is planned to be made non-public. The act also included provisions designed to restrict access to information about the qualifications of the personnel, statistical data about the average time of arrival to the incident scene and duration of the operations.
Upon request of the Ministry of Digital Affairs, we reviewed the Communication from the Commission on tackling online disinformation. Our comments concerned the role of the right to information during protection of the reliability of information.
We also addressed the community of legal counsels in connection with the preparation of information for the bodies of their professional association regarding the application of provisions on access to public information.
We also submitted various petitions to multiple bodies, proposing an improvement of the transparency of public expenses, including petitions to the Supreme Administrative Court and to mayors of large cities – Gdynia, Wrocław and Warsaw.
We also provided legal advice. Half of the cases were reported to us via our online system: porady.siecobywatelska.pl (in 2018, we recorded 730 cases), and the other half included verbal advice – given over the phone, during training courses or via Facebook (the advice concerned simple issues). We specialise in the rights of residents, local self-government and the right to information.
In 2018, we received requests for advice primarily from councillors, members of the press and representatives of foundations and associations, and sometimes from residents who wanted to investigate their own commune. We are usually consulted with respect to matters connected with requests for public information sent to local self-government bodies – commune or county offices – as well as requests sent to the government administration, e.g., provincial offices. The people who consult us frequently describe problems related to requests sent to schools, libraries, community centres and municipal companies, e.g., transport or sewer companies. However, this is only the beginning of a long list because in 2018 we were also contacted in connection with problems concerning requests for information from: police headquarters, social welfare centre, hospital, employment office, prison authorities, district attorney’s office, courts, museum, building control inspectorate, PKP, Supreme Audit Office, Central Statistical Office of Poland, Social Insurance Institution, State Forests, associations, District Chamber of Legal Advisers, rector of a university, political party, Chancellery of the Sejm and the Plant Breeding and Acclimatisation Institute.
The enquiries we received concerned official trips of mayors, lists with names of personnel employed by the authorities, their education, contracts signed by public institutions (including the contracts for legal services), awards to personnel of the authorities, information about the personnel of municipal companies, documents concerning the competitions for posts at public institutions, memos, documentation of proceedings (e.g., reports on visual inspections), legal opinions for the authorities (e.g., concerning the legality of charges for cemetery services), requests for the financing of projects, costs of organisation of cultural events, official debit card statements, audit reports (e.g., at the State Labour Inspectorate) and social media operated by public institutions.
We were frequently asked about specific cases, e.g., if it would be possible to record court hearings, what should be done if false information was provided in a case, could a complaint to the court be submitted electronically, did directors of schools and juvenile detention centres have to submit declarations of assets and could a vice-president of a municipal company be a member of the county executive board.
Some of the cases reported by the clients have been – upon consent of the parties involved – described on our websites. In 2018, we described, in particular, the story about the request for information concerning the amount of awards at the Municipal Social Welfare Centre, which was concluded with a positive court judgement, providing an excellent explanation of the reasons the requested data should not be regarded as processed information (Request for awards at the Municipal Social Welfare Centre – which procedure?); the story of the request concerning the salary of the former president of a municipal company (Is the salary of a former president of a municipal company public information?); offensive manner in which the president of a municipal company communicated with the requesting party (Experiments with the right to information) or the right to check what happens to the registers of voters during the election year (Friends and relatives of the commune head).
One of the primary areas of our activities is the education of citizens about their rights. We do this in many ways, also by involving them in our work. However, the most common form is education through meetings and training courses. In 2018, we attended at least 15 local meetings or webinars for activists, local self-government officials and young people (in particular, in Gdańsk, Elbląg, Ciechocinek, Gryfino, Darłowo, Kurcewo, Kalisz, Złotoryja or Świdwin). We were also present at youth festivals – Open’er Festival in Gdynia, Pol‘and’Rock (formerly known as Woodstock Festival Poland) in Kostrzyn and Slot Art in Lubiąż.
We talk a lot during such meetings, tell the people about the right to information, give legal advice and sometimes collect signatures on petitions. In 2018, during youth festivals, we collected signatures on a petition concerning the awards for city officials in Warsaw, Wrocław and Gdynia. We also conduct workshops, e.g., “Rights are meant to be used, i.e., introduction to the right to public information”, “Citizen instruments” or “Fake news – popular phrase or genuine problem?”.
Promoting knowledge about rights
An area that is fairly closely associated with education is the promotion of knowledge about rights. Measures classified in this area included public campaigns, websites and presence in the media. In 2018, 146 texts were posted on our websites, and we appeared in the media 150 times. We also conducted campaigns concerning the right to information. We used our free broadcasting time in public media in 2018 to show our own spots – Not important? (which appeared on TV and radio) and Don’t be afraid to ask (TV spot with a dedicated web page) (https://informacjapubliczna.org/pytaj/).
Public debate Debates
Other measures closely associated with education are the ones designed to spark public debate on important topics. In such cases, we use debate as a tool. In 2018, we conducted two such debates. The first one was held in Radom, and it concerned the perception of democracy by young people. The second debate gathered the local community of Lubartów, and it concerned the election strategies of the citizens and the presence or absence of genuine choice.
Articles addressed to a specific community.
Another form of participation in the public debate are texts addressed to the legal community. As part of cooperation with Dziennik Gazeta Prawna, we prepared texts presenting our evaluation of the Polish rulings pertaining to transparency and the role of citizens in the state. These texts concerned, in particular, restrictions of transparency caused by the attempts to determine if the particular information could be regarded as public information and overlooking the essence of transparency. We argued that this was neither necessary from the perspective of the Polish law nor consistent with the standards set out by the European Court of Human Rights. We analysed judicial formalism, which was doing great harm to justice. We wrote about how the courts – contrary to the existing law – refused to release public benefit organisations from the obligation to pay court charges.
We used the same medium to comment on the reactions of public institutions to our enquiries. In this context, one of the more important issues for the quality of public life in Poland was the problem of awards received by public officials. Another topic was the extensive disinformation (which was spread also by public institutions) and the methods of law-making.
Another form of participating in the public debate included open letters and protests. In 2018, there were many issues related to the deteriorating quality of public debate and democratic standards.
In the August of 2018, together with other persons and organisations, we addressed the president of the Law and Justice Party with a request that Krystyna Pawłowicz, an MP of this party, who was also a member of the National Council of the Judiciary, apologise to Draginja Nadaždin for her xenophobic statement concerning the head of Amnesty International in Poland. We pointed out that the hate speech used by the MP, which is also used by the ruling elites, will lead straight to violence and tragedy.
In July 2018, we protested when the annual report of the Ombudsman was not heard by the Justice and Human Rights Committee of the Sejm due to the sudden interruption of the session by the Chairman of the Committee, MP Stanisław Piotrowicz. The Chairman of the Committee, Stanisław Piotrowicz, brutally interrupted the Ombudsman, Adam Bodnar, in mid-sentence. After presenting an extensive report on his activities in 2017, pointing out the most important problems with the observance of human rights in Poland, the Ombudsman was supposed to answer the questions of the MPs. However, he was not allowed to finish his statement as he was about to address matters concerning the Constitutional Tribunal. When the Ombudsman mentioned the disturbing political changes, the Chairman ended the session of the Committee. We argued, together with other authors of the protest, that silencing the Ombudsman was equivalent to silencing all those whose rights had been violated by the authorities. In the same text, we objected to situations where representatives of civic organisations, e.g., Obywatele RP, KOD and Warszawski Strajk Kobiet, were not allowed to attend the session of the Committee.
Also in July 2018, together with other organisations, we protested against the unreasonable attack of Mr Mariusz Muszyński, an employee of the Constitutional Tribunal, against dr Adam Bodnar, who was diligently performing his duties as the Ombudsman. The votum separatum of Mr Muszyński to ruling of the Constitutional Tribunal No. K35/16, where he accused the Ombudsman, in a vitriolic tone, of “ethical deficiencies” and “unlawful activity”, in particular, did not qualify as a proper dissenting opinion in terms of form, contents or aesthetics.
Our international efforts in 2018 primarily included solidarity actions. As a member of the EU-Russia Civil Society Forum, we spoke up in defence of the head of the Memorial – Oyub Titiev – who was arrested in Chechnya, Oleg Sentsov, who went on a hunger strike, and other political prisoners. Together with other organisations, we put pressure on the Polish Minister of Foreign Affairs and the President of the Polish Football Association (in connection with the World Cup organised in Russia) to make efforts aimed at ensuring the release of political prisoners by the Russian Federation.
We also signed a letter of solidarity with Hungarian organisations in relation to the package of acts implemented in Hungary that threatened civil rights and freedoms.
Following the tragic death of Jan Kuciak, journalist who fought against corruption, we appealed together with other organisations to MEPs and any other authorities for protection of all people who request information.
We also cooperated with organisations from the Visegrad Group and Belarus on the preparation of a handbook of legal instruments designed to strengthen the rights of the citizens in the individual countries.
As part of an international project, we conducted interviews with Polish businessmen concerning their potential interest in the financing of measures aimed at ensuring the rule of law and transparency.