Explanatory Memorandum on Polish FOIA constitutional case K1/21

9 January 2021

Dr hab. Michal Bernaczyk

Associate Professor of the University of Wroclaw

Faculty of Law, Administration and Economics

Constitutional Law Department

To whom it may concern, members of the international community,

                                          transparency advocacy groups, journalists, members of international media associations


Explanatory Memorandum

on the Motion submitted to the Polish Constitutional Tribunal

regarding the Polish Law on Access to Public Information (case no. K1/21)

(“Law on Access to Public Information of September 6, 2001“, hereafter “LAPI”)


  1. On 16 February 2021 the First President of the Polish Supreme Court Ms. Małgorzata Manowska filed a motion with the Constitutional Tribunal of Poland asking it to declare as unconstitutional large portions of the Polish Law on Access to Public Information of 6 September 2001 (“LAPI”). The case was registered by Constitutional Tribunal under docket no. K 1/21[1]. It is expected to be heard by the full bench of the politically controlled Constitutional Tribunal along with the possible participation of a person who was unlawfully elected to the position of judge (see ECHR’s opinion of May 7, 2021, Xero Flor w Polsce sp. z o.o. v. Poland, application no. 4907/18[2]).
  2. If the Constitutional Tribunal rules in favour of the motion then following effect should be expected:
  • Firstly, a de facto derogation of the right to access public sector information. Public bodies will no longer be required to grant access to its information.
  • Secondly, such ruling will jeopardize freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers guaranteed by the Article 10 ECHR and the Article 11 Charter of Fundamental Rights of the European Union
  • Thirdly, whatever is left from the right to access public information will become deprived of effective protection as infringing it will no longer be penalised. This may lead to increase of corruption and negative impact on transparency of public spending (incl. EU funds).


  1. The motion filed by the First President of the Supreme Court invokes Article 191 sec. 1 of the Polish Constitution which grants several constitutional actors the power to initiate an abstract control of legal norms (various forms of ordinary legislation, incl. international law[3]). This instrumental application of the abstract judicial review proceedings to incidental problems originating from political conflicts, received a lukewarm reception in the Constitutional Tribunal’s jurisprudence and doctrine. In the present case’s context, the following should be stressed:

1) abstract, concentrated judicial review should not be treated as a short-term remedy to various pending freedom of information litigations,

2) the Supreme Court of Poland consequently obstructs the access to information procedure so to avoid disclosure of information on activities of persons appointed to the Supreme Court of Poland in a procedure incompatible with the basic guaranties of independence and impartiality established in EU law[4].

  1. On 24 March 2021 over 100 Non Governmental Organizations and 10,000 citizens petitioned the First President of the Polish Supreme Court to withdraw the motion[5]. On April 19, 2021 the petition was dismissed on the vague and tortuous grounds that “[the] provisions subjected to referral to the Constitutional Tribunal remain the source of many controversies. Especially, in case of clerical post there have been difficulties with assessing, whether such persons ‘perform public functions’ which would prevent information on such personnel from being exempted [from the scope of by the application of the privacy exemption clause in Article 5 sec. 1 sentence 1 LAPI applied routinely to private individual – M.B.][6].
  2. It is symptomatic that both the motion to the Constitutional Tribunal and aforementioned response to widely-supported petition fail to provide any practical source of such legal controversy. While the response to the petition gives none of the examples (the Law on Petitions does not require profound legal reasoning in the official response to petition), the First President’s Motion to the Constitutional Tribunal raises more concerns as it provides incidental and out of context reference to several administrative court cases. It does not demonstrate concern for the procedural duty to deliver a construction of the detailed, well-entrenched right to information in Article 61 of the Polish Constitution[7], nor does it analyse challenged ordinary legislation. Taking into consideration over 22,500 court opinions issued in the last 20 years in the process of Polish LAPI litigation, the First President’s reasoning barely addresses 0.017% of the existing judicial practice. This however is not just a matter of scantily built argumentation but comprises a procedural breach of the burden of proof on petitioner’s side in constitutional adjudication. According to Polish doctrine, a motion for abstract constitutional review shall include “analysis of the norm’s functioning and effects caused by its application. In some cases, reaching this objective requires examination of certain social facts[8]. It is highly debatable whether such condition was satisfied in case K 1/21. More surprisingly, the motion provides little argument against previous Constitutional Tribunal case law (in particular, the opinion in case K 17/05 of March 20, 2006[9]) which had already resolved dilemmas on construction of Article 61 sec. 1 of the Polish Constitution (‘a person performing public functions‘)[10] by declaring Article 5 sec. 2 of the LAPI constitutional and, furthermore, introduced juridical test on the scope of personal information subjected to disclosure under Constitution and Article 5 sec. 2 of the LAPI

The following facts:

– the issue of constitutionality of the provisions of the AAPI is ostensible; the First President ignores the fact that the limited scope of the privacy exemption in Article 5 sec. 2 sentence 2 of the LAPI is a matter that has already been constitutionally decided in 2006 (case no. K 17/05),

– the motion pursues the widest possible derogation of the key LAPI provisions on an unprecedented scale in the history of the Polish Freedom of Information Law’s,

may only mean that the First President of the Supreme Court by this motion has decided to create the procedural opportunity for the Constitutional Tribunal to not only  strike down the fundamental ordinary legislation granting media and citizens (including. EU nationals) with a right of access to information held by various public institutions, but also to overrule pre-existing constitutional case law, including fundamental rules of interpretation concerning Article 61 of the Polish Constitution[11]. Such tactics, along with the recent opinion of the Constitutional Tribunal (case no. K 6/21), striking down Article 6 sec. 1 ECHR in hostile response to XeroFlor case, may and should be considered as a discernible pattern in autocratic regimes where courts ‘implement controversial policies so as to allow political distance from core elements of the regime[12]. The recent decline of the rule of law standards in Poland, open hostility to journalists and independent media outlets[13], recently revealed the deliberate obstruction of RTI/FOI requests amounting to possible criminal abuse of power by top-ranking officials in Polish government[14], and open legislative attempts to expropriate the U.S. media giant Discovery[15] should be also taken into consideration when assessing the combined effect of the First President’s motion.

  1. The First President of the Supreme Court expects the Constitutional Tribunal to strike down the fundamental provisions of LAPI [in particular Article 4 on public authorities covered by the Law; Article 5 sec. 2 sentence 2 on access to information on persons performing public functions] as incompatible with Article 61 of the Constitution [right to information] and Article 47, 51 [right to privacy; right to personal data protection] as regards state officials. The provision (rarely enforced Art. 23 of the LAPI) penalizing unlawful denial of disclosure is also contested what would leave access to information without any meaningful system of checks against deliberate obstruction of the LAPI, incl. fabrication of factual circumstances allowing to invoke broad exemptions of the law.

It is worth noting that the motion filed with the Constitutional Tribunal does not seek further constitutional protection of citizen’s privacy but addresses only the need for protection of public officials from public scrutiny. The alleged breach of privacy of state officials serves as a fig leaf introduced to create a false impression that the motion seeks to strengthen the scope of fundamental rights, disguising multiple adverse antidemocratic effects, e.g., erosion of accountability, limitation on freedom of newsgathering, free and fair election campaigns, unfeasibility of verifying public records followed by an increased risk of facing prosecution with anti-libel laws or civil lawsuits. If the Constitutional Tribunal satisfies this demand, it will render the right to information virtually impossible to enforce by citizens, NGOs, journalists or other public watchdogs. Article 61 of the Constitution, Article 10 sec. 1 ECHR and Article 11 of the Charter of Fundamental Rights of the European Union will become ineffective because the motion not only targets the substance of the right to information but it also undermines existing procedural rules of handling the requests and the denial of disclosure.

The potential scenario sought by the First President of the Supreme Court is comparable to a complete derogation of  the functional meaning of “agency” in the U.S. Freedom of Information Act of 1966 and “public authority” in the Swedish Freedom of the Press Act. Access to information on public officials, on their actions falling within state power, salaries of the public sector employees, state owned companies, enterprises (or other institutions in which Polish state or self-governing entity exercise decisive influence) performing public tasks will also become shielded from public scrutiny. Once the law becomes void, it is unlikely that the gap in the ordinary legislation will be quickly filled in by the legislature. By way of example, it has been over a year since the recent anti-abortion opinion of the Constitutional Tribunal (issued in case no. K 1/20 on 22 October 2020) left the ordinary legislation without any provision allowing for termination of a pregnancy having a lethal fetus defect. Despite the mass protests, overwhelming criticism of the use of the Constitutional Tribunal as an instrument, Polish women still have no access to abortion following prenatal diagnosis of a lethal fetal defect[16] and yet parliament protracts proceedings over the legislative initiative to reinstate the medical procedure, in effect creating an absolute ban on abortion procurement. The same scenario might be utilized by a parliamentary majority in the case of constitutional right to information, leaving a “’partially unconstitutional” and ineffectual LAPI hostage to a deliberate political deadlock without any prospect for new legislation. It will turn this essential constitutional right against the state into nudum pactum, impairing the position of public watchdogs and indirectly affecting free and fair election principles.   

  1. The motion made by the First President of the Supreme Court to the Constitutional Tribunal is based on following claims:
  2. By employing a different statutory language in Article 4 sec. 1 points 1-5 of the Law on Access to Public Information, parliament exceeded the constitutional framework established in Article 61 section 1 sentences 1&2 of the Polish Constitution. According to the First President the “public state organ”‘ and “other entities performing the duties of public authorities and managing public assets (or property)’ should receive an extremely narrow and strict reading (denying in its essence the concept of people’s sovereign powers vested in representative and accountable government; see Article 4 of the Polish Constitution), which would eventually inevitably translate into reduced scope of legislative power: the public institution would be bound by constitutional duty to disclose information only if its scope of activities covered both the execution of the public duty and public asset management. The motion’s reasoning fails to notice that both features often overleap each other, not to mention its dismissive silence on the broad reading of the “public state organs” in the Constitutional Tribunal’s jurisprudence to date[17]. If the First President’s logic were to be followed, it would create an absurd constitutional standard where the transfer of public assets into any form of state owned companies or the privatization of public resources becomes a gateway to the formation of uncontrolled, clientelist sphere of government, a result that framers obviously wanted to avoid. Apart from the risk of increased corruption, the First President’s claim is not true given that the statutory language has been successfully construed in the light of superior, constitutional clause, receiving proper reading in the National Supreme Administrative Court’s resolution (most notably due to 7 judges’ resolution issued by the Supreme Administrative Court on 11 April 2005, docket no. I OPS 1/05, published at  Administrative Courts’ Central Data Base, www.nsa.gov.p) and its consistent application in thousands of subsequent cases.
  3. Articles 5 section 2, sentence 2[18] & Art. 5 section 3 of the LAPI impose undue burden on the privacy of the persons performing public functions by the duty do disclose information (including personal data). As already mentioned above, the same problem had been successfully resolved by the Constitutional Tribunal in 2006 in the above-cited case no. K 17/05 by making the right to information complementary to the freedom of expression clause in Article 54 sec. 1[19]. Article 5 sec. 3 of the LAPI introduced the limited right of access to information on pending proceedings since its connection to the governmental accountability remains obvious[20]. Once this clause becomes unconstitutional, the public and media will not have access to information on pending or concluded criminal investigations against public officials (in the form of court or law enforcement records) which should be considered as the most threatening factor in terms of the government’s accountability. As was accurately underlined in the ECHR’s opinion in Solska and Rybicka v Poland, “In the Polish context, the necessity of a judicial review was even more important, taking into account that the prosecution service was not an independent authority, but a body subordinated to the Prosecutor General, who was at the same time the Minister of Justice[21]. We are facing a scenario in which the public will not know, except for official and redacted press releases, the reasons underlying a decision to prosecute (or – more importantly – to withdraw from prosecution), nor it will have access to source documents to verify any possible political motive of such actions. Protracted investigation of the personal data leak and harassment of the judges by so-called troll farm in the Ministry of Justice[22], the recent inaction of the Polish prosecution service regarding a state official’s perjury in the investigation concerning the accident of motorcade escorting former PM Ms. Beata Szydło[23] or the lack of any firm response to highly probable deployment of Pegasus spyware against senator Krzyszof Brejza to sideline opposition in the 2019 parliamentary election[24] suggest that possible derogation of the (already limited) right to information to law enforcement records will only facilitate suppression of the public’s right to know about abuse of power.
  4. The motion suggest that Article 1 sec. 2 of the LAPI does not fulfill the legal certainty standard in clarifying the relation between “other” legislative measures enjoying their own principles and procedural rules of access. Regrettably, it must be said that this claim seeks the same effect as already explained in sec. B. The motion fails to notice that numerous freedom of information laws worldwide faced the challenge of adjusting general access rights into the vast ecosystem of exclusive access procedures by either explicit provisions or by case law. The same process occurred in Poland through its Supreme Administrative Courts’ opinions creating a stable approach to resolving potential conflicts between the LAPI’s general right of access and the exclusive procedures based on additional proof of factual or legal interest in obtaining information (e.g., the Supreme Administrative Court opinion of 3 March 2015, docket no. I OSK 1948/14 on access to motions submitted by the Public Prosecutor-General in clemency proceedings: “The provisions of Article 1 sec. 2 of the LAPIAAPI means that wherever specific rules pertaining to the principles and procedures of accessing information comprising public information are defined differently than in the LAPI and it is not possible to reconcile the two statutes, the provisions of the specific statute shall prevail. In cases where the statute is silent on access or only partially regulates it, the specific provisions of the LAPI shall apply, in the first situation as a supplement and in the second situation as the exclusive rule applicable. If in a given matter the right of access is governed only in part, then that part of the matter shall be governed by the lex specialis, the remainder of the matter is governed solely by the provisions of the LAPI as has been repeatedly emphasized by the NSA (supreme administrative court)(…) In the literature it is underscored that in particular those separate statutes of criminal procedure law are understood to be applied according to the principle of harmony with the LAPI. It is also understood that such information may be protected while it is still current, not after the matter has been resolved. The legal completion of a criminal matter ushers in the full applicability of the provisions of the LAPI without concomitantly being determinative of the scope of the information to be provided. (M. Bernaczyk, Prawodoinformacji publicznej w Polsce i na świecie, [The right to public information in Poland and in the World] Warsaw 2014 pp. 383-386)
  5. The First President’s motion seeks the declaration of the unconstitutionality of Article 5 sec. 1, sec. 2, sec. 3 based on the claim that none of these provisions govern the procedural aspects of redacting personal data in requested records that are subject to disclosure. This however seems to contradict the modest example of the Administrative Courts’ case law cited by the First President in her motion. All of the examples provided there assume that, despite legislature’s silence on the issue in the text of the law, disclosure implies redaction of sensitive portions of material. Although such an approach has never been contested in LAPI’s history, the First President demands that the law in this sensitive area should replace the “right to know” doctrine by a “need to know” standard which flies in the face of Constitutional Tribunal’s view on the substance of Article 61 manifested in 2002 case no. K 38/01. If the Constitutional Tribunal grants this motion, the LAPI will become ineffective as regards to every record containing personal data of either private or public persons.
  6. The First President expects the Tribunal to declare Article 23 of the LAPI[25] unconstitutional on the grounds that the only criminal provision protecting citizens from a clear and present violation of the duty to disclose does not meet the standard for legal certainty required by substantive criminal law legislation. Here again it bears repeating that this allegation is not substantiated by any argumentation based on actual practice in this matter. Over the course of 20 years only a few mid- or low- level state officials were found guilty of this crime and none of them faced imprisonment. Derogation from this provision would translate – in practical terms – into a complete lack of enforcement of the LAPI by leaving the most obvious abuses of the right to know without any form of sanction.

Contact Author: Professor Michal Bernaczyk michal.bernaczyk@uwr.edu.pl

University of Wroclaw, Poland Faculty of Law, Administration and Economics

[1] Available at https://ipo.trybunal.gov.pl/ipo/view/sprawa.xhtml?&pokaz=dokumenty&sygnatura=K%201/21 [last visited: 28.12.2021]

[2] See also: Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, European Commission Press Release 22 December 2021, https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070 [last visited: 28.12.2021]

[3] Procedure established in Art. 191 sec. 1 of the Constitution of The Republic of Poland of April 2, 1997 is the equivalent of Art. 93(1) no. 2 of the German Basic Law.

[4] See ECJ Judgment of 15 July 2021 in Case C-791/19 Commission v Poland,

[5] Under Art. 8 sec. 1 of the Law on Petitions of July 11, 2016, the Supreme Court disclosed proactively the digital scan of the petition at URL http://www.sn.pl/informacjepraktyczne/SitePages/petycje.aspx [available in Polish; last visited: 22.12.2021], however the denial to withdraw the motion was not disclosed to the public and submitted solely to the petitioners’ representative (see footnote no. 6)

[6] Official notice on petition’s settlement issued by the First President of the Supreme Court Ms. Małgorzata Manowska no. BSA-I-055-233/21 of April 19, 2021, p. 2 [Zawiadomienie o sposobie załatwienia petycji BSA-I-055-233/21 z 19 kwietnia 2021 r.] available in Polish at Citizens Network Watchdog Poland https://siecobywatelska.pl/wp-content/uploads/2021/04/Odpowiedz-na-petycje.pdf [last visited: 22.12.2021]

[7] Michał Bernaczyk, The Constitutional Right To Information in Poland. Theory and Practice, International Comparative Jurisprudence 2019 Volume 5 Issue 1 ISSN 2351-6674 (available online at https://ojs.mruni.eu/ojs/international-comparative-jurisprudence/article/view/5051/4531 [last visited: 22.12.2021] )

[8] Marcin Wiącek, Pytanie prawne sądu do Trybunału Konstytucyjnego [Preliminary question to Constitutional Tribunal], Warsaw 2011, p. 38 and the doctrine cited there.

[9] In the reasons for judgment of March 20, 2006 (case no. K 17/05, see. sec. III.5.3.2.) the Constitutional Tribunal delivered the following interpretation of the Article 61 sec. 1 of the Constitution confronted with the same language of Art. 5 sec. 2 of the LAPI: (trans:) “In the Opinion of the Tribunal it is likewise not possible to unequivocally and precisely define the circumstances in which a person acting within the scope of a public institution may be deemed as performing a public function. Not every public person performs a public function. The performance of public functions is tied to the execution of specific tasks within the institution, within the scope of the structure of the public authority or or in another decision-making position within the structure of public administration as well as in other public institutions. Determining whether we are dealing with a public function should also include examining whether the person specified is also performing public duties within the scope imposed upon that public institution.  At issue here are entities vested with at least a narrow scope of decision-making as public institutions. Thus not every employee of such an institution will be a public official whose protected sphere of privacy may be lesser as regards a legitimate interest on the part of third parties  as conferred by the right to information. It cannot be stated that, in the case of defining a group of people whose private lives may be the legitimate subject of public interest, there is a single uniform mechanism or criteria to be fulfilled which could define the scope of the right to information. It would be difficult likewise to establish a general, abstract and thus closed list of this type of positions and functions Engaging in an effort to  characterize those attributes which will be determinative of whether a certain person performs a public function, it is generally safe to recognize that the positions and duties of which the performance is equivalent to engaging in activities directly affecting the legal status of other persons or is at least tied to the preparation of making decisions affecting others. Falling outside the scope of public functions are those positions which even if performed within the scope of public authority are by their nature to provide a service or are technical”(full opinion of the Constitutional Tribunal available in Polish at its data base, https://ipo.trybunal.gov.pl/ [last visited: 28.12.2021]).

[10] “Article 61 sec. 1 “A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury. Section 2 “The right to obtain information shall ensure access to documents and entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings“. Section 3: “Limitations upon the rights referred to in section 1 and 2 above, may be imposed by statute solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. Section 4: “The procedure for the provision of information, referred to in section 1 and 2 above shall be specified by statute, and regarding the Sejm and the Senate by their rules of procedure“.

[11] In its opinion of 16 September 2002 (docket no. K 38/01) the Constitutional Tribunal explained the extratextual context and principles underlying Art. 61: “The language of Art. 61 Sec. 1 relates to the longstanding, because it dates back to the 18th century, history of the evolution of the law governing public access to information. Issued on 25 November 1981, the Recommendation No. R (81) 19 of the Committee of Ministers to member states on the access to information held by public authorities articulates eight principles [https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804f7a6e ] for the guidance of member states: every person shall have the right to access information held by the public authorities; effective and appropriate means shall be provided to ensure such access; access shall not be refused on the gound that the requesting person has not a specific interest in the matter; access to information shall be provided on the basis of equality; only such limitations and restrictions on access to information necessary for the protection of legitimate public interest and for the legitimate protection of individual privacy; a request for information shall be deicided upon within a reasonable; the refusal of access to information must give the reasons on which the refusal is based; any refusal of information shall be subject to review. Art. 61 Sec. 1 of the Polish Constitution reflects these principles to the fullest extent possible” (full opinion of the Constitutional Tribunal available in Polish at its data base, https://ipo.trybunal.gov.pl/ [last visited: 28.12.2021]

[12] T. Moustafa, T. Ginsburg, Introduction of Courts in Authoritarian Politics (in:) T. Moustafa, T. Ginsburg (editors), Rule by law. The Politics of Courts in Authoritarian Regimes, Cambridge University Press 2006, p. 4.

[13] Agnieszka Wądołowska, Report identifies 187 state-linked lawsuits “harassing” media under current Polish government, 23 May 2021, https://notesfrompoland.com/2021/05/24/report-identifies-187-state-lawsuits-harassing-media-under-current-polish-government/ [last visited: 28.12.2021]

[14] Grzegorz Łakomski, Dworczyk was supposed to recommend how to <<delay>> disclosure on Prime Minister’s flights. We also asked about them, [Dworczyk miał radzić, jak “odroczyć” ujawnianie informacji o lotach premiera. Pytaliśmy o nie także my], 24 September 2021, https://tvn24.pl/najnowsze/afera-mailowa-i-loty-premiera-dworczyk-mial-radzic-jak-odroczyc-ujawnianie-informacji-5425490 [last visited: 28.12.2021]

[15] Statement by Discovery Inc. 12 August 2021, https://tvn24.pl/tvn24-news-in-english/lex-tvn-statement-by-discovery-inc-5190921 [last visited: 28.12.2021], Poland: Veto ‘Lex-TVN’ amendment to protect media freedom, 23 December 2021, https://www.article19.org/resources/poland-veto-lex-tvn-amendment-to-protect-media-freedom/ [last visited: 28.12.2021], Reporters Without Borders asks Polish president not to sign draconian “Lex TVN” bill into law, 24 December 2021, https://rsf.org/en/news/rsf-asks-polish-president-not-sign-draconian-lex-tvn-bill-law [last visited: 28.12.2021],

[16] See Notification of 12 applications concerning abortion rights in Poland, ECHR’s press release 217 (2021) 08.07.2021, https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7074470-9562874&filename=Notification%20of%20applications%20concerning%20abortion%20rights%20involving%20Poland.pdf

[17] In its ruling of 4 December 2001  (case no. SK 18/00) the Tribunal explained that “the concept of ‘public authority’ within the meaning of Article 77 sec.1 of the Constitution includes all authorities in the constitutional sense – legislative, executive and judicial. It should be underscored that the notion of an organ of the state and an organ of public authority are not synonymous. The notion of “public authority” also includes other entities than state institutions or self-governing entities to the extent that they carry out the functions of public authority by virtue of being entrusted with or endowed with any functions of a government or self-governing entities. The execution of public authority refers to all forms of state activity, of a self-governing territory and other public institutions engaged in very diverse activities. The performance of such functions is usually, although not always, with the power of the authority to shape the legal status of an individual. It pertains to the scope of activities which may result in the violation of the rights and liberties of the individual by the public authority”.

[18] Article 5 sec. 2 stipulates: “The right to public information is subject to restriction due to the privacy of a natural person or the entrepreneur’s secret. This restriction shall not apply to information on public functions which are related to the exercise of those functions, including the conditions for entrusting and exercising functions, and the case where a natural person or an entrepreneur waives the rights they are entitled to“.

[19] In its opinion of 20 March 2006, case no. K 17/05, the Tribunal noted that the scope of information on persons discharging public functions available under Art. 61 is not exactly the same as in the case of Art. 54 but the language of the opinion suggested a relation between those two provisions in a manner typical for positive protection of liberty:  “Some information concerning private sphere of a public figure relevant for the interest of the public may be disclosed, even if relation between information and the function performed does not exist, however the information remains important for assessment of such person’s behaviour, credibility or publicly presented opinion. Art. 61 of the Constitution [concerning “person discharging public functions” – M.B.] covers only  a ‘segment’ of the right to acquire information [right to acquire information is the exact wording used in Art. 54 of the Polish Constitution – M.B.] which remains in the correlative duty of a proper public organ to disclose it. Such duty does not encompass all  personal data of a person discharging public functions but only those which remain in connection with discharged function. From this point view both provisions [Art. 54 and 61 – M.B.] can be described as featuring a certain complementarity.

[20]No restrictions on access shall be made, except those subjected to the sec. 1 and 2, to information on cases resolved in proceedings before the authorities of the State, in particular in administrative, criminal or civil proceedings, due to the protection of the interest of the party, if the proceedings concern the authorities public or other entities carrying out public tasks or public functions, with regard to those tasks or functions“.

[21] ECHR judgment of 20 September 2018 (Solska and Rybicka v Poland, application nos. 30491/17 and 31083/17), p. 84.

[22] Magdalena Gałczyńska, Troll farm at the Ministry of Justice, or “we do not lock up for doing good” published by Onet.pl on 20 August 2019, avaiable in English at https://www.iustitia.pl/en/activity/informations/3241-troll-farm-at-the-ministry-of-justice-or-we-do-not-put-in-for-doing-good

[23] Dariusz Kalan, Perjured in Poland: false testimony in car crash case returns to haunt PiS, https://balkaninsight.com/2021/12/20/perjured-in-poland-false-testimony-in-car-crash-case-returns-to-haunt-pis/, 20 December 2021,

[24] Vanessa Gera, Frank Bajak, AP Exclusive: Polish opposition senator hacked with spyware, December 23, 2021, https://apnews.com/article/technology-business-middle-east-elections-europe-c16b2b811e482db8fbc0bbc37c00c5ab

[25]Who, contrary to his obligation, does not disclose public information, is subject to a fine, punishable by restriction of liberty or imprisonment by the year“.

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