The Provincial Administrative Court in Warsaw ruled that the source code of the Random Case Allocation System in common courts does not constitute public information. According to the court, overseeing the functioning of tools used by the administration is not the role of the society but of professional bodies.
The introduction of computer random allocation
On 12 August 2017, the Act on the system of ordinary courts came into effect, introducing the system of random judge selection in common courts.
The method of randomly assigning cases, in accordance with the amended Act, is determined by the Minister of Justice through a regulation, allowing for the principles of efficiency, rationality, economic and speedy proceeding, and the need to ensure reliable performance of tasks entrusted to courts, as well as the need to ensure even and objective allocation of duties to judges, associate judges, and court clerks, ensuring a similar probability of participation in a large panel, the use of IT solutions for the random allocation of cases, and use of other methods of random allocation of cases if there is no possibility of using these solutions.
And so, in accordance with § 43 (1) of the Regulations of operation of common courts, cases are allocated to clerks (judges and associate judges) randomly, in accordance with the agreed upon division of activities, by an IT tool operating on the basis of a random number generator, separately for each repertory, register or another recording tool, unless the provisions of this Regulation provide for other rules of allocation. The IT allocation tool shall not be used if only one judge or associate judge participates in the allocation of cases of a given type.
Earlier case allocation rules
This does not mean that the previous law permitted complete freedom in case allocation.
Before the introduction of the random allocation system, cases in sections had been assigned by the order in which they were received by the court, possibly the group of judges could be narrowed down by their specialisation (§ 45 of the Regulations). A more detailed regulation concerned criminal cases. In accordance with Article 351 of the Code of Criminal Procedure, no longer in force (provision repealed by the amendment introducing the random allocation of cases):
- A judge or judges appointed to adjudicate in the case shall be designated in the order in which cases are received and based on a list of judges from the given court or section that is open to the parties. A departure from this order is permitted only due to a judge’s illness or for another important reason, which should be indicated in the order scheduling the trial.
- Where the indictment includes a charge of a crime carrying a penalty of 25 years of imprisonment or life imprisonment, the adjudicating panel is appointed at the request of the prosecutor or defence counsel through a draw at which they have the right to be present. The prosecutor may submit a petition no later than within 7 days after the indictment has been submitted to the court, and the defence counsel – within 7 days from the service of a copy of the indictment.
- The Minister of Justice shall specify in a regulation the detailed principles of appointment and drawing of the adjudicating panel, taking into account the need to guarantee an equal probability of participation in the adjudicating panel in each case to all judges of the given court or section.
Application to provide access to the source code of the “lottery machine”
The Citizens Network Watchdog Poland turned to the Ministry of Justice, requesting access to the source code of the Random Case Allocation System. We received a reply that it was not public information. In response to an appeal, an argument was put forward that the source code is a term from the area of IT and programming, and access to it gives a programmer the ability to learn the detailed structure of all elements of the IT system and their replication or modification; the creators of source codes do their utmost to keep them confidential because of the security and integrity of computer programs.
Judgment dismissing the complaint
The Provincial Administrative Court in Warsaw in its judgement of 11 December 2018 (II SAB/Wa 502/18) dismissed our action for failure to act against the Ministry of Justice, concurring with the authority’s position at the same time.
As regards legal matters, the Provincial Administrative Court in Warsaw indicated in the statement of reasons for the judgment that:
(…) information concerning the principles of functioning or organisation of the authority – and information concerning the source code is exactly that – is of technical nature. In accordance with the established judicature, this type of information does not constitute public information.
(…) a source code is only a technical element of data processing, and the main use of a source code is the expression of computer programs in a comprehensible form, it should be stated that it constitutes only a tool used in computer programs, without containing any message about public matters.
(…) the requested source code is also covered by the copyright protection (…), which is an argument against treating it as public information.
The adjudicating panel decided that the disclosure of the judge drawing algorithm may cause someone from outside to interfere in the draw results and thus limit the judicial independence. In other words, the court believes that citizens may in an irresponsible way use the information entrusted to them and because of this it is not them that should scrutinise the work conducted by the administration but specialised organisational structures within the administration itself (in the form of audits which can in general be made available publicly), or by specialised external institutions specially appointed for this purpose, such as e.g. the Supreme Audit Office (NIK).
We will submit a cassation appeal
We cannot agree that the source code of the Random Case Allocation System is not public information. Contrary to the court’s claims, it carries information about public matters. In our opinion, it is not only not dangerous for the society to have access to the code, but it is necessary to hold social control over the operation of the system. It is the right to public information that allows maintaining that control and it is not only the specialised services’ domain.
Journalist Ewa Ivanova also wrote about the judgment in “Gazeta Wyborcza”: Random judge allocation program will remain secret. According to the court, the disclosure of its code would threaten security