Our litigation – sculpting the rule of law (reporting activities)

Within the past 15 years, we have participated in about 650 court cases. Some we initiated ourselves, some we supported, and some we joined. We have selected a number of examples, focusing on cases that have changed Poland. And how have we impacted Poland? We have changed it into a country where citizens have a chance to control their own lives and hold the authorities accountable for the way they govern and how they spend money from taxes.

Educating institutions to show commitment to transparency

The change regarding awareness of the right-to-information took effect most quickly at the local government and ministerial levels. However, there are many more institutions required to provide information. For many years we have worked to make them aware of their disclosure obligations.  We chose specific institutions – lobbyists representing the interests of local governments; political parties, social organizations, and monopolistic organizations. We were successful in winning our court cases against all of them. The cases concerned, for example, disclosing the opinion submitted by the Association of Polish Cities in 2011 during the legislative process to amend the act on the Sołcecki fund; disclosure of the budget of the Polish Football Association – a monopolistic institution partly financed with public funds  (though unfortunately we continue to deal with resistance on this issue); financial disclosures of political parties in the Sejm during the 2011-2015 term. We also worked to encourage publicly-financed organizations to be transparent. Our members have engaged in litigation with organizations. Today, all these institutions know that they are obliged to disclose information.

Companies belonging to the State Treasury, which generally hide behind the concept of trade secrets, continue to be a challenge. But we have had successes there too, such as in the case of TOK FM radio journalist Anna Gmiterek-Zabłocka gaining access to a contract from the Janów Podlaski stud farm. We managed to win the case in the first instance. Now we are anticipating further cases. We are waiting for a whole series of cases related to sponsorship agreements. The question is what initiatives companies support financially. We want this information to be disclosed. The lack of transparency means that the ruling party (which appoints its people to various boards and councils) is able to escape citizen control. Public companies are often used to develop cronyism.

Expanding the scope of transparency

We have also worked to ‘open’ new areas of concern. While in the beginning we sometimes had to complain about obstructed access to such obviously public information such as the minutes of municipal council meetings, we later stated to push into more sensitive areas.

For example, bonuses paid to employees of public institutions were an important topic. We have had many court cases in which the institutions claimed that this was not public information. This was the case with the Tax Chamber in Krakow (in January 2013, we inquired about the bonuses for heads and directors) and the Marshal of the Lower Silesian Voivodship (in a 2015 case). These institutions hid behind the argument that they have to protect employees’ privacy. Sometimes, too, they explain that compiling information on bonuses would be an excessive amount of work. In the end, we succeeded in developing the case law, according to which the names and amounts of bonuses paid to persons performing public functions are considered public information. Why it matters? Transparency helps in protecting from cronyism and misuse of public money.

Another important field was the disciplinary decisions of various groups on which the security, the rule of law and health of the state depend. Our own cases as well as our members’ cases regarding disciplinary decisions against legal advisors, bailiffs, notaries, lawyers, judges, pharmacists, and teachers have had positive results. We are still in litigation with the Voivodship Police Command in Kielce about disciplinary decisions against police officers from 2013 to 2015 (the rulings were made available but without data on the officers in question). The results of the case concerning disciplinary decisions issued in 2014 at the Customs Office in Gdańsk are similar (we also received anonymized data). However, the importance of the issue reaches both public opinion and that of decision makers. This was largely due to our network of allies and active people. For example, disciplinary decisions against prosecutors were important for editor Ewa Ivanova (a journalist at the Gazeta Prawna daily when she started her case). In 2014, she applied for a disciplinary ruling regarding a prosecutor in Białystok. It was a high-profile affair in which the prosecutor had dismissed a case regarding the promotion of fascism, recognizing that the swastika is a symbol of happiness in some cultures. As a result of the controversial justification for the dismissal, the prosecutor faced disciplinary proceedings, and many people were interested in the results of those proceedings. In the first instance, the courts found that, in accordance with the provisions of the then binding act on the prosecutor’s office, disciplinary proceedings against prosecutors and sentences adjudicated thereby remain secret and may only be disclosed in specific cases. At the cassation complaint stage, the law was changed, and the disciplinary judgments became legally public. Transparency of disciplinary proceedings increases accoutability of those who have a public mission and, as a result, safety of citiznes.

Other cases concerned the disclosure of contracts that hospitals conclude with doctors. For example, we won a case about access to doctors’ contracts with the district hospital in Nowogard and St. Wojciech’s Hospital in Gdansk. Civil oversight in this area can have a significant impact on the life and health not only of patients, but also of doctors. A year after our judgment in the Nowogard case, elsewhere in Poland, a 28-year-old doctor died on duty, perhaps from overwork. In turn, in Gdańsk we wanted to investigate whether the department head was employed full-time or part-time, and we were told that it was very much part-time. The disclosure of contracts may at least partly contribute to a well-informed debate about the quality of doctors’ working conditions and about our safety as patients. Especially that the topic is the subject of protests (at the end of 2017, medical residents – who then committed to work overtime – staged a hunger strike, precipitating a crisis in the health service).

A number of cases also concerned information relevant to specific topics, groups, or people. An example may be a request for 2017 information from the Mayor of the City and Commune of Lwówek Śląski. At the request of one of our clients, we asked for documents held by the Lwówek Regional Society concerning the destruction of rock formations in the ‘Lwówek Switzerland’ complex. People who are responsible for nature conservation require such information to carry out their work.

Rectifying the negligence of public institutions

The neglect of public institutions is a broad area for change. Here we have had variable success.

One of the biggest challenges is the publication of audit documents in Public Information Bulletins (PIBs). According to the Act on access to public information, the disclosure of such documents should be mandatory. However, the Act does not specify which audits this applies to – those conducted within a given entity, or also those conducted by said entity. In both cases, they demonstrate the quality of the work performed by the given institution. One of the first cases in this area was the case of the Lesser Poland Voivodship Building Supervision Inspector in Kraków, which did not want to provide audit documentation on request. Our request concerned many years of neglecting the Inspector’s disclosure obligations – from 2004 to 2011. Instead of complying to its obligations, the Inspector fought the case for two years, contesting that the information did not belong to the public. Our argument was that the information should have been published in PIBs much earlier. With our court proceedings, we wanted to encourage the Inspector to introduce a systemic solution in the future. We have similar, ongoing cases with branches of the National Health Fund (NFZ), which are reluctant to provide information about hospital inspections. Some, such as the head of the NFZ branch in Bialystok, still have not provided such information, despite legal rulings against them. And yet this information can have a direct and expedient impact on human life.

In turn, after working on the issue for fifteen years, court decisions have become transparent due to the change in general standards. This has not altered the fact that we have had to convince institutions to change their behaviour. In monitoring cases concerning access to public information conducted in common courts until the end of 2011 (since 2012 these cases have been tried in administrative courts), the President of the District Court in Ostrołęka did not want to provide us with information, claiming that would require too much work. It is worth adding that the number of cases was negligible, and the benefits of open case law offer the ability to understand judges’ reasoning; to formulate opinions on specific judgments; and mobilize judges to behave consistently in judgments and to prepare their judgments well. It is also an opportunity to build trust in the justice system and provides source material in creating new law.

Monitoring the correct implementation of laws

Using the law has helped us to strengthen the implementation of the act on the Sołecki fund (rural version of participatory budget). As soon as it was adopted in 2009, we considered the law itself as crucial to building a sense of agency and civic awareness in rural communities. It gave rural residents the opportunity to make binding decisions about some of the funds.

We filed requests for information to municipalities – asking for protocols and attendance lists at village meetings during which all eligible residents of the village could make a joint decision on granting funding. Our questions made decision-makers aware that village meetings should be treated as open, democratic decision-making process subject to civil oversight.

Through requests addressed to municipalities, we reminded them that they must have a discussion on whether or not to introduce a Sołecki fund every year. This discussion was important because it represented a chance to ensure that the fund was an opportunity for residents to talk about these issues with their councillors.

Finally, through complaints to the Prime Minister’s office, we ascertained that in 2012, the Central Statistical Office ‘forgot’ about the law and did not provide communes with data necessary for the implementation of the Sołecki fund, and the government resolved the problem.

We feel that the interest in the Sołecki fund and its proper implementation is largely the result of our work. We would measure it not so much in terms of increased interest, as in terms of reduced improper behaviour. In 2014, we identified only 95 communes (about 4%) that did not adopt the relevant resolution, whereas previously it was a common problem affecting a large number of eligible communes. We have also seen changes in how rural residents speak about the fund. While they initially asked what they could spend the funds on, over time they clearly declared that it was their money. If they turned to us for help, it was because they were aware of that and wanted to know how to deal with situations in which someone tried to decide for them.

Our experience with the Sołecki fund has shown us how important it is that every law intended to strengthen citizenship has its watchdog and how important the right to public information is in supporting the implementation of such laws.

Accounting for the truthfulness of public figures

The right to public information also serves as a check on the truthfulness of politicians. The history of the Anti-Corruption Coalition of Non-Governmental Organizations, of which we were a member, shows that citizens are a force to be reckoned with. In 2008, we jointly submitted a request for information regarding a special government program called the Anticorruption Shield, which Prime Minister Donald Tusk mentioned during the first 500 days of his government. It turned out that the information was secret, because it was mentioned during the meeting of the Special Services Board. Therefore, the Coalition asked for information on the order issued by the Prime Minister, believing that on this basis it would be possible to determine the nature of the Anti-Corruption Shield.  The information was only obtained in 2011, after three years of work. It turned out that the Anti-Corruption Shield program was based only on the conversation of the heads of the various services.

Another example is to investigate whether the expert opinions mentioned by former Minister of Foreign Affairs Witold Waszczykowski during a TV interview actually exist. At the end of the conversation, the topic of Donald Tusk’s election as President of the European Council in 2017 was raised. Commenting on the loss of the Polish government’s candidate, Jacek Saryusz-Wolski, the Minister said that “There has been a falsification. We have expert opinions today that Tusk was elected in a way that can be challenged at the level of European law.” We asked for access to such expertise. The case is ongoing, but the Ministry’s convoluted explanations and unwillingness to disclose do not inspire confidence in the actual existence of these mysterious expert opinions.

Public data

We have also devoted much attention to the issue of public data which should be available, but is not.  This may be due to the financial interests of the institutions that decide on such data, or the institutions’ reluctance to be accounted for.

In 2011, we became interested in access to data from the Institute of Meteorology and Water Management (public institution). As we learned from scientists who wanted to base their work on these data, depending on the university, the Institute made this data available for free or for very large fees. Moreover, the Institute obliged scientists to treat the data as confidential. As we soon established, this resulted from deliberately insufficient funds allocated to the Institute by the national budget, with the sale of data intended to complement this shortfall. We were charged three million Polish zlotych for our request for data. Efforts to change the situation took many years, finally leading to a positive conclusion in 2016, when the data was made public by entering the Institute by name into the law on the use of public information.

In turn, we supported another case concerning access to police data on safety.  The creator of the website dobraulica.pl planned to add a feature that would enable residents of Warsaw to find out what is  going on in their area – the number of  crimes on a specific street, how many cars were stolen in the previous month, how many attacks took place in the vicinity of schools, where aggressive dogs were registered, etc. Warsaw police impeded access to the data necessary to operate the portal. They only managed to get the data in court. Thanks to that our client was able to run a business.

Transparent legislation

One of the most important areas of our activities is the transparency of legislation. Civil oversight and understanding of the interests behind specific proposals are important for the implementation of just and necessary solutions. Unfortunately, in many cases it is difficult to obtain reliable documents which would allow us to ascertain whether the creation of law involved sufficient consideration, who was invited to prepare ideas, and who suggested the given solutions and why. This was the case in 2011, when we requested information about the actual authors of the amendment restricting citizens’ access to information. The amendment was an imprecise provision according to which citizens would not have access to information related to the management of public property, among other information. The wording of the provision would allow documents to be excluded for an indefinite period of time, by unspecified persons. Most scandalous, was the deception used by the ruling coalition in the creation of the law, specifically with regard to this provision. After rejecting it due to civic pressure while in the process of amending the Act on Access to Public Information, in the last moment before the election, the provision was re-introduced by the Senate in a slightly changed form. This constituted a violation of the legislative process, which was subsequently confirmed by the Constitutional Tribunal. In addition, the entire amendment was rushed through the legislature. The reason given was the implementation of the European directive on the re-use of public sector information. Poland was already significantly delayed in implementing this directive. However, this particular provision was not part of the implementation of the provisions of the Directive, with which all other proposals were associated.  We believed that actual authors would be disclosed if the public had access to the content of the emails of the prime minister’s advisors who worked on the amendment. However, the court case ended with a public defeat – the Supreme Administrative Court ruled that emails are not public information. This court ruling froze access to information in subsequent cases. One of the most important is the case regarding access to recordings from cameras belonging to the Marshal’s Guard. The courts have ruled that this is not public information. The recordings are important for determining the quorum during the passing of the budget act for 2017 and the law depriving people who worked for the security services of the Polish People’s Republic, of a large portion of their state pensions. Both laws were passed on December 16, 2016 amid great chaos, and there are doubts as to whether the attendance list matches the actual presence of MPs during the vote.

Another area of legislation concerns access to legal opinions. Initially, the courts gave decision-makers the opportunity to refuse access to opinions that were submitted in the legislative process. The ability to keep such opinions confidential was dependent on when they were created. The unfavourable case law arose during questions about constitutional opinions that President Komorowski was to follow when signing the law on the withdrawal of certain pension contributions from private hands to the public insurer. Over time, case law began to recognize that such opinions are public information.

On the other hand, we were able to ascertain the facts on another key issue – the draft Act on the Constitutional Tribunal of 2013. We won our court case against the Constitutional Tribunal. We asked about the bill that was drafted in this institution. It was submitted in the legislative as a presidential draft. However, we were concerned about the possibility that rules were circumvented and that the law was created by an institution that has no legislative power. Beyond that, we feared that this would lead to institutions judging the constitutionality of regulations of its own authorship. The case concerned the documents received by President Bronisław Komorowski from the Constitutional Tribunal. The President of the Court claimed that these were informal notes and did not want to make them available. Meanwhile, President Komorowski provided a document which he received from the Tribunal. It was a prepared draft of the bill. Although the result of the litigation did not affect the law itself, it became an important argument demonstrating how important it is to follow the rules in the legislative process.

The subject of legislative transparency is a challenge for at least five consecutive years. Our efforts include international recommendations regarding access to information. They concern access to ministers’ schedules, notes from meetings during which laws are, information about who visits ministries and what meetings take place therein. In the first fifteen years of our work, we found this to be the most difficult topic we have undertaken.

Public finances

Civil oversight of public spending is one of the great successes of our fifteen years of work. Even here, however, there are no shortage of issues.

Our successes include access to contracts concluded by public institutions or information about them containing contractor details, amounts, and tasks to be performed. Favourable judgments in this matter have been handed down since 2012, and citizens – including our members – urge public institutions to actively publish contract records in their Public Information Bulletins. And although this still does not apply to all institutions, many of them are making changes. We can point to the initially resistant National School of Judiciary and Public Prosecution, the Office of Competition and Consumer Protection, the Fryderyk Chopin National Institute, and various voivodeship offices. In this respect, the culmination of a significant change was the publication in late 2017 of the register of contracts by the Supreme Court in response to a petition submitted by the Watchdog Poland and over a hundred young people. The Court had previously long refused to make contracts available to us, to other active citizens, and to the eState Foundation.

It is also possible to obtain significant information about how public money is spent on grants. Here too we struggle with difficult cases, for example the case of the foundation of influential priest Tadeusz Rydzyk. The project entitled ‘A model of transparency in Poland,’ financed from public money and aiming to influence the shape of the law, is also a significant negative example. The project leader was also a public institution – Cardinal Stefan Wyszyński University, with participants including the Supreme Administrative Court and the Prosecutor General’s Office. Despite this, the project contract – with the cost of a few million Polish zlotych – was not made available by the co-financing institution (the National Centre for Research and Development) or by the project leader. We did not win our case against the institution which provided funding, but we hope to win against the Rector of Cardinal Wyszyński University. 


Graphics: Areta Wasilewska-Gregorowicz

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