Problems with Freedom of Information in 2021 – state of play

The biggest problem in access to information was the situation on the Polish-Belarusian border and the introduction of the state of emergency. On the one hand, the regulation on the state of emergency restricted the Act on Access to Public Information, access for journalists and activists for 3 months (September-November 2021), and then the amendment to the Act on the State Border introduced provisions providing for the possibility of introducing a temporary ban on staying in a specific area in the border zone adjacent to the state border, which is the external border of the Schengen area. This temporary ban can be imposed by the Minister of Internal Affairs and Administration from day to day. 

On the other hand, it was possible to receive information on official requests. However, it was either evasive or simply untrue. In any case, the information received differed from the observations of people at the border or organisations obtaining information in other ways. 

For example, it was not possible to find out the orders intended to be the basis for the non-acceptance of requests for international protection and the ban on serving food. This is a situation even before [19.08.2021] the state of emergency [02.09.2021], when activists, media, politicians or the Ombudsman were at the border. An MP of the Razem political party, Maciej Konieczny, made the video. On the video, he reports:

[0:23 – 0:26] We spoke to the commander, he insists he has orders “from above” and can’t do anything.

[1:16] the person in the video shouts I want international protection.

Further information from the MP Konieczny concerned the alleged ban on serving food.

There was an order from above that these people cannot be given food, said in the “Graffiti” program Maciej Konieczny (left wing), who supports Afghans on-the-spot in their efforts to obtain international protection. 32 migrants from Afghanistan have been camping for 11 days near the Polish border in Usnarz-Górny (Podlaskie Voivodship). Everyone wants political asylum in the country.

However, both the local Border Guard units, as well as their General Headquarters and the Minister of Internal Affairs and Administration, claim that they have no information about such orders (this is according to answers to requests of the Citizens Network Watchdog Poland – sent on August 23, 2021). Another question from the Citizens Network Watchdog Poland (sent on August 25, 2021) about not allowing humanitarian aid and lawyers to refugees was answered: the foreigners were staying on the territory of the Republic of Belarus, which makes it impossible to undertake any intervention by the Polish forces. Meanwhile, a digital investigation by Amnesty International revealed that migrants were repeatedly found on the Polish side.

In addition, Polish institutions constantly use solutions that are inconsistent with the law or use undefined legal provisions. These include:

  1. Failure to document their own actions, among other things, so that they do not have to respond to requests. For example the Medical Council at the Prime Minister of the Republic of Poland does not document its work, and influences decisions made in connection with the COVID-19 pandemic or it does not influence them (which is also very important information about how decisions are made by those in power)
  2. The argument about processing of information (such a provision exists in the Polish Act on Access to Public Information) is often used. Processed information is one that requires effort to analyse various information to create qualitatively new information. In this case, applicants must demonstrate a particularly compelling public interest. However, whether such an interest exists is determined by those obliged to provide the information. And so it has come to the point where citizens can find out, for example, about what the President of Poland is doing only from his official website. This is because at the end of 2021 there was a ruling by the Supreme Administrative Court regarding information about what the President does. According to his Office, preparing this information would require undue effort on the part of the President’s staff. The court agreed with that explanation.
  3. Another argument used by public institutions is the recognition that the requested document is an “internal document.” Such a provision does not exist in Polish law, but has been introduced by judicial decisions. According to the judicial decisions, such an internal document is the calendar of a person holding high public office. In 2021, the European Court of Human Rights has communicated to Poland the case on the calendar of Julia Przyłębska, the President of the Constitutional Tribunal.
  4. It often happens that, in local activities, active people and organisations are accused of abusing the right to information. Citizens, according to their critics, ask too many questions and for the wrong purpose. Such a concept does not exist in Polish law, but it has been introduced by obliged entities and judicial decisions. This constitutes a huge problem for civic participation. 
  5. In addition, there are many situations when obliged institutions simply do not respond and groundlessly invoke the protection of other rights, which significantly delays access to information.

The attitude of obliged entities to the right to information is best demonstrated by one of the emails “leaked” from Minister Dworczyk’s mailbox (The mailbox maintained on the free portal was probably hacked by hackers from Russia or Belarus. They are now gradually publishing the content on the website This serves to destabilize the situation in Poland. However, it is difficult to deny much information a high probability of authenticity).

The email, leaked in September 2021, is a conversation from 2018, during the scandal over the use of government planes for private travel. The interview is conducted by senior government officials:

Dear Colleagues,

we are swamped with a stack of parliamentary and journalistic questions about the lists of people accompanying PMM [Prime Minister Mateusz Morawiecki] on flights. It’s a political decision. We have the following solutions:

  1. We can give it
  2. Defer it – (processing of information, etc.) and give it after the election
  3. Not give it based on far-fetched legal expertise – GDPR, etc.
  4. Maybe someone has another idea? 

Additionally, 2021 was dominated by the case of the First President of the Supreme Court, Małgorzata Manowska’s application to the Constitutional Tribunal to declare a number of provisions of the Act on Access to Public Information unconstitutional.

The hearing to consider this application has already been scheduled twice and cancelled twice. The formation of the Court for this case has changed three times, with the third time unexpectedly the entire formation is to try the case. This will probably open the way to the European Court of Human Rights, as it will be an improperly appointed formation (in the Constitutional Court there are so-called “double judges”, i.e. judges appointed to seats already occupied).  You can read more about the application and the situation surrounding it in a memorandum of prof. Michal Bernaczyk addressed to a foreign audience, in English.

Update: on January 19, 2022, the Supreme Court ruled that the ban on access of journalists to the emergency state’s territory was unproportionate and unlawful.

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