One of the goals of the draft Act on Openness of Public Life presented by Minister Kamiński (coordinator of special intelligence services) on October 23^rd, 2017 is increasing the openness of the legislative process. Such idea may only be applauded, unfortunately the Minister misdiagnosed problems of the transparency of legislative processes, and the Act picks the wrong measures to resolve them.

The draft focuses on people and organisations

The draft Act presented, places a huge emphasis on disclosing information about persons and entities taking part in the work on a draft public act or document. When participating in such work (e.g. submitting demands concerning specific solutions, such as openness of operation of public authorities), we must fill in a special application. If we are an association, foundation, organisation of employers or another social or professional organisation, we enclose the list of entities financing our statutory activity, including the name (business  name) of the financing entity and its tax identification number (NIP) or first name and surname of the natural person if it does not conduct business activity. The entities which in the course of the year made payments in the amount exceeding the minimum monthly remuneration for work (during the period of 12 months preceding the application). Currently it is PLN 2,000 (less than EUR 500).

When a natural person, operating in its own name, who is not a professional lobbyist or an attorney of a professional lobbyist, is interested in the work on a legislative draft, they enclose the list of income with the indication of financing entities for the period of two years preceding the notification.

In each of these two cases, the person signs the lists of income and proceeds, with the stipulation that they shall bear criminal liability if they give a false testimony.

The criminal liability is the more important here as it is very easy to make a mistake. If the natural person conducts business activity (the so-called sole-trader), then the tax identification number (NIP) should be provided. Often it is impossible to determine whether the donor who supports the organisation is an entrepreneur or not.

The above regulations will effectively discourage citizens and organisations from becoming involved in the legislation work if this involves the need to each time present the source of income.

It could be considered whether those charges are adequate and proportionate for the goal they are to achieve – the openness of the legislation process. The draft presented does not offer any field for such considerations and discussions about proportions, because the legislative principle is pointed in the wrong direction. It is aimed at those citizens who want to have influence on the legislative process, and it has nothing in common with increasing transparency of the entire process of creating new regulations.

What is the situation like as regards the availability of important information for the openness of the decision-making process?

However, problems concerning the openness of the legislative process are not where the draft Act diagnoses them to be. The most important ones we have encountered in the recent years are:

• problem with availability of legal opinions, ordered by public authorities for the purpose of decision-making with regard to the legislative process – the judicature of administrative courts presents the view in accordance with which not all opinions ordered by the authorities constitute public information (more in: Will we finally learn the contents of expert opinions concerning open-end pension funds? Win against the President’s Chancellery) – for example this refers to legal opinions concerning the open-end pension fund matter, legal opinions ordered by the President’s Chancellery with regard to the Constitutional Court crisis, or legal opinions of the Minister of Foreign Affairs with regard to the appointment of Donald Tusk as the Chairman of the European Council,
• first names and surnames of authors of legal opinions ordered by public authorities (in the judicature of the Supreme Administrative Court it is assumed justifiable to reduce availability of the information due to privacy of natural persons (see also: Will we finally learn the contents of expert opinions concerning open-end pension funds? Win against the President’s Chancellery ), A. Pytel, Public correspondence of the person carrying out public tasks as public information. Critical commentary to the judgment of the Supreme Administrative Court of 18 September 2014, I OSK 3073/13, [in:] Commentaries to selected judgments concerning the right to information, edit. S. Osowski, B. Wilk, Warsaw 2016,
• e-mail correspondence of officials, concerning legal changes (Our commentary to the matter of officials’ e-mails – what did the Supreme Administrative Court actually resolve?),
• schedule of entries and exists to and from the Ministry (e.g. judgment of the Supreme Administrative Court of 2 December 2015, I OSK 2337/15),
• schedule of meetings of persons holding public functions (Secret schedules but open meetings).

The availability of this information would allow the gradual reconstruction of the impact of individual persons, institutions and other entities on the legislative process, including in particular individual regulations and changes of the provisions planned in the course of the proceedings. It is in the privacy of offices that the most important decisions concerning the proposed regulations are made.

Legislative work of 2011 on the draft Act amending the Act on Access to Public Information (in connection with the implementation of the Re-Use Directive by Poland) constitute a good example. The contents of the regulations was there determined in a closed mailing group, coordinated by the Ministry. The application put forward by the Watchdog Poland and then the unfavourable judgment by the Supreme Administrative Court concerned the provision of access to that very correspondence.

However, if the person or organisation applies for the provision of the above information, they will be refused and they will decide to bring an action before the court – and lose. Polish administrative courts in this respect do not protect right to information. This does not mean that this is an unescapable situation. We can see three possible solutions here:

• change of practice of operation by public authorities,
• change of approach by administrative courts (which is difficult to achieve but what we are fighting for),
• change of legal regulations.

We have already applied to the Ministers with applications to adopt solutions supporting openness of the decision-making process

The decision-making process (including the legislative process) constitutes an important subject examined at the European level and at the level of Member States. On 28 September 2017, during the conference organised for the International Right to Know Day, a position was adopted in accordance with which the decision-making process should be open and allow accountability. In the description of this paragraph it was pointed out that:

(…) the decision-making process should be documented and authorities should actively publish information, including minutes of meetings, information materials, legal opinions and results of scientific research, taken into consideration during the decision-making, and the underlying data.

The above observations are also connected with the Decision-Making Transparency project conducted by Access Info Europe, in which the Watchdog Poland was a partner.

As a result of activities under the project, but also our earlier experiences and diagnosed problems, we submitted an application within the meaning of the Code of Administrative Proceedings to all ministers, in which we turned to them to introduce solutions supporting transparency of the decision-making process and its documentation in individual ministries. We sent the applications on 14-15 October, i.e. even before the draft Act on Openness of Public Life appeared. We still have not received an answer.

The proposals concerned the publication of the following information in the Public Information Bulletin (BIP):

– schedule of the Minister’s meetings,

– information about meetings of Ministry employees with external entities (round tables, expert groups, working groups, etc.;)

– publishing information about the possibility of taking part in the work of such groups meeting in the ministry,

– publishing notes from meetings of expert, working groups, etc.,

These are activities focused on changing the operating practice of the administration.

Wasted opportunity – imposition of the obligation to create such information and to publish it

Although judicature with regard to the issues presented may be currently deemed established, it is still possible that the approach of administrative court judges to openness will change. For this reason, the Watchdog Poland has been initiating further, similar cases, in order to provoke reflection and present further arguments in support of openness. Some of them are more apparent now than before due to the extensive actions of the current government, damaging institutions which constitute the foundations of a democratic state. Some legal and institutional changes are conducted rapidly, which underscores the importance of civic oversight at every stage of creation of law or decision making.

Another possibility for prevent problems with openness of the decision-making process is to changing the law. The draft Act on Openness of Public Life provides for obliging public finance sector units (by the way, it is a drawback that this does not refer to all entities obliged to provide public information) to update monthly the register of contracts concluded and to publish that register online. However, the opportunity for obliging public authorities to publish other documents has not been used.

The publication of, among other things, schedules of meetings held by representatives of public authorities, legal opinions commissioned by public authorities together with names of their experts, or entry/exit logs from public buildings would be important for the openness of the legislative process. Such legal regulations would put an end to judicature which is adverse for openness – it would became inadequate in connection with the introduction of the statutory obligation to publish it. On the other hand, the obligation to place such data in the Public Information Bulletin (BIP) would cause public offices to records such information, which would have a positive impact on the documentation of decision-making processes.

The regulation proposed by Minister Kamiński imposes obligations on persons who want to influence public authorities with regard to decisions made. Our experiences show that the problem lies elsewhere – in the openness of activities and the related accountability of persons who are to be lobbied. This issue remains untouched by the regulations planned. It is necessary due to the lack of openness in this sphere of decision making, and appropriate regulations would not constitute an inadequate and disproportionate strike against persons and organisations involved.

(State of play till November 6th, 2017. Government without explanation stopped working the on the draft law in January 2018)