If we want to know what the government is doing, we must have access to all documents concerning its functioning, not just the ones it wants to show us.

The European Court of Human Rights has just announced that it has accepted complaint No. 10103/20 lodged by Sieć Obywatelska Watchdog Polska (the Citizens Network Watchdog Poland) regarding the violation of freedom of expression. In it, we complain that the refusal to provide access to information regarding meetings between Julia Przyłębska, President of the Constitutional Court, and Mariusz Muszyński, Vice President of the Constitutional Court, constitutes a violation of the right to freedom of expression. The ECHR asks whether this interference with freedom of expression was necessary. It cites as a model standard its ruling concerning the case of the Hungarian Helsinki Committee v. Hungary. 

Why should we have access to the calendars?

When we sent our request for information to the Constitutional Court, information appeared in the media about visits of the Coordinator of Special Services, Mariusz Kamiński, to the seat of the Constitutional Court. This took place in the period preceding the examination by the Court of the constitutionality of the anti-terrorist act and principles of applying operational control. Ultimately, substantive examination of the case did not take place, as the applicant for the examination by the Court, the Ombudsman, withdrew his application. He pointed to the manipulation of the composition of the court and the appointment of so-called double judges to examine the case, including Mariusz Muszyński, whose calendar we requested (Letter of withdrawal, Ombudsman). As a reminder, in 2021, the European Court of Human Rights held that a composition containing an improperly appointed judge (“double judge” elected to fill an occupied position) does not provide a guarantee of a fair trial [Xero Flor sp. z o.o. v. Poland (4907/18) judgement].

Moreover, as reported by the media, Mariusz Kamiński, the Coordinator of the Special Services, was also said to had looked through the personal file of the wife of judge Łączewski, who had worked in the Constitutional Court and who sentenced Mariusz Kamiński to three years in prison without suspension for exceeding his powers in one of the cases handled by the Central Anti-Corruption Bureau when Kamiński was its head. Mariusz Kamiński was pardoned by the President of Poland before the appeal hearing took place. However, at the request of the aggrieved parties, the seven-judge Supreme Court held that the President had no right to do so at this stage of the case. The Constitutional Court received a request from the Speaker of the Sejm asking whether the President has the right to pardon on his own and whether this right is subject to judicial review. After 2017, nothing has happened in the Court.

Moreover, in response to a request for access to public information submitted by a private individual, the Constitutional Court allegedly stated that “Mr Mariusz Kamiński, the Coordinator of the Special Services, paid a courtesy visit to Ms Julia Przyłębska, President of the Court, in mid-January. The purpose of the visit was to offer personal congratulations on her appointment as the President of the Court.” Soon after taking office, President Przyłębska changed the composition of the Constitutional Court in over a dozen cases, including the one mentioned above, concerning the powers of the special services. 

What is the case of Sieć Obywatelska Watchdog Polska v. Poland about?

Watchdog Polska requested the calendars of Julia Przyłębska and Mariusz Muszyński, who at the time of the request were acting as the President and Vice President of the Constitutional Court respectively. We asked about the period from 1 January 2017 to the date of the request – 6 July 2017.

In response, we learned that these calendars do not constitute public information.

The calendar of meetings is not an official document and does not constitute public information within the meaning of the Act of 6 September 2001 on Access to Public Information.

Complaining about this response, Sieć Obywatelska Watchdog Polska pointed out to the Voivodship Administrative Court that this response constitutes a violation of Article 10 of the European Convention on Human Rights. We argued that knowledge about the actions of those who decide about the actions of the Constitutional Court and possibly have frequent contacts with the ruling party is important from the perspective of civil oversight and preserving the tripartite division of power. We also provided a printout of one of the press reports confirming possible government contacts exceeding the standards that should apply in a democratic state under the rule of law. 

The Applicant is aware of the decisions of the administrative courts and the Supreme Administrative Court which, referring to a construction of the so-called internal document unknown to the Act, hold that the calendars of persons occupying certain positions in public authority bodies do not constitute public information. The Applicant, however, has consistently taken the view that those judgements are erroneous. This position gains relevance given recent newspaper articles [here we cited an attached press source – Watchdog Polska’s note] concerning alleged meetings of the President of the Constitutional Court and the Vice President of the Constitutional Court with the president of the ruling party that supposedly took place in the party’s headquarters. If, following the decisions of the administrative courts in question, it was to be held that meeting calendars constitute an “internal document” which is not subject to disclosure as public information within the meaning of the Act on Access to Public Information, the consequence of such a position would be to prevent citizens from exercising civil oversight of public authorities and, in this case, over the maintenance of the fundamental principle of the tripartite division of power.

[author’s emphasis]

The Voivodship Administrative Court did not address the arguments we had raised. Instead, it repeated earlier rulings by administrative courts which we have known for years and which do not follow from the law (II SAB/Wa 493/17).

… the calendar of meetings of the President of the Constitutional Court insofar as it relates to the performance of duties concerning the Constitutional Court – from 1 January 2017 to the date of execution of the request, and the calendar of meetings of M. M. insofar as it relates to the performance of duties concerning the Constitutional Court – from 1 January 2017 to the date of execution of the request, do not constitute public information. The calendar is not an official document, it is not a declaration of intent or a declaration of knowledge, nor is it addressed to any other entity or placed on any case-file.

The calendar of the President of the Constitutional Court and the calendar of meetings of M. M. are working, office items. It is helpful in the implementation of public tasks, however, it serves only to organise work, but does not determine the directions of the authority (v. judgement of the Supreme Administrative Court of 13 June 2014, ref. no. I OSK 2914/13). This calendar was not created for use by outside entities.

…

In the Court’s view, given the fact that the information requested was not created for the public purpose referred to in the Act on the Re-use of Public Sector Information, the authority handled the request submitted by Watchdog Polska properly, invoking the Act on Access to Public Information, within the statutory period of 14 days set forth in Art. 22 par. 1 of the Act. In this state of affairs, it was correct for the authority to notify the applicant by letter that the information requested does not constitute public information, which is tantamount to stating that it does not constitute public sector information within the meaning of the Act on the Re-use of Public Sector Information, and this means that the complaint was unfounded.

[author’s emphasis].

We filed a cassation appeal against this decision, repeating the arguments presented and adding a short, but crucial polemic with the interpretation of the Voivodship Administrative Court that only official documents constitute public information. 

Firstly, in accordance with Art. 1 par. 1, Art. 6 par. 1 section 2 letter d) and Art. 6 par. 1 section 4 of the Act on Access to Public Information in connection with Art. 4 par. 1 section 1 of this Act, all information concerning persons performing functions in public authority entities as information on public matters, and not only official documents within the meaning of Art. 6 par. 2 of the Act, is subject to access. Therefore, the requested meeting calendars constitute public information and should be made available.

The Supreme Administrative Court repeated what it always says: 

These issues have already been the subject of numerous rulings by the Supreme Administrative Court. In its numerous judgements, creating a uniform line of rulings, the Court takes the position that both the information concerning the calendar of meetings and the documents registering the persons entering and leaving the building should be qualified as internal documents. The requested calendar of meetings of persons holding certain positions in the Constitutional Court does not relate to the public activity of the Constitutional Court and as such does not contain public information. It is at most an office, working, auxiliary tool, facilitating the organisation of the authority’s work, serving the implementation of public tasks by the authority only in an indirect way. Placing the date of an event in the calendar is of a purely technical nature and does not certify facts, i.e., whether it did or will take place. It does not, therefore, relate to the sphere of facts, since the manner in which it is conducted does not provide corroboration of the information it contains. The Supreme Administrative Court in the judgement of 13 June 2014, ref. no. I OSK 2914/13 stated that the calendar of meetings should be qualified as internal documentation.

[author’s emphasis], (I OSK 2893/18)

Why does the Citizens Network Watchdog Poland seek protection under international law?

Watchdog Poland has decided that in this situation the right of citizens to reliable knowledge about the exercise of power, whether it is free from hidden lobbying and contacts that go beyond the standards of independence of authorities is under threat, and filed a complaint with the European Court of Human Rights. In recent years, the public opinion has received a number of new signals about Julia Przyłębska’s meetings with the ruling camp. However, all of this information came from informants, was piecemeal and easy to challenge in public debate. Thanks to court rulings, the government has known for years that it is, in practice, not subject to scrutiny regarding this issue. This has implications for how power is exercised. Even if it is not the only factor, the authorities are increasingly often reaching for the “you cannot know that because it is an internal document” response. The government defines what an internal document is and the courts often agree.

Meanwhile, in the Polish Act on Access to Public Information, there is no mention of an internal document or exclusion of this type of documentation from transparency. Nevertheless, the public authorities impose such restrictions, taking advantage of the case law favourable to them in this respect. However, it is not a source of law. This is also how we argue the complaint to the European Court of Human Rights.

Citizens cannot be condemned to official announcements such as “last month the President of the Constitutional Court had one meeting with government representatives”. The expectation of source knowledge of what authorities do within the scope of their powers is perfectly legitimate in a democratic state under the rule of law, where citizens have a right to information. The Polish system does not protect this right, and the rulings in question just follow others to which we are already accustomed. 

Therefore, this case is not only about the calendars of the two incumbents of the Constitutional Court, but about the problem of the well-established line of case-law. The courts do not acknowledge that this line is not based on existing legislation and expect the public to challenge their line while responding with “but that is the established line”. It is a vicious cycle. We hope that the European Court of Human Rights will support the process of restoring the protection of the right to information in Poland. Communicating the case does not yet mean the end of the procedure, let alone winning, but it is a great opportunity for Polish citizens. Although only a small percentage of cases reaches this stage of the procedure. A decisive stage of the dispute lies ahead.

Dispute over “internal document”

On the grounds of the Constitution of the Republic of Poland, in many cases the courts have stated that the right to information covers all information, and the role of the administration is to determine on the basis of Article 61 par. 3 of the Constitution whether there are no exclusions of transparency in acts (among others the judgement of the Supreme Administrative Court of 20 January 2012, ref. no. I OSK 2118/11, the judgement of the Supreme Administrative Court of 29 February 2012, ref. no. I OSK 2215/11, the judgement of the Supreme Administrative Court of 1 December 2011, ref. no. I OSK 1516/11, judgement of the Supreme Administrative Court of 1 December 2011, ref. no. I OSK 1550/11). However, in other cases the courts have held that various types of information constituting so-called working, internal, technical documents should be excluded from the scope of the right to information. This dispute is also evident in academic publications and judicial pronouncements:

• Sędzia NSA: ustawa o dostępie do informacji publicznej musi być zmieniona [Supreme Administrative Court Judge: the Act on Access to Public Information Must Be Amended] (https://www.prawo.pl/prawnicy-sady/sedzia-nsa-ustawa-o-dostepie-do-informacji-publicznej-musi-byc-zmieniona,47370.html): “[Journalist] However, there is no such restriction in the Act. [Judge]: True, I am personally in favour of such a provision. In this respect, case law has so far coped by applying the term ‘internal document’. Such a document – according to the case law – is not public information and therefore cannot be made available. Of course, we are aware that this interpretation is highly criticised by a group of constitutionalists, defenders of the right to information. However, I think this is often due to a lack of familiarity with the practical realities.”
• M. Jaśkowska, Dostęp do informacji publicznej w orzecznictwie sądów administracyjnych (wybrane problemy) [Access to public information in the jurisprudence of administrative courts (selected problems)], “Zeszyty Naukowe Sądownictwa Administracyjnego” [Research Journals of the Administrative Courts] 2014/1, p. 9: “In my opinion, under the Act on Access to Public Information, there is no legal basis for singling out so-called internal documents that generally exempt authorities from the obligation to provide information. This is evidenced, for example, by the regulation of the so-called Rocki Amendment [poprawka Rockiego].”
• M. Jabłoński, „Dokument wewnętrzny” i jego udostępnienie na podstawie Konstytucji RP oraz ustawy o dostępie do informacji publicznej [“Internal document” and its accessibility on the basis of the Constitution of the Republic of Poland and the Act on Access to Public Information], in: Aktualne wyzwania ochrony wolności i praw jednostki. Prace uczniów i współpracowników dedykowane Profesorowi Bogusławowi Banaszakowi. [Current challenges of protecting individual freedoms and rights. Works by students and co-workers dedicated to Professor Bogusław Banaszak], Wrocław 2014, p. 100: “However, if – as is the case at present – there is no reference at all to the ‘internal document’ expression as defined by law, then, despite the belief in the rationality of excluding a certain sphere of information concerning the activities of state (more broadly public) authorities and other obliged entities, doubts about the legality of excluding the scope of the exercise of the right of access to public information are justified. Such a practice not only seems contrary to the content of Article 61 of the Constitution of the Republic of Poland, but is also illogical in view of the established principle of statutory definition of exceptions to the rule, according to which it is presumed that any information relating to the activity of the obliged and held by them is public information. Access to such information may be restricted but should not be excluded.”

The reference to the biginings of the Watchdog Poland’s requests for calendars of polititians appear in the interview for Gazeta Wyborcza (2014). It has been translated into English.