By conducting legal considerations about whether something is or is not public information, we lose the essence of transparency. This is neither necessary from the point of view of the law applied in Poland nor in accordance with the standards set by the European Court of Human Rights.

Polish laws on the right to information

Transparency is implemented in Poland thanks to the Act on Access to Public Information. In my opinion, this act meets international standards and, at the time when it was created, was ahead of its time. Its creators, at the beginning of the century, have visionarily assumed that access to information should also be provided on the Internet, the authors of the information should be known and requests should be free of charge and anonymous. The fact that the act is so widely criticized by the administration shows how much it contributes to the realization of the rights and freedoms of the individual, which are the object of this regulation.

However, like every story, this one also has a different side. I call this the trap of “public information”. Instead of just applying the right to know, we focus on searching for the answer to the question of whether something is or is not “public information”.

The right to information (public) is contained in the Polish Constitution in article 61. The construction of this regulation is quite unambiguous. Paragraphs 1 and 2 specify the material scope of the right to information. Paragraph 3 contains grounds for limiting this right. Paragraph 4 is an instruction for the legislator to specify the modes of sharing information referred to in paragraph 1 and 2. The act (acts) may specify the modes of access to information (paragraph 4) and its restrictions (paragraph 3). However, the legislator can not specify that a particular information is not public information.

In retrospect, I believe that the definition in article 1, paragraph 1 of the Act on Access to Public Information, stating that “every information on public matters constitutes public information within the meaning of the act”, based on the case law of administrative courts, avoids transparency.

A visionary decree from over 20 years ago

Already in 1996, the Supreme Administrative Court (file reference number SA/Ł 2722/95) described the meaning of this right and referred to article 10 of the European Convention on Human Rights. The case concerned access to protocols from the city board’s meeting. The adjudicating panel, considering the residents’ right to obtain information, reminded of the Convention on the Protection of Human Rights and Fundamental Freedoms, ratified by Poland, which stresses the importance of obtaining information for freedom of expression:

“Accordingly to the Convention, the right to obtain information is an element of the broader right to freely express opinions. The act of March 8th, 1990 on local self-government in the chapter entitled “municipal authorities” lists the inhabitants of the municipality /self-government community/ and determines their authority to make decisions in general voting /through elections and referendums/ or through municipal authorities (…). In order to be able to make rational decisions, residents of the commune should know the activities of the commune bodies in its various aspects.”

The conclusion made by the Supreme Administrative Court is significant because the evolution of the interpretation of article 10 of the Convention in the jurisprudence of the European Court of Human Rights in the direction that in Poland can be called “access to public information”, has been accented more than 10 years later.

National law and practice not in accordance with the Convention

One of the most important issues in the Court’s jurisprudence, which has been shaping since 2009, is not only to emphasize that the acquisition of information is protected by the Convention, but also to pay attention to how national regulations or their interpretations unduly limit it by various means. And this is the essence of the problem in Poland. When considering whether something is “public information”, we indirectly prevent a reliable and information-based public debate.

In the Társaság a Szabadságjogokért v. Hungary decree of  April 14th, 2009 (complaint No. 37374/05), the ECHR pointed out that, among others things: “legislation cannot allow arbitrary restrictions because they can become a form of indirect censorship”, and gathering information is necessary for preparing public debate. [author’s emphasis].

In the decree from June 25th, 2013 from the complaint of the Youth Initiative for Human Rights against Serbia (complaint No. 48135/06), the ECHR stated that violation of article 10 of the ECHR may occur not only through the provisions of national law, which violate unjustifiably and to an excessive extent the right to public information, derived from article 10 of ECHR, but also may rely on actual actions aimed at arbitrary failure to provide information.

What is more, in the same verdict an important reference to political culture appeared. It indicates even greater importance of openness in countries undergoing systemic transformation. Judges SAJÓ I VUČINIĆ expressed a common and convergent opinion that “the issued ruling is particularly important for those countries where even nowadays established habits hinder access to data which in the times of totalitarianism were used for oppressive purposes by secret services”. They also stressed the need to interpret article 10 of ECHR in accordance with international solutions regarding freedom of information.

For freedom of expression, it is necessary to know the facts

The Court in its judgments emphasizes the aforementioned need to have information to exercise freedom of expression. It is this element of the Court’s jurisprudence that is most relevant to Polish considerations about whether something is or is not public information. According to the Court, such considerations cannot change the meaning of the law. From this it can be concluded that if Polish courts analyzed the ECHR’s case-law in accordance with the recommendations resulting from the above-mentioned considerations, they would rule differently.

In the ruling of November 28th 2013: the Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria (complaint No. 39534/07), the ECHR stated: “Although it is not the task of the Court to determine how the Commission could and should have enabled the applicant to have access to decisions it made, he considers that the total refusal to grant access to any decisions did not comply with the proportionality principle. The Commission, which by its choice exercised an information monopoly with regard to the decisions it made, prevented the applicant from carrying out research in relation to one of the nine Austrian Lands, i.e. Tyrol, and participation to a significant extent in the legislative process regarding changes to the content of Tyrol’s property law. The Court therefore concludes that interference with the applicant’s right to freedom of expression cannot be considered as indispensable in a democratic society.” [author’s emphasis].

Additionally, in the ruling of November 8th, 2016 in the Magyar Helsinki Bizottsag v. Hungary case (complaint No. 18030/11), “the Court considered that the applicant in the present case wanted to exercise the right to communicate information in a case of public interest and applied for access to information for this purpose, and this information was necessary to exercise her right to freedom of expression. (…) The Court considered that the applicant intended to contribute to the debate on a matter of public interest and the refusal to grant her request actually made it difficult to contribute to the public debate on a case of general importance.” [author’s emphasis].

Responsible courts should analyze the ECHR case law

The search for “public information” obscures the search for the significance of information for public debate, evaluation of administration and politicians’ actions. And that creates the opportunity to manipulate public opinion.

We can name a lot of cases in which we do not see traces of thinking about the right to information in relation to the standards created by the European Court of Human Rights. It is enough to remind ourselves of the cases about recordings from the borough council session (I OSK 14/10), minister’s calendar (I OSK 2914/13), recordings from cameras in the Sejm of the Republic of Poland during the meeting of December 16th, 2016 (II SAB / Wa 23/17 ), protocols of meetings between the city president and the directors (I OSK 1416/15), or documents regarding the dismissal of Judge Justyna Koska-Janusz (II SAB / Wa 774/16). In all of them, the courts did not find the need to treat the knowledge that was requested as public information.

The courts must take responsibility for the shape of the public debate. They have ready-made standards for this. And although there are decrees referring to them, the use of standards set by the ECHR should become a matter of course for the Polish judiciary. And let those be my wishes for 2018 and the future.

Szymon Osowski, the President and Legal Head of Sieć Obywatelska Watchdog Polska

The piece was published in the legal insert (“Prawnik”) to the Dziennik Gazeta Prawna daily of 16 January 2018.

Translated by Paweł Hnatyszyn