The attack on Freedom of Information in Poland.
On the 23rd of October, the Polish Minister responsible for secret services (sic!) has announced the draft law on Transparency of Public Life. The draft is regulating new provisions on access to public information, whistleblowing, lobbying, transparency of legislative process, declarations of assets and conflicts of interests. Each of the topic is regulated in the contradictory way to what it is in the title of the draft. It is a serious threat for civil society and transparency of public institutions.
Below we present our commentary on provisions relating to access to public information. As the whole draft deserves our attention, we will be referring to its subsequent parts in following days. We are already signaling that this draft is an inconsistent, internally contradictory and does not correspond with the current standards in the field. The opportunity to introduce valuable regulations has been lost. Instead, we are dealing with empty slogans and, worse, with a real threat to transparency.
Risk of Narrowing the Definition of Public Information.
It is worrying that authors has combined the provisions of the already binding Act on Access to Public Information with the provisions on countering corruption. The right to information is a human right and may also be used for other purposes. A good example of this is the request to provide access to protocols of control held by the Sanitary-Epidemiological Station at the hospital where the infection occurred. The applicant did not request information to make the hospital more transparent but wanted to use the information to file a lawsuit against the hospital. We are concerned that this type of regulation will affect the definition of public information narrowing it only to anti-corruption and direct public interest matters rather than a human right as described in the international documents.
Registry of Contracts. Hope That is Dying.
We are disappointed by the regulation, contained in Art. 8 sec. 2 pt. 2 of the draft limiting the possibility of refusing the content of the contract due to the right to privacy and the secrecy of the trader only to those contracts that were concluded by public authorities (in the meaning of organs such as central and local administrative bodies). Out of scope there are many other public institutions that perform public authority tasks and have public funds. The access to those can be restricted on the basis trade secret.
The Trick Up From the Public Official Sleeve. A new limitation of access to information
The concern is triggered by the art. 21 sec. 2 of the project: “Where the applicant persistently submits the application, which implementation, due to the amount or scope of information provided, would significantly impede the operation of the entity obliged to provide public information, the entity may refuse to make public information available.” This provision provides for a completely new ground for refusal of access to public information. The premise for the decision to deny the obligee is defined in a very general way and completely subordinated to the subjective assessment of officials who will de facto assess whether the amount of potentially disseminated information or their wide range will interfere with their activities. There is no public interest test included. This new type of the refusal will be especially risky for local journalist whose main manner of work is using FOI requests to obtain data from local authorities.
Another New Restriction. Interest of a State Owned Company.
We are strongly opposing the introduction of a new limitation, called a “threat to the essential interests of the obliged company”. According to Art. 9 sec. 6 the Obliged Company, in which the share of the State Treasury exceeds 10% of the share capital or 10% of the number of shares, may not make available an information required in the contract register when this may jeopardize the essential interests of the Obliged Company. In our view, the criterion of “threatening the basic interests of an obliged company” is blurred and does not allow for a clear indication of the circumstances under which this condition arises. The category of contracts subjected to possible exclusion from publication in the register should be indicated as precisely as possible, as at the present level of generality, its possible that verification may be merely illusory. What is more, the authors has not introduced any means to control such refusals by an independent body.
Another Limitation of Access to Information. Pay and Wait to See What You Will Get.
In the new regulation on fees (Article 20 (2)) we see another threat to the right to information. Until now, there was a mechanism that first the public entity is providing the information and then charging for the cost of transformation into the desired form (i.e cost of copying). This mechanism has been reversed by making information available only after paying the fee. What is more, the newly proposed procedure is extending the time limit for answering to the request up to 1 month. It is true that the law currently in force does not specify the way in which the fee is paid, but the administrative courts have attempted to fill this gap in their case law. They did control it however, in such circumstances that the applicant already had information in hand. The proposal does not include any provision on how to argue with the authorities when the cost is far too high (which happens very often). With the rule “first pay, then obtain” the applicant has no possibility to claim the payment back when it is too high. The only possibility is to refuse to pay the proposed cost. But it will mean that the information will not be disclosed.
This and other parts of the project will be discussed in detail in the course of public consultations for which we got ONLY 6 working days. Access to public information in Poland will not improve, and we also see a huge risk of deterioration of Freedom of Information legislation standards.