On November 17, 2021, a very important trial - in the context of the right to public information - will be held before the Constitutional Tribunal. This is a consequence of a request by the First President of the Supreme Court regarding the non-compliance of certain provisions of the Access to the Public Information Act [1] with the principle of legal certainty and the right to privacy. Update: the trial has been postponed until December 15, 2021.
What is being questioned in the request?
- Lack of clarity in the meaning of the terms “public authorities”, “other entity performing public tasks”, “persons performing public functions” and “related to the performance of public functions” - which could lead to an overly broad understanding of the group of entities obliged to provide public information.
- Provisions which mandate to disclose public information “about persons performing public functions, pertaining to these functions” - which could infringe on the privacy of these persons and violate the rules of personal data processing.
- Lack of regulation in the public information disclosure procedure regarding how persons performing public functions whom the information concerns could or should participate - recognized as a legislative omission.
Comment by Moje Państwo Foundation
The Access to the Public Information Act has been in force in the Polish legal system for almost twenty years. It is the basic tool of citizens to gain knowledge about the activities of the state and to build a civil society. The Foundation does not share the position of the First President of the Supreme Court presented in the request to the Constitutional Tribunal.
The final decision of the Constitutional Tribunal, if rendered in accordance with the request, may disturb the previously established principles of the right to access public information and limit the scope of this constitutional right. The body of administrative courts judicial practice, established over many years, could be greatly affected.
Moreover, the application of the Access to the Public Information Act would become very difficult in practice - it would be associated with great uncertainty for citizens and the public authorities themselves - comments Magdalena Siwanowicz-Suska, Legal Director at Moje Państwo Foundation.