Right to know – is guaranteed by the Article 61 of Polish Constitution and the Law on Access to Public Information. Everybody can ask for anything that concerns activity of public institutions and get information necessary to take part in the decision making. The institutions should answer as soon as possible, up to 14 days.
From the point of view of the general framework of the right to information, it is important that the procedure for access to information is simple, quick, as a rule free and that restrictions of the right to information are detailed and clearly regulated and that they do not give decision-makers opportunity for excessive interpretations. It is also worth ensuring that as much information as possible is available on line. The standard should also include publishing information in the machine readible format and with keeping other standards that keep it accessible to persons with disabilities.
(Simple procedure) In Poland, disclosure of public information is regulated by a special procedure, different from the administrative procedure regulated by the Code of Administrative Procedure. Thanks to this, the request for public information is unformal (it can be submitted via e-mail, it is doubtful whether the application can be submitted via social media) and it is simple to formulate (it is enough to specify what information we are asking for and how we want to get it (e.g. scan via e-mail)
(Short deadlines) In Poland, the request for public information should be examined without unnecessary delay, no later than within 14 days. It is shorter than the one adopted in the administrative procedure (in which the maximum period is 30 days). This legal solution is important because the information obtained after a long time may beis useless or expired. This is particularly evident in case of journalists. But of course problem is not limited to this group. In several cases citizens need information to have and opinion and to participate in public life.
(The principle of information being free of charge) For the implementation of the right to information, it is important that getting information by a rule is not connected with financial burden. This is connected with the fact that right to know is included in a constitution. Payment is only possible if the applicant requests to get information in an unusual, unconventional way connected with additional cost.
Even if the fee is requested, the requested entity has to release it and is paid afterwards. It would beharmful to change this provision and make a condition to pay first and get information afterwards. In the Polish procedure, from the notification of the payment, a 14-day period begins, during which the applicant may withdraw the application (if he/she does not want to expose himself/herself to costs) or change the form and method of disclosure indicated therein. However, if the applicant does not agree with the charging or intends to contest the fee amount, after 14 days should receive the requested information.
It is important to regulate how to appeal as regards fee and give applicants the opportunity to challenge it in acourt. In Poland, the problem is that the information about the fee does not contain an instruction on the possibility and manner of challenging it. As a result, the applicant, who is not legally aware may understand that the payment is final, which is not true.
(Restrictions on the right to information) Due to the fact that in Poland the right to information is included in constitution, all limits are strict and cannot be interpreted broadly.
However, in practice, the biggest problems do not come from limits connected with other rights or security needs (such as protection of privacy, business interests or state security), but are connected with administrative resistance, such as silent denial, inaccuracy, irrelevance, disorganization. There is a special category of public information is, in Polish law named as “processed information”. Obtaining this information depends on the fulfilment by the applicant of the condition that the information requested by him/her is “particularly important for the public interest”. In the assumption of the authors of legal act, the “processed information” was the one, which the obliged entity does not have at the moment of requesting, and which need to be created specifically for the applicant as a result of undertaking intellectual work. However, obliged entities and courts noticed in this provision the possibility of non-execution of applications that are troublesome for the addressee (public entity), including when they cover a wide range of information. This is due to the fact that both “processed information” and “particular importance for the public interest” do not have legal definitions. Therefore, their interpretation takes place during the application of the law. In practice, this led to the fact that in the jurisprudence of administrative courts, “processed information” is treated broadly and includes more and more information, and “particular importance for the public interest” is treated narrowly, which makes it virtually impossible to demonstrate this condition.
Although the Polish Constitution says that “citizens have right to obtain information about the activities of public authorities and persons performing public functions” (and other entities and persons who perform public tasks and manage public funds), the Law on access to public information introduces the concept of “public information”. Lack of the definition of “public information” and its interpretation by the courts during the application of the law gave rise to extralegal restrictions by recognizing which information is not “public”. The case law provides statements that “internal”, “working”, “technical” or “private” information and documents are not “public information”.
Therefore, in the campaign for the introduction of legal regulations on access to information or campaigns for changing the law, it is necessary to avoid terms that are not clearly defined and ambiguous. They may be interpreted in the least beneficial way for citizens. All limitations to the Right to Know have to be precise and strictly regulate the limitations.
THE RIGHT TO INFORMATION
- The basis in the Constitution – article 61. A citizen has the right to receive information about the activities of public authorities and persons performing public functions. This right also includes obtaining information on the activities of economic and professional self-government bodies as well as other persons and organizational units to the extent that they perform tasks of public authority and manage municipal property or State Treasury assets. The right to obtain information includes access to documents and access to meetings of collegial public authorities from general elections, with the possibility of recording sound or images. The limitation of the law can take place only due to the protection of the freedoms and rights of other persons and economic entities set out in the acts, as well as the protection of public order, security or important economic interest of the state.
- Legal basis: Act of 6 September 2001 on access to public information
- Although the Polish Constitution provides that the right to information belongs to a “citizen” the act extends the constitutional guarantee and guarantee the right to information to “everyone”. The right to information in the Polish legal order is therefore available for everybody, including a physical person (regardless of age), as well as other legal entities and organizational units without legal personality.
- The level of formality: access to public information is unformal (separate simplified procedure, unformal request for information, shortened time for consideration of the case and for procedures of appealing).
How Right to Know can support participation?
To get involved in the decision-making process – concerning local or state law, or in making adjustment that are important from a social point of view – it is necessary to have information about what is going on. Below, we will discuss information, the availability of which is crucial for the citizens and their organizations to engage in the decision-making process.
- access to studies, in particular legal analyzes, expert opinions, etc. ordered by public authorities.
Example: in one of the Polish municipalities (Mikołów) the authorities decided to start working on the new commune’s (gmina) statute and the statutes of a gmina’s auxiliary units (villages). Therefore, basic acts for the local self-government system were worked out. The Mikołów authorities decided to have an external consultant to prepare the draft documents. One of the residents wanted to know the draft prepared by the consultant. This was important because the local authorities introduced changes. He wanted to know what exactly was negated. A resident applied for access to information – documents prepared in execution of the agreement between local office and the consultant. He received the answer that it is not public information. He brought the case to court and won – the court said it was public information. Citizens Network Watchdog Poland assisted the applicant preparing the documents for the court and participated in the proceedings in the court as a participant in the proceedings.
It is a good idea to introduce the obligation for the public authorities to publish all the studies they order.
- official correspondence
To participate, citizens need to know, at what stage the decision making procedure is, who is involved, and what is going on. This knowledge can be provided by official correspondence
Example 1: This example from the central (state) level concerns the disclosure of a draft of the new Constitutional Tribunal Act. In 2015, Citizens Network Watchdog Poland unofficially learned that the President of the Constitutional Tribunal together with other judges prepared a draft of the new Act on the Constitutional Tribunal. Due to the fact that the Tribunal is an entity that assesses, inter alia, compliance with the Constitution, it has no competence to initiate the legislative process. For this reason, the President of the Tribunal addressed the President of the Republic of Poland with a request to consider that the President should initiate the legislative process by referring to the parliament a document prepared in the Court. We wanted to get the document, sent from the Tribunal, to see how it differs from the document that eventually came to parliament. Later, it turned out to be even more important, as parliamentarians appealed against some provisions to the Constitutional Tribunal (including the provisions that were created in the Tribunal). We won a case in the Supreme Administrative Court to disclose the document. The justification of the judgment emphasized the importance of openness of the law-making process also in those entities which, do not deal with the legislative process but have had some influence on it.
Example 2: Some resident observed trees cuts in the the area registered as historical and protected. In such a case, not only the permission for tree cutting is required, but also the consent of the regional conservator for national heritage. –The resident was not sure if such consent was given. In this case, he asked the regional conservator’s office for its correspondence with the commune’s office. It turned out that the conservator did not receive an application for permission to cut trees at the protected area. Obtaining this information enabled the activist to proceed – notifying the prosecutor’s office about illegal activities of the city (cutting down trees without the required permissions).
- e-mail correspondence
The impact on the decision-making process can also take place outside of the official circulation of documents. The settlements may also take place in the electronic form.
Example: In Poland, the problem arose in 2011 when the government was working on the amendment to the act on access to public information. Citizen Network Watchdog Poland has unofficially learned that work on specific legislative proposals – before public consultation – was discussed at a closed mailing list (mailing list) coordinated by one of the NGOs. We requested access to this electronic correspondence, unfortunately the Supreme Administrative Court stated that this is not public information.
Although the given example ended with an unfavourable decision of the Supreme Administrative Court, some offices provide information in the form of e-mail correspondence. Anyway, there may be key information included in such e-mails and it is worth advocating free access to them.
- notes and minutes of meetings
The information on the meetings organized at the offices may be of significant importance to engage in the decision-making process. It is especially important to get information in the form of notes or minutes of these meetings.
Example: Significant decisions for a city can be made during the so-called mayor college. It is a meeting during which the city mayor meets with his deputies, the treasurer of the commune, secretary and sometimes with the most important officials. Although the mayor college is meeting of people holding public functions, it is not an organ and the law does not regulate its activities. Therefore, it is up to the mayor who participates, when and what is the topic to consider. On the other hand, the most important decisions on the investments or and innovations can be taken at such meetings. From these meetings are often prepared minutes or notes. Although many years ago a favourable verdict regarding the transparency of the minutes of the so-called mayor college took place, recently the Supreme Administrative Court issued a ruling unfavourable to transparency.
In the campaign for openness of public life, it is possible to recommend that notes and protocols that arise during meetings organized in the office are published on the office website. If the introduction of such a general regulation meets with resistance, it is possible to try to enlist the most important of these meetings and to introduce the obligation of proactive publication.
- information about meetings of the person holding public functions and calendars of meetings
The meetings held by the person performing public functions (e.g. the head of the city) may influence the decision-making process.
Example: Citizens Network Watchdog Poland has asked all ministers of the Polish government to provide public information in the form of a calendar of meetings or a list of meetings that took place. Some of the ministers provided their calendars, but the most common answer was that they are not public information. According to the jurisprudence of the Polish administrative courts, calendars of ministerial meetings (which can also be applied to other persons performing public functions) do not constitute public information, but this information is the data on meetings that took place.
Although court judgments in Poland are unfavourable, it should pointed out that there are positive practical examples of sharing calendars by local politicians (e.g. Goleniów). In addition, it is possible to recommend such a solution, although it depends on the will of a given public official (in Poland, it can be done with the help of administrative requests and petitions described in the subsequent parts of this study).
Proactive on line publication of information
It is good to get involved in the decision making process at the earliest possible stage. So it is particularly important to know about the documents discussed at various committees (e.g, commune council committees as well as other advisory bodies) and working meetings. At the early stage, there is the greatest chance to introduce solutions important for citizens. However, to be able to get involved, they need to know what is happening. Some campaigns may never happen as there is no information on the proceedings at all.
Example: citizens are interested in statutory amendments that are discussed at the city council committee. The meeting is scheduled but there is no information available on line. Citizens get last minute information from a befriended councillor.. They were not prepared for the meeting and where not able to read the documents.. The problem can be solved by publishing information on the upcoming meetings in advance on line, along with the draft documents to be discussed.
In Poland, the national law does not guarantee publication of information in a timely manner on line (or by making it available to the public opinion in any other way). Therefore, in some local governments this is a problem. These issues is often regulated in local laws and the statutes of many local governments. The guarantee prior notification on meetings.
Text prepared by Bartosz Wilk from Citizens Network Watchdog Poland within the project “REBEL – REinforcing direct democracy in BELarus by transferring the good practice from V4 countries” supported by the Visegrad fund and by the Ministry of Foreign Affairs of the Kingdom of the Netherlands within the Eastern Partnership program.