Personal data protection, case I OSK 592/10

September 21st, 2010, Tomasz Rychlicki

The Helsinki Foundation for Human Rights requested the Internal Security Agency (in Polish: Agencja Bezpieczeństwa Wewnętrznego – ABW) to provide information on operational activities conducted in the form of operational control. The ABW refused to provide such information and argued that such information on operational control, without exception, and the distinction between statistical and other information, is a state secret and are marked “top secret”. The Foundation filed a complaint for failure to act.

The Voivodeship Administrative Court in Warsaw in its judgment of 12 January 2010 case file II SAB/Wa 152/09 held that the ABW did not provide information as requested, nor has issued a proper refusal. therefore, the ABW failed to act properly, The VAC has committed the Head of the Internal Security Agency to proceed the application of Helsinki Foundation of 1 June 2009, either by providing relevant information or by issuing a decision to refuse, in accordance with Article 16(1) the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, which will allow the Foundation to use legal means, including the right to bring an action in the courts because of the reason for the refusal.

Article 16. 1. The refusal to make the public information available and discontinuation of proceedings to make the information available in the case defined in Article 14, it. 2 by the body of public authority takes place by means of a decision.
2. In relation to the decision, defined in it. 1, the provisions of the Code of Administrative Proceedings shall apply, however:
1) the appellation from the decision is investigated within 14 days,
2) the justification of the decision on the refusal of making the information available includes also the names, surnames, and these persons’ functions, who took decision under the procedure on making the information available and marking the entities, in relation to whose goods, defined in Article 5, it. 2, the decision on the refusal to make information available was issued.

The Head of the Internal Security Agency filed a cassation complaint. The Supreme Administrative Court in its judgment of 7 July 2010 case file I OSK 592/10 held that the case-law of administrative courts presents the view that the complaint on the failure to act by the public authority during the proceedings for access to public information may be filed not only against the so-called “silence” of the authority, but also in a situation in which the dispute arose between the applicant and the addressee as to the nature of the information requested. However, the SAC was not able determine what is the nature of the information requested.

See also “Polish regulations on personal data protection“, “Polish case law on personal data protection” and “Polish case law on e-access to public information“.