Access to public information, case II SAB/Wa 10/13

August 8th, 2013, Tomasz Rychlicki

A Polish company requested the Ministry of Interior to disclose public information in the form of source code of software that is used by the Ministry in performing public tasks related to Voivodeships’ databases of citizens residence. The source code of a computer application was written by employees of the Ministry as part of their employment contracts. The Ministry did not answer the request and the Company filed a complaint on failure to act.

The Voivodeship Administrative Court in its judgment of 24 April 2013 case file II SAB/Wa 10/13 dismissed it. The Court ruled that according to the provisions of Article 1(1) of 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, each information on public matters constitutes public information in the understanding of the API and is subject to being made available on the basis of principles and under the provisions defined in this Act. The definition of “public information” is widely criticized for defining ignotum per ignotum. However, Article 6(1) of the API helps to clarify this problem.

Article 6. 1. The following information is subject to being made available, in particular on:
1) internal and foreign policy, including:
a) intentions of legislative and executive authorities,
b) drafts on normative acts,
c) programmes on realisation of public tasks, method of their realisation, performance and consequences of the realisation of these tasks,
2) entities, defined in Article 4, it. 1, including:
a) legal status or legal form,
b) organisation,
c) subject of activity and competencies,
d) bodies and persons performing functions therein and competencies,
e) property structure of entities, defined in Article 4, it. 1, points 3-5,
f) property they dispose of,
3) principles of functioning of entities, defined in Article 4, it. 1, including:
a) mode of conduct of public authorities and their organisational units,
b) mode of conduct of state legal persons and legal persons of local authorities in the area of performing public tasks and their activity within the frames of budget and non-budget economy,
c) methods of passing private-public acts,
d) methods of accepting and settling matters,
e) state of accepted cases, order of their settling or resolving,
f) conducted registers, books and archives and on methods and principles of making data there contained available,
4) public data, including:
a) contents and form of official documents, in particular:
– contents of administrative acts and other resolutions,
– documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,
b) opinion on public issues made by the bodies of public authority and by the public officers in the understanding of the provisions of the Penal Code,
c) contents of other presentations and assessments made by the bodies of public authority,
d) information on the condition of the state, local authorities and their organisational units,
5) public property, including:
a) property of the State Treasury and state legal persons,
b) other property rights to which the state and its debts are entitled to,
c) property of the units of local authority and professional and economic local authorities as well as property of legal persons of local authorities and the ill persons’ offices,
d) property of the entities, defined in Article 4, it. 1, point 5, coming from disposing of the property, defined in c. a) – c) as well as the profits from this property and its encumbrances,
e) incomes and losses of the commercial companies in which the entities, defined in c. a) – c) hold the dominant position in the understanding of the provisions of the Commercial Companies Code and disposal of this income and the method of covering losses,
f) public debt,
g) public assistance,
h) public burden.
2. The official document in the understanding of this Act is the text of declaration of will or knowledge, preserved and signed in any form by the public officer in the understanding of the provisions of the Penal Code within the frames of its competencies, directed to another entity or filed to the acts.

The Court ruled that with regard to the types of information listed in the above mentioned provision it should be emphasized, referring to definition of public information as any information about public affairs, that public information is such information that carries a message about public affairs. Bearing that in mind, the Court noted that the source code is a series of instructions and statements written in an understandable human programming language that describes the operations that should be performed by a computer, which is a result of the work of developers. The Court ruled that that the source code does not contain any message on public matters, and is only a tool used in computer programs. The fact that certain computer programs are used by public authorities to carry out public functions, does not prejudge that their source code is public information. According to established case law of administrative courts and legal commentators, disclosure of public information is made in the form of material and technical activities, and only the refusal to disclose public information and discontinuance of the proceedings is made according to the provisions of Article 16 (1) of the API, in the form of an administrative decision. However, in cases where the requested information is not deemed as public information, it is sufficient to inform the requesting party of this fact. And in any case such situation cannot be deemed as inactivity of the requested body. According to the Court, the requested information did not met the scope defined in the API.