Archive for: public information

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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.

Categories: Art. 1(1) API | Art. 23 API | Art. 6 API | computer law | copyright law | e-access | e-law issues | legal regulations on computer networks | open standards | Polish Act on Access to Public Information | Polish Act on Authors Rights and Neighbouring Rights | Polish courts | public information | Voivodeship Administrative Court.

E-access to public information, case I OSK 175/13

May 25th, 2013, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 24 October 2012 case file II SAB/Wa 245/12 ruled that official topographic maps that were created and are kept in the databases by the Head Office of Geodesy and Cartography (GUGiK) are public information and must be made ​​available on the request of the creator of dobraulica.pl website. GUGiK filed a cassation complaint.

The Supreme Administrative Court in its judgment of 5 April 2013 case file I OSK 175/13 anulled the contested judgment and ruled that the VAC incorrectly applied provisions of law, because in this case, the law on Geodetic and Cartography should be used as a legal basis for deciding the issue of public information and re-use.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 23 API | Art. 6 API | computer law | database protection law | e-access | e-documents | e-law issues | legal regulations on computer networks | open standards | Polish Act on Access to Public Information | Polish courts | Polish law | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Wa 513/12

March 20th, 2013, Tomasz Rychlicki

A Polish citizen wanted to know if the Mayor of Tłuszcz town and municipality has issued any official documents that would define and regulate actions of the municipality on Facebook. He decided to post a request to disclose such information using the official Facebook’s page of Tłuszcz’s municipality. After two weeks of inactivity, he filed a complaint against the mayor.

The Voivodeship Administrative Court in Warsaw in its decision of 15 March 2013 case file II SAB/Wa 513/12 dismissed the complaint and ruled that a post on Facebook is not a proper request for disclosure of public information.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | e-access | e-law issues | e-proceedings | e-services | legal regulations on computer networks | Polish Act on Access to Public Information | Polish courts | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Wa 335/12

December 20th, 2012, Tomasz Rychlicki

Polish citizen demanded the publication of his complaint against the cancellation of the proceedings of his action that was filed before the Constitutional Tribunal, on Tribunal’s website. He argued that this is public information and should be widely available. The Tribunal refused. Therefore, he decided to submit a complaint for failure to act to the Voivodeship Administrative Court in Warsaw. Legal counsel representing the Tribunal argued at the hearing that there is no legal basis for publication of such complaint on the Internet, and explained that the complaint has been filed after a final decision to discontinue the proceedings and, therefore, should not at all be processed by.

The Voivodeship Administrative Court in its judgment of 18 December 2012 case file II SAB/Wa 335/12 dismissed the complaint. The Court ruled that public authorities are required to publish information if they are obliged to do so by law. The Court pointed out that there is a failure to act if the authority refuses to disclose information, which is required to make available. According to the Court, the complaint is not such information. In addition, according to the decree of the President of the Constitutional Tribunal on the disclosure of pleadings at www.trybunal.gov.pl website, under the link “cases”, the following materials are available: i) the decision for posting complaints, but it does not apply at the initial stage of deciding on the admission of a complaint or request, ii) an electronic copy of the complaint (with supplementary documents), without attachments after referring the constitutional complaint (application) by the Court to decide on the mertis.

See also “Polish case law on e-access to public information“.

Categories: computer law | e-access | e-law issues | e-proceedings | legal regulations on computer networks | Polish Act on Access to Public Information | Polish Constitutional Tribunal | Polish courts | public information.

E-access to public information, case II SAB/KR 152/12

November 28th, 2012, Tomasz Rychlicki

In another case of Tomasz Zieliński, the author of transportoid.com service and software available for Android and Windows Phone that provides timetables of public municipal transport systems, the Voivodeship Administrative Court in Kraków in its judgment of 26 November 2012 case file II SAB/KR 152/12 ruled that source code that was used to create a website with public communication timetables is not deemed as public information.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 23 API | Art. 61 Constitution | computer law | database protection law | e-access | e-law issues | e-services | legal regulations on computer networks | open standards | Polish Act on Access to Public Information | Polish courts | Polish law | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Kr 105/12

October 19th, 2012, Tomasz Rychlicki

Tomasz Zieliński, the author of transportoid.com service and software available for Android and Windows Phone that provides timetables of public municipal transport systems, requested Miejskiego Przedsiębiorstwo Komunikacyjne (Municipal Transport Company) in Kraków to disclose public information in the form of electronic database of timetables. MTP refused and argued that the request goes beyond the the Act on Access to Public Information, apart from, the requested information is available on the website. Mr Zieliński filed a complaint on failure to act.

The Voivodeship Administrative Court in Kraków in its judgment of 18 September 2012 case file II SAB/Kr 105/12 agreed with Mr Zieliński and ordered MTP to take appropriate actions that were indicated in the request.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | computer law | database protection law | Directive 2003/98/EC | e-access | e-law issues | e-services | EU law | legal regulations on computer networks | open standards | Polish Act on Access to Public Information | public information | Voivodeship Administrative Court.

E-access to public information, case I OSK 1203/12

October 19th, 2012, Tomasz Rychlicki

The Association of Leaders of Local Civic Groups (SLLGO) requested the Polish Prime Minister Donald Tusk to disclose documents and the correspondence, including e-mails, that concerned recent legislative works on the amendments to the Polish Act on Access to Public Information. The Prime Minister disclosed part of the requested materials, but without indicated e-mails. The representative of the Prime Minister argued that e-mails are used to send text messages, they are used as internal correspondence in the office, as well as with external entities. E-mails consists of various documents of varying importance, significance and category (from the private and business). However, it is not a system of receiving and processing of official documents and the exchange of official correspondence, including these on the legislative process. The system serves for communications between certain individuals, rather than for the presentation of the official positions of the administration. The SLLGO filed a complaint and argued that the Prime Minister failed to act in order to disclose the requested information.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2012 case file II SAB/Wa 295/11 agreed with the SLLGO. The Court ruled that requested e-mails are not private, and they are used to exchange opinions, positions and evaluations between persons exercising public functions. There was no doubt that such electronic means were used for the evaluation and position with respect to the specific provisions of the Act amending the Act on Access to Public Information and other laws. The Court did not agree with the Prime Minister that such exchange of information was intended for internal use and it has working and preparatory nature. The Prime Minister filed a cassation complaint.

The Supreme Administrative Court in its judgment of 14 September 2012 case file I OSK 1203/12 annulled the contested judgment. The Court agreed with the PM and decided that e-mails are internal documents. This issue has been resolved in the same way by the Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 666/12. See “E-access to public information, case I OSK 666/12“.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 10 API | Art. 6 API | Art. 61 Constitution | computer law | e-access | e-documents | e-law issues | Polish Act on Access to Public Information | Polish Constitution | Polish Supreme Administrative Court | public information.

Access to public information, case I OSK 903/12

September 11th, 2012, Tomasz Rychlicki

Daniel Macyszyn, acting as the President of the ePaństwo Foundation, asked the First President of the Supreme Court of the Republic of Poland to disclose information why and on what legal basis, the Supreme Court in its decision No. BSA III – 055-90/11 posted references to the LEX software that is published by Wolters Kluwer, in situation when information available under these references is available for free and in public repositories that are published by the Supreme Administrative Court, and there are also other commercial legal information systems available on the Polish market. The Foundation wanted to know, whether the Supreme Court has the license for the use of LEX software. If the answer was positive, the Foundation inquired when, and in what procedure, and for what price and how many licences were purchased, and what were the criteria for selecting this software. Mr Macyszyn also aksed why the Supreme Court uses this software and not the public and free resources such as repositories of decisions of administrative courts, provided by the Supreme Administrative Court and the gazettes published by the Government Legislative Centre. The last question was whether the Supreme Court cooperates with the Wolters Kluwer on matters other than purchasing a license by the Supreme Court to the LEX. The First President refused to initiate proceedings with regard to disclosure of the requested information and noted that civil law contracts between public authorities with third parties operating in the sphere of private law, do not belong to the category of public information, consequently, they cannot be disclosed to anybody. Such contracts do not in fact belong to the category of “public information” within the meaning of Article 6(1) pt. 4 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.

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 Foundation requested for the re-hearing and the First President again refused. Daniel Macyszyn filed a complaint against these two refusal orders.

The Voivodeship Administrative Court in Warsaw in its judgment of 10 January 2012 case file II SA/Wa 2257/11 repealed both orders of the First President and ruled them unenforceable. The First President filed a cassation complaint.

The Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 903/12 dismissed it and held that any agreement between the public authorities and other entities, is deemed as public information. The Supreme Administrative Court pointed out that in matters of access to public information, the public authority cannot refuse to initiate proceedings. It have to either disclose public information, or if there are situations provided in Article 5 of the API, refuse to disclose such information, but in the form of a decision. But even while considering by the authority, whether the requested information is public information, or in case that would lead to the answer that the information is not public information, or that the authority simply does not have it, the proceedings were already initiated, therefore it cannot refuse to initiate it.

The Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 916/12 dismissed another cassation complaint filed by the First President against the judgment of the Voivodeship Administrative Court in Warsaw of 10 January 2012 case file II SA/Wa 2259/11 that repealed orders of the First President of the Supreme Court in which it refused to initiate proceedings to disclose information on the content of the contracts, which the Supreme Court of the Republic of Poland, the authorities or persons acting under the authority of the government, concluded with the company Wolters Kluwer, with regard to series of books published by Wolters Kluwer such as “Studies and analysis of the Supreme Court” and “Bulletin of the Supreme Court – Labour and Social Security and Public Affairs Chamber”, and the disclosure
of the contents of the contracts, which the Supreme Court of the Republic of Poland, the authorities or any person acting from on behalf of the authorities, have concluded with the publishing house LexisNexis Publishing sp. z o.o,, with regard to a series of publications such as “The case law of the Supreme Court – Civil Chamber (OSNC)”, “The case law of the Supreme Court – Labour, Social Security and Public Affairs Chamber (OSNP)”, and disclosure of the contents of the contracts, which the Supreme Court of the Republic of Poland, the authorities or persons acting under the authority of the government, concluded with the Editorial Board of the “Palestra” with regard to a series of publications entitled “The case law of the Supreme Court – Criminal Chamber and the Military Chamber (OSNKW)”. The Foundation requested also the disclosure of information on what procedure governed the purchase of the above mentioned periodicals by the Supreme Court, in what amounts and for what price.

Categories: Art. 1(1) API | Art. 16 API | Art. 6 API | computer law | e-access | e-law issues | open standards | Polish Act on Access to Public Information | Polish Administrative Proceedings Code | Polish Supreme Court | public information | Voivodeship Administrative Court.

Database protection, case C‑138/11

August 3rd, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 12 July 2012 in Case C‑138/11 ruled that the activity of a public authority consisting in the storing, in a database, of data which undertakings are obliged to report on the basis of statutory obligations, in permitting interested persons to search for that data and/or in providing them with print-outs thereof does not constitute an economic activity, and that public authority is not, therefore, to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU. The fact that those searches and/or that provision of print-outs are carried out in consideration for remuneration provided for by law and not determined, directly or indirectly, by the entity concerned, is not such as to alter the legal classification of that activity. In addition, when such a public authority prohibits any other use of the data thus collected and made available to the public, by relying upon the sui generis protection granted to it as maker of the database pursuant to Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, or upon any other intellectual property right, it also does not exercise an economic activity and is not therefore to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU.

Categories: database protection law | Directive 96/9/EC | e-access | e-documents | EU law | Judgments of Court of Justice of the EC | public information.

E-access to public information, case II SAB/Wa 30/12

August 3rd, 2012, Tomasz Rychlicki

A Polish citizen requested a Mayor of the Community to disclose copy of the existing office instructions which are in force in the community. Mayor replied that information covered by the request is available on the Community website. The applicant filed a complaint on the failure to act.

The Voivodeship Administrative Court in Warsaw in its judgment of 13 July 2012 case file II SAB/Wa 30/12 ruled that the public authority has not provided the requested information, because the Mayor had only indicated its source – the online Public Information Bulletin (BIP). According to the Court, the Mayor should also give a direct link, under which the requested information is located. The mere URL to the BIP of the Community, cannot be considered as complying with the request.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 14 API | Art. 6 API | computer law | e-access | e-law issues | legal regulations on computer networks | Polish Act on Access to Public Information | public information | Voivodeship Administrative Court.

Access to public information, case I OSK 896/12

July 29th, 2012, Tomasz Rychlicki

Edwin Góral, the Polish legal advisor (a profession similar to English solicitor), requested the Office of the Attorney General of the State Treasury to print at his own expense and sent him all the lawsuits and complaints filed by the Attorney General of the State Treasury Office in 2011, until 30 June. The President of the Office refused to disclose the requested information and decided that the Office of the Attorney General of the State Treasury is not an entity obligated to disclose public information, in particular, the documents produced by legal advisors who work for the Office and perform representation activities. Edwin Góral filed a comaplaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 29 December 2011 case file II SAB/Wa 357/11 dismissed it. The Court ruled that even if the contents of suits, summons, statements of claims, writs are considered as public information, the provisions of Article 1(2) 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, provides that their disclosure should be specified in separate laws. The disclosure of civil suits (petitions) is possible under the provisions of the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.

The Supreme Administrative Court in its judgment of 23 July 2012 case file I OSK 896/12 dismissed the cassation complaint. The Court noted that the announcement of judgment occurs in open court. Judgments, including decisions of the Polish Court of Competition and Consumer Protection, should be disclosed to the public by a court as provided in the CPC. Similarly, the right of access to the case file, to receive copies of or extracts is governed by the provisions of the Civil Proceedings Code. It should be noted that this is a completely different position to that adopted in the judgment of the Supreme Administrative Court of 11 August 2011 case file I OSK 933/11. See “Access to public information, case I OSK 933/11“.

Categories: Art. 1(1) API | Art. 4(1) API | Art. 61 Constitution | e-access | e-documents | e-law issues | Polish Act on Access to Public Information | Polish Constitution | Polish Supreme Administrative Court | public information.

E-access to public information, case I OSK 730/12

July 16th, 2012, Tomasz Rychlicki

Błażej P. who is serving a sentence of imprisonment, requested the Minister of Justice to disclose paper copy of public information from the online Public Information Bulletin (PIB) that concerned the Ministry of Justice. The Minister answered that it can only disclose information, which was not made available in the Public Information Bulletin. Błażej P. filed a complaint against such decision. He noted that he is serving a prison sentence and thus he does not have access to the PIB. Therefore, the decision of the Minister violates the constitutional right of access to public information. The Voivodeship Administrative Court dismissed the case, and Błażej P. filed a cassation complaint together with the request the Constitutional Tribunal to decide on the constitutionality of the provisions of Article 10 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.

Article 10. 1. Public information, which was not made available in the Public Information Bulletin, is made available on the petition.
2. Public information, which can be immediately made available, is made available in the oral or written form without a written petition.

Błażej P. argued that the fact that the convicted person has to request the prison director on Internet access in order to access public information that is available at the PIB, makes the access dependent on the will of the director, and the provisions of the Punishment Execution Code do not provide for use of the Internet.

The Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 730/12 dismissed it. However, the Court said that serving a prison sentence does not exclude inmates from access to the Internet or mobile phones, but it also does not mean that it may be unlimited access and to any information. Inamtes may use it, but on the rules established in the prison. They can also obtain public information in a form other than online, as determined by the provisions of the Punishment Execution Code.

See also “Polish case law on e-access to public information“.

Categories: Art. 10 API | e-access | e-law issues | Polish Act on Access to Public Information | Polish Constitutional Tribunal | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Lu 10/12

June 4th, 2012, Tomasz Rychlicki

The Association of Leaders of Local Civic Groups (SLLGO) requested the Mayor of Opole Lubelskie town to disclose information regarding the fund from the years 2009-2011. The request was sent via e-mail. The Mayor ordered the SLLGO to supplement formal defects of the request and claimed that this form of an electronic document must be signed by the certified electronic signature as referred to in the Polish Act of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in Journal of Laws (Dziennik Ustaw) No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw), No 130, item 1450, with subsequent amendments. SLLGO refused to comply and argued that the provisions 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, allows for requesting the disclosure, even verbally, without any formality. The Mayor decided to leave the request without examination. The decision was based on the provisions of Article 64 § 2 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

Article 64.
§ 1. The application will not be examined if the applicant’s address is not included in the application and it cannot be identified from the data available.
§ 2. If the application does not fulfil the requirements of law, the applicant shall be summoned to correct the defects within 7 days, with a notice advising that failure to comply will result in the application not being examined.

The Voivodeship Administrative Court in Lublin in its judgment of 20 March 2012 case file II SAB/Lu 10/12 ruled that the Mayor remained inactive and unjustifiably applied the provisions of the APC, therefore, the Court obliged the Mayor to examine the request. The authority that is obliged to disclose public information is not entitled to demand that a request submitted in electronic form has to be signed by any electronic signature. The Court reminded that the intention of the legislature was to unformalize the proceedings for the disclosure of public information, in order to ensure and fulfill the constitutional principle of openness of public life. The API indicates that a request for such information may take any form, and even the person requesting has not to be fully identified.

See also “Polish case law on e-access to public information” and “E-signatures in Poland“.

Categories: Art. 10 API | computer law | e-access | e-law issues | e-signature | legal regulations on computer networks | Polish Act on Access to Public Information | Polish Act on Electronic Signature | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | public information | Voivodeship Administrative Court.

Access to public information, case XVI K 112/11

May 18th, 2012, Tomasz Rychlicki

Grzegorz Pluciński, the CEO of the Polish company Mainframe, filed a private accusation against Andrzej Machnacz who was the Director of the Centre of Information of the Ministry of the Interior and Administration in 2008-2010. It is probably the first case based on the provisions of Article 23 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.

Article 23. Whoever, contrary to the obligation weighing on him, shall not make the public information available, is subject to fine, penalty of restricted liberty or penalty of deprivation of liberty for up to one year.

Mr Pluciński argued that the Director was obliged to disclose a contract between the Centre and IBM. The sum of the contract was below 38.000 PLN which allowed for its conclusion without meeting the conditions of the Polish Act on Public Procurement. During the trail before the Regional Court for Warszawa Mokotów, the Director argued that the request for disclosure of public information that was filed by Mainframe was worded too broadly and did not relate to this contract. Mr Machnacz also argued that he did not take the refusal decsion, and only accepted suggestions of his employees, and after consultation with outside law firm. However, only two signatures were available under this decision. According to the provisions of Article 16(2) of the API, the justification of the decision on the refusal of making the information available should also include 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 trial has been postponed until June 2012.

Categories: Art. 16 API | Art. 23 API | computer law | criminal law | e-access | e-documents | e-law issues | e-services | legal regulations on computer networks | Polish Act on Access to Public Information | Polish courts | Polish institutions | Polish law | Polish Regional Court | public information.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

A Polish company requested the Ministry of the Interior and Administration (MIA), and Director of the Centre of Information of MIA, to disclose all legal opinions prepared by the Polish Information Processing Society that concerned IT systems created by the Ministry. The Director provided all the requested documents, however the Ministry only asked the Company to clarify the request in the letter sent on October 2009. The Company filed a complaint for failure to act, claiming administrative inaction in its case. The Ministry also argued that the requested information cannot be disclosed because such expert opinions are copyrighted materials, and as such, are not deemed as public information.

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations 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. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed ​​a cassation complaint.

The Supreme Administrative Court in its judgment of 7 March 2012 case file I OSK 2265/11 dismissed it. The SAC held that if the Minister found that it had the requested information, while it also concluded that there are obstacles to the disclose because of the circumstances set out in Article 5 of the API, or other provisions of specific laws, it was obliged to initiate ex officio proceedings on the refusal to disclose information. The refusal should be issued as an administrative decision only. The lack of such a decision was deemed as administrative inaction, subject to a complaint. The letter sent by the Minister on October 2009 was clearly not an administrative decision. The SAC reminded that the administrative decision should obligatory contain: the name of public authority, date, identity of the party or parties, the legal basis on which the decision was issued, the conclusion and findings, factual and legal grounds, instruction, whether and how to file an appeal against the decision, the signature with the name, surname and position of the person authorized to issue a given decision. Although the letter was signed and affixed with the seal by the Deputy Director of Administration and Finance Office of the MIA, is was not mentioned that the Director acted under the authority of the Ministry. The letter did not contain a ruling on the request of the Company, but on the contrary – the Director explicitly stated that the request was not recognized in accordance with that Act on access to public information. The Letter had no form of a decision, it did not include the instruction, whether and how to file an appeal against it. The Court decided that this letter was purely information message sent on paper. The Polish legislature did not formulate any legal definition of “access to public information”, or the very concept of public information, both in the Polish act on access to public information or in any other legal act. However, Article 1 of the API ab initio provides that each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act. According to legal commentators, a public matter is the activity of both public authorities, economic and professional self-government bodies that exercise tasks of official authority and the management of public property. A specific individual case of a person, especially of a private nature, is not deemed as public matters. The access to administrative files falls Within the catalog of public information. Public information is therefore the content of any document relating to public authority. These range from documents produced by government bodies, as well as those used in the execution of the tasks provided for by law, even if they do not come directly from the authorities. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 30 October 2002 case file II SA 1956/02, the Voivodeship Administrative Court in Opole in its judgment of 17 January 2008 case file II SAB/Op 20/07, the Voivodeship Administrative Court in Warsaw in its judgmet of 16 July 2008 case file II SA/Wa 721/08, the Voivodeship Administrative Court in Warsaw in its judgmet of 26 June 2008 case file II SA/Wa 111/08. The criterion for determining the disclosure and availability of the documents under the API is not their authorship, but the opinion that they are used to carry out public duties, and were prepared at the request of public authorities, when at the same time, their content and does not violate the privacy of an individual or trade secrets of business. It is not about the disposal of copyright, but about access to the content of the document that was created on behalf of the public authority to carry out public duties. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11, by the Supreme Administrative Court in its judgment of 7 December 2010 case file I OSK 1774/10, by the Supreme Administrative Court in its judgment of 18 September 2008 case file I OSK 315/08, by the Supreme Administrative Court in its judgment of 9 February 2007 case file I OSK 517/06. Not all opinions or expertise, that were created by a public authority or on behalf of public authorities, are public information. The classification of legal opinion in documents that are available under the API is determined by the purpose for which it was prepared. A legal opinion prepared for the public authority on the merits of initiating future proceedings in a particular civil case does not constitute public information for the purposes of Article 1 of the API. It was confirmed by the Supreme Administrative Court in its judgment of 16 June 2009 case file I OSK 89/09. An expertise that specifically relate to a given legislative proposal for which the legislative process continues, are deemed as public information. These documents relate to the facts, of such, is the legislative proposal submitted to the competent authority in the legislative procedure. It was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. If a disclosure of public information threatens the common or individual interests, there is the possibility to restrict the access to such information by refusing its disclousure by an administrative decision that should be based on the provisions of Article 16 of the API. The expertise prepared by the Polish Information Processing Society for the Ministry, associated with the formation by that authority of systems, and the preparation of examinations for persons applying for a certificate of qualification for the controllers and communication systems, satisfy the conditions of public information, because they concern the implementation of tasks by the public authority. If the the expertise concerned computerization and informatization of the public sphere and involved the expenditure of public funds, therefore it is public information, because it refers to the public affairs, which is the issue of computer software/programs in the implementation of public tasks, and how they are used and implemented, the implementation and impact of these tasks and information on public property, including property of the State Treasury.

There was also a specific issue of the expropriation of copyright for public purpose. Article 1 of the Polish Act on Authors Rights and Neighbouring Rights provides that the subject of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). Opinions and expertise made ​​by qualified persons or entities meet the statutory definition. According to Article 4 of the ARNR, the copyright should not apply to legislative acts and their official drafts, official documents, materials, logos and symbols. Expertises commissioned by the Ministry, are official documents within the meaning of the Article 4(2) of the ARNR. They are used as a servant in decision-making process of the executive authority and are not the subject of copyright. The Polish Supreme Court and the Supreme Administrative Court agree that the official documents are materials that come from the office or other state institution or concerned official matters, or was the result of application of the official proceedings. As it was decided by the Supreme Court in its judgment of 26 September 2001 case file IV CKN 458/00, and by the Supreme Administrative Court in its judgment of 19 February 1997 case file I SA/Kr 1062/96. The effectiveness of social control and supervision over the information used on completion of assigned tasks of public authority correspond with such understanding of the relationship between the provisions of Article 1 of the API and Article of the ARNR. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. Hence, the definition of an official document, provided in Article 6(2) of the API does not provide a basis for restricting access to public information, defined in the Article 1(1) of the API, including the catalog of examples contained in Article 6(1) of the API.

Categories: Art. 1 ARNR | Art. 1(1) API | Art. 16 API | Art. 4 ARNR | Art. 6 API | computer law | copyright law | copyright ownership | e-documents | e-law issues | e-services | expropriation of copyright | legal regulations on computer networks | Polish Act on Access to Public Information | Polish Act on Authors Rights and Neighbouring Rights | Polish courts | Polish law | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

Access to public information, case I OSK 1550/11

May 7th, 2012, Tomasz Rychlicki

On 22 November 2010, Bogusław Kler, a Polish patent and trade mark attorney, requested the President of the Polish Patent Office to disclose public information concerning the word trade mark PRINCE POLO R-148617, in order to know, whether during the examination, the trade mark POLO R-69429, or other marks containing this word were taken into account, and in particular, if the expert who was proceeding and examining the trade mark application, noted and listed any signs with the word “polo” in the examination card of the trade mark PRINCE POLO R-148617. In addition, Mr Kler requested for information on whether in a possible conflict between “Prince Polo” and the earlier “POLO” signs, the examiner considered any settlement actions of the owners of such trade marks, indicating that he is not requesting the full texts of documents, but seeking to confirm whether such documents if any, were submitted to the trade mark file and they were used in the assessment for the trade mark PRINCE POLO.

The President of the PPO expressed the opinion that the examination card of the trade mark PRINCE POLO R-148617 is not deemed as public information, because it is not directed the parties of the proceedings, and therefore it cannot be disclosed. With regard to information on materials concerning possible settlement between the trademark owners, the President explained that such information can be obtained by directly asking the entitled entities. At the same time, the President pointed out that decisions on the granting of exclusive rights belong to independent experts, and the requested filed by Mr Kler can be read as an unfounded and unjustifiable attempt to control of examinations conducted by experts and the procedures for the granting of exclusive rights. The President argued that such control process of the legality of decisions undertaken by the Polish Patent Office falls within the competence of administrative courts. The method of preparing and filing of the examination card of a trade mark is not regulated in any legislation being in force. Information to be included in it depends on the expert. The examination card is somehow a reflection of thinking of a person who was handling a given case.

Bogusław Kler filed a complaint for failure to act (administrative inaction). Mr Kler argued that the President of the PPO did not consider his request or did not issue a refusal decision.

The Voivodeship Administrative Court in its judgment of 13 May 2011 case file II SAB/Wa 88/11 dismissed the complaint. The VAC held that information requested by Mr Kler is not public, in particular, these are not public data. The Court held that the examination card is not an official document since it does not contain a declaration of will/intent or knowledge of a public official. Based on the card, it is not possible to unambiguously determine conditions, that were followed by the authority granting the right of protection for a trade mark. The card is a working internal document of the PPO, which provides information of operational activities aimed at a comprehensive assessment and examination of the validity and legitimacy for granting the protection of the sign applied for. Mr Kler filed a cassation complaint.

The Supreme Administrative Court in its judgment of 1 December 2011 case file I OSK 1550/11 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC held that according the Constitution of the Republic of Poland, a citizen should have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right should also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury. Limitations upon the right of information may be imposed by the Act solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. The principle of the “right to information” provided in the Constitution sets basic rules of interpretation of this right. It is a constitutional right, therefore, the law defining the procedures for access to information should be interpreted broadly, and any exceptions to this right should be construed and interpreted narrowly. This implies the use in relation to these acts of interpretation, which favor expanding rather than narrowing the obligation to disclose information. The enumeration, what is deemed as public information, is provided in the Polish Act on Access to Public Information, however this enumeration includes exemplary situations, and it does not cover all cases in which information is disclosed. The Court noted that public information is each information or data that was created or referred to the widely defined public authorities, or was created or referred to other entities performing public functions in the execution of tasks of public authority. The Supreme Administrative Court shared the view that all files of entire administrative proceedings conducted by a public authority, constitutes public information – including both documents created and held by the authority in connection with a particular case. Therefore, the Court held that, in principle, all that is in the file of the proceedings, regardless of whether it will be a public document or private, should be disclosed. It does not matter whether the document in the file is an “internal” or “working”. Even giving up the assumption that the whole proceedings constitute public information, it cannot be excluded that given documents from these files have such nature. In each case, every request for disclosure of public information requires a detailed analysis. Only as a result of such analysis, the authority should decide whether the requested information is public, followed by what standards govern the procedure of its disclosure.

Categories: Art. 133 §1 PBAC | Art. 141 §4 PBAC | Art. 151 PBAC | Art. 4(1) API | Art. 6 API | Art. 61 Constitution | e-access | e-law issues | Polish Act on Access to Public Information | Polish Act on Proceedings Before Administrative Courts | Polish Chamber of Patent Attorneys | Polish Constitution | Polish courts | Polish institutions | Polish patent attorneys | Polish Patent Office | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

E-access to public information, case I OSK 2172/11

April 20th, 2012, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 3 February 2012 case file I OSK 2172/11 dismissed the complaint against the judgment of the Voivodeship Administrative Court in Warsaw of 25 August 2011 case file II SAB/Wa 87/11 in which the court ruled that e-mail correspondence of employees of the Agency for Restructuring and Modernisation of Agriculture (ARMA) is not deemed as public information.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 6 API | computer law | e-access | e-documents | e-law issues | Polish Act on Access to Public Information | Polish Supreme Administrative Court | public information.

E-access to public information, case I OSK 666/12

December 18th, 2011, Tomasz Rychlicki

The Association of Leaders of Local Civic Groups (SLLGO) requested the Polish Prime Minister Donald Tusk to disclose the correspondence, including e-mails, of members of the Council of Ministers and their assistants, that concerned the revision 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. The Prime Minister refused, arguing that such e-mails are not public information, because this is internal correspondence. The SSLGO filed a complaint for failure to act.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2011 case file II SAB/Wa 295/11 agreed with the SSLGO and decided that e-mail correspondence in this case was not private, but it should be deemed as public information and properly disclosed, as it was requested by the Association, because it concerned amendments to the API. The Court noted that such e-mails relate to public affairs, as it was previously mentioned by the Voivodeship Administrative Court in its judgment of 16 January 2004 case file II SAB 364/0. The Prime Minister filed a cassation complaint.

The Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 666/12 annulled the contested judgment. The Court held that the requested e-mails are not public information.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | e-access | e-documents | e-law issues | Polish Act on Access to Public Information | public information | Voivodeship Administrative Court.

Access to public information, case I OSK 667/11

October 23rd, 2011, Tomasz Rychlicki

The mayor of the Polish town Rabka-Zdrój refused to disclose land-use planning maps. The request was filed according to the provisions 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. The mayor decided that copyright law does not allow for the disclosure, because these maps were created by the Studio of Architecture and Urban Design from Kraków. The applicant filed a complaint against this decision. The Voivodeship Administrative Court in Kraków in its judgment of 22 November 2010 case file II SAB/Kr 114/10 ordered to provide the requested information. The Mayor filed a cassation complaint.

The Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11 dismissed it, and held that as public information are deemed not only documents that were directly created/edited and produced by a public authority, but such a character have also documents that the authority uses to carry out the tasks entrusted to the law, even if the copyrights belong to another entity. The most important is the fact, that these documents are used to carry out public tasks by certain authorities and have been produced on behalf of those bodies. Therefore, it is not about exercising copyrights, but about the access to the content of the document that was created on behalf of public administration in order to carry out public tasks. The SAC noted that this opinion is already established in the case law of administrative courts for many years. For instance, the judgment of the Supreme Administrative court of 9 February 2007 case file I OSK 517/06, the judgment of the SAC of 7 December 2010 case file I OSK 1774/10, or the judgment of the SAC of 18 September 2008 case file I OSK 315/08.

In this case, the Court had no doubt that the maps were made in order to perform a specific public task, and were commissioned by public administration body. Its disclosure is not deemed as exercise of the copyright, but as the implementation of the right to access public information. If, there were statutory barriers to disclose such information in a certain way or in a particular form, or there were statutory grounds for refusal of access to public information, the Mayor was obliged to deal with the request in the form of process. However, the lack of disclosure, and lack of procedural decisions in this matter meant, that it was administrative inaction.

Categories: Art. 14 API | Art. 184 PBAC | Art. 3 § 2 pt 4 PBAC | Art. 54 PBAC | Art. 6 API | e-access | e-documents | e-law issues | Polish Act on Access to Public Information | Polish Act on Proceedings Before Administrative Courts | Polish Supreme Administrative Court | public information.

E-access to public information, case IV SA/Gl 1002/11

October 14th, 2011, Tomasz Rychlicki

A journalists requested one of the Polish companies to disclose information about the earnings of its directors (CEOs) and members of the supervisory board. He also wanted to know how many prizes, bonuses and other financial inducements were received by the CEO and the board members in the last three years, and how much the company has spent on advertising and promotion, how much spending and subsidies were distributed for non-governmental organizations, staff training, banquets and small meetings. He also demanded the indication of dates, names and amounts, the method of selecting contractors. This request was based on the provisions 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. The journalist noted that the expected response should be sent to him via e-mail. The company provided information only on salaries, and refused to disclose other information that was subject to the request. The decision has been sent in the form of an electronic document to an e-mail address provided by a journalist. The company noted that other information belong to the category of “processed information”, therefore, the applicant has to indicate why the disclosure of such information is particularly important for the public interest. The journalist filed a complaint against this decision.

The Voivodeship Administrative Court in Gliwice in its judgment of 19 September 2011 case file IV SA/Gl 1002/11 rejected it, because of procedural reasons. However, the VAC held that the administration decision issued in the form of an electronic document must be signed by a secure electronic signature that is verifiable by a valid qualified certificate. The administrative decision that does not meet these requirements can not be regarded as signed, and therefore is not valid according to the provisions of Article 14 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

Article 14. Principle of written proceedings
§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Informatization of Operation of Entities Performing Public Tasks (Journal of Laws No. 64, item 565, as ammended), to be served by means of electronic communication.

The VAC also noted that in this case the decision has not been delivered in the proper form.

Article 110.
The public administration body issuing the decision shall be bound by it from the time of its service or publication, unless the Code provides otherwise.

Although in this case the content of the decision was known but it was not delivered in the form provided in the provisions of the APC. The decision was in fact delivered in writing but it was served by electronic means and in a way that was inconsistent with the provisions of APC, which could not be considered as effective service.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08“, “E-signatures in Poland“, and “Polish case law on e-access to public information“.

Categories: Art. 107 §1 APC | Art. 110 APC | Art. 14 §1 APC | Art. 58 PBAC | computer law | e-access | e-documents | e-law issues | e-signature | legal regulations on computer networks | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | public information | Voivodeship Administrative Court.

Access to public information, case I OSK 933/11

September 5th, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 11 August 2011 case file I OSK 933/11 held that the provisions of Article 418a of the CRC does not specify different rules and procedures for disclosure and access to public information, which is a court judgment in a criminal case. Judgments, decisions of the courts and their justifications – decided both in civil, criminal and administrative proceedings – are therefore deemed s public information and should be disclosed under the provisions of Article 1(2) 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. See also “Access to public information, case I OSK 896/12“.

Categories: Art. 1(1) API | e-access | e-documents | e-law issues | open standards | Polish Act on Access to Public Information | Polish Supreme Administrative Court | public information.

E-access to public information, case IV SAB/Gl 36/11

August 24th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Gliwice in its judgment of 2 August 2011 case file II SAB/Wa 86/07 held that the request filed in the electronic form i.e via e-mail, is a deemed as a sufficient request for disclosure of public information. The Court repeated the rule that the request for disclosure of public information can take any form, unless it is sufficiently clear what is requested. The VAC ruled that in order to facilitate the submission of applications, public bodies may prepare their own forms, but the disclosure of public information can not be conditional, based on which form such a request is made.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 4(1) API | e-access | e-law issues | Polish Act on Access to Public Information | public information | Voivodeship Administrative Court.

Access to public information, case V Ca 2388/10

November 9th, 2010, Tomasz Rychlicki

Professor Janusz S. Bień requested the Institute of Literary Research of the Polish Academy of Sciences to disclose public information on the license agreement, concerning the online version of the Dictionary of the Polish language of the sixteenth century. The request was filed under 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. Mr Bień did not receive the requested information, but also was not denied this information in the form of an administrative decision. As a result, prof. Bień brought an action for failure to act. The Voivodeship Administrative Court in Warsaw, in its judgment of 18 June, 2009 case file II SAB/Wa 14/09 ordered the Director of the Institute of Literary Research to examine the request.

On 13 August 2009, the Institute of Literary Research refused to provide requested public information because of the secret of the entrepreneur. The basis for refusal was Article 5(2) of the API.

Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.

The entity, which was denied the access to the public information in respect to its exclusion of its openness when quoting the protection of personal data, the right to privacy and the secret other than state, official, treasury or statistical secret, is entitled to put an action to the court for making such information available. Professor decided to bring an action.

The Regional Court for Warszawa Śródmieście I Civil Division in its judgment of 12 March 2010 case file I C 1305/09, dismissed the action because the prof. Bien has not demonstrated that he is legally entitled to obtain a photocopy of the disputed agreement. The Court arbitrarily assumed that as a basis for disclose of a photocopy of the disputed agreement should be used Article 222 § 1 of the Civil Code governing the claim of the owner of a thing against the person who actually possess it (rei vindicatio).

Article 222. § 1. The owner may demand of a person who has actual control of a thing to release that thing to him unless that person has the right, effective with respect to the owner, to control the thing.
§ 2. The owner shall have the right to claim restitution of his lawful position and abstention from infringements of law, against a person who infringes his ownership otherwise than by depriving the owner of the actual control of a thing.

Professor Bień appealed. The District Court in Warsaw, V Civil Division, in its judgment of 9 November 2010 case file V Ca 2388/10, annulled the contested judgment and ordered Institute of Literary Research of the Polish Academy of Sciences to provide photocopies of the agreement.

Categories: Art. 222 CC | Art. 5(2) API | copyright law | copyright misuse | Polish Act on Access to Public Information | Polish Appeallate Court | Polish Civil Code | Polish Regional Court | public information | Voivodeship Administrative Court.

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“.

Categories: Art. 16 API | personal data | Polish Act on Access to Public Information | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

E-access to public information, case I OSK 1727/09

September 4th, 2010, Tomasz Rychlicki

A Polish law firm requested the Office of the Attorney General of the State Treasury to disclose public information in the form of all unfavorable for the State Treasury decisions of common courts and the Supreme Court along with their written justifications, issued in 2008, in cases of reprivatization, in which the State Treasury was represented by the Attorney General of the State Treasury. The President of the Office of the Attorney General of the State Treasury refused and argued that the requested information has the nature of information processed, therefore, the applicant must also show particularly important public interest. The law firm filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 23 September 2009 case file II SA/Wa 978/09 reversed the contested decision and held that legal commentators and the case-law formed the view that information deemed as simple is information that its substance does not change prior to its disclosure. However, the processed information is qualitatively new information that did not exist in the final content and form, although its source is in the materials held by the entity obliged to disclose such information. Thus, a fundamental feature that distinguishes processed public information from simple public information is that the authority does not posses processed public information, and for its production, it is necessary to carry out certain operations and activities on simple public information held by the entity, which results in the creation of the new quality of information. This new quality information is not only technically another compilation of existing information – another way of ranking previously held information, but different, qualitatively new information, usually leading to a specific assessment of the phenomenon, whether a particular interpretation, finding differences or similarities. In order to produce the processed information it is necessary to submit information under analysis, synthesis and produce in this way a new quality of information that does not result from the wording of any unit of information that was subject to processing, in general, it results from the sum of (a set of) individual pieces of information that has been processed. Therefore, the processed information does not results from a different order of possessed information, but from the new immanent quality that was obtained from the processing of new information. Only ranking and listing of judgments according to a specific criterion does not bear characteristic of processed information, but it has the nature of labor-intensive information, and creations of such information can only decide on the cost of production. Time-consuming, costly and organizational difficulties – technical or office that are associated with the creation and development of a public information cannot be treated as the exempt from the obligation to disclose of such information. Actions devoted to the necessary anonymization of the selected judgments do not constitute the production of processed information, because the anonymization process is a technical operation, as a result of which new information is not created.

The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 1727/09 dismissed the cassation complaint filed by the President of the Office of the Attorney General of the State Treasury.

See also “Polish case law on e-access to public information“.

Categories: Art. 4(1) API | computer law | database protection law | e-access | e-documents | e-law issues | legal regulations on computer networks | open standards | Polish Act on Access to Public Information | Polish Supreme Administrative Court | public information.

E-access to public information, case I C 19/10

April 29th, 2010, Tomasz Rychlicki

Grzegorz W. made a request for access to minutes of meetings of the audit committee of the city council. He asked that the information was sent to his home address. The Municipality and City Czerwionka – Leszczyny replied that it is possible to get acquaint with the requested documents in their virtual version that was published in the Bulletin of Public Information. There was also an option to obtain a photocopy or computer file upon application and payment of a fee based on 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 Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.

Grzegorz W. informed the Municipality and City Czerwionka – Leszczyny that he expects to receive the documents in the form of photocopies. All documents were sent along with the request for payment based on the rules issued by the Mayor on charges for making the public information available. Grzegorz W. refused to pay and urged the Mayor to amend the ordinance in question, as it was incompatible with the provisions of Articles 7(2) and 15(2) of the API.

Article 7. 1. Making public information available takes place by means of:
1) announcing public information, including official documents, in the Public Information Bulletin, mentioned in Article 8,
2) making it available, mentioned in Articles 10 and 11,
3) entrance into the meetings of the bodies, defined in Article 3, it. 1, point 3, and making the materials available, including the audio-visual and tele-communicating, documenting these meetings.
2. Access to public information is free, with the stipulation of Article 15.

Article 15. 1. If as a result of making public information on the petition, defined in Article 10, it. 1, the entity obliged to do this, is to incur the additional costs connected with the method defined in the petition of a method of making it available or necessity to transform the information in the form pointed in the petition, this entity is entitled to the payment from the petitioner covering these costs.
2. The entity, defined in it. 1, within 14 days of submitting the petition, shall notify the petitioner of the amount of the payment. Making the information available in accordance with the petition takes place after the expiration of the period of 14 days of notifying the petitioner unless the petitioner makes within this period the change in the petition in the scope of method and form of making this information available or withdraw the petition.

After very active exchange of letters and calls between both parties, the case went to the court. On 7 October 2009, the Referee in the Regional Court Katowice Wschód in Katowice made the order in the admonition proceedings case file I Nc 1140/09/13 and adjudged Grzegorz W. to pay 14,58 PLN plus costs of the proceedings. Grzegorz W. filed an objection against the order and the Municipality and City Czerwionka – Leszczyny sustained their claims. The Regional Court Katowice Wchód in Katowice in its judgment of 27 April 2010 case file I C 19/10 rejected all claims filed by the Municipality and City Czerwionka – Leszczyny. The Court held that Article 7(2) of the API introduced the principle of free access to public information. All exceptions to this rule are provided in Article 15(2) of the API. There are only two exceptions to the principle of free access. The first concerns the method (form) of making the information available and the second concerns a situation in which additional costs are associated with the transformation of the requested information. According to the Court, the forms should be understood by both the particular shape of the information held, which requires additional effort (for instance digitization and processing of documents held by the entity) and as a special way of making such information available. The Court also noted that the entity making the information available is obliged to ensure the possibility of copying of public information or its printout or sending the public information or transferring it to the appropriate, commonly used information carrier. The Court held that the Municipality and City Czerwionka – Leszczyny should also demonstrate that it had incurred additional costs. Finally, the Court also held that making the price-lists and introducing flat-rate charges for making the public information available, violates the provisions of the API because each price-list/tariff is a form of lump sum and this does not correspond to the essence of the costs actually incurred. Article 15(1) of the API indicates the additional costs and therefore the costs that were actually incurred by a given entity.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 12 API | Art. 15(2) API | Art. 7(2) API | e-access | e-documents | Polish Act on Access to Public Information | Polish Regional Court | public information.

Access to public information, case II SAB/Wa 155/09

March 3rd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 4 February 2010 case file II SAB/Wa 155/09 held that it should be noted that the status of public information is not only afforded to documents directly prepared/edited and technically produced by a public authority, but also to those whose the authority uses to carry out the tasks specified by the law, even when the copyrights belong to another entity. So therefore as documents being the subject of disclosure of public information as defined in the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, should be deemed the expertises/opinions made for the authority that is required to make the public information available, if such documents are used to perform its task, even if the copyright on these opinions belong to other entities.

The Court held that the overriding principle related to disclosure of public information, is to provide such information. The problem of subsequent use of the documents covered by copyright is not governed by the API, but may be subject to any claims as defined by copyright law and civil law. However, this issue cannot justify the refusal to disclose public information, because the only limits are rules on secrets protected by law. In this case, a natural person requested the expertise prepared for the Ministry of Internal Affairs and Administration, in connection with the creation by this body of IT systems. Such documents in the light of the above-mentioned conclusions are deemed as public information, and therefore should be disclosed, if there is no data that are secrecy protected by law.

Categories: Art. 1(1) API | copyright law | copyright ownership | copyrightable subject matter | Polish Act on Access to Public Information | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Wa 86/07

February 20th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 10 December 2007 case file II SAB/Wa 86/07 held that the request filed in the electronic form (e-mail), that was not signed with the qualified electronic signature, is a legally sufficient request for disclosure of public information. Furthermore, the request for disclosure of public information does not initiate the administrative proceedings and it is not intended to finalize the proceedings with the refusal. It is logical and obvious that applicant’s intention is to obtain information and not to receive a negative decision. The request for public information can take any form, unless it is sufficiently clear what is requested.

See also “Polish case law on e-access to public information” and “E-signatures in Poland“.

Categories: Art. 16 API | e-access | e-documents | e-proceedings | e-signature | Polish Act on Access to Public Information | Polish Act on Electronic Signature | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/Sz 148/09

February 20th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Szczecin in its judgment of 16 December 2009 case file II SAB/Sz 148/09 held that the general principle set in article 61 of the Polish Constitution, is the access to information on the activities of public authorities. Any exceptions to this rule should be formulated explicitly, and all doubts should be resolved in favor of the access.

Article 61
1. A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

2. The right to obtain information shall ensure access to documents and entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings.

3. Limitations upon the rights referred to in paras. 1 and 2 above, may be imposed by statute solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State.

4. The procedure for the provision of information, referred to in paras. 1 and 2 above shall be specified by statute, and regarding the Sejm and the Senate by their rules of procedure.

Judgments of the Polish courts are information on public matters 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 Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.

The Court held that according to article 6(1) point 4 letter (a) of the API, a judgment is an official document that should be made available according to the procedures and principles set in the API.

Article 6(1)
The following information is subject to being made available, in particular on:
(…)
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,

The Court also noted that anyone is allowed to request the access to public information in electronic form or in the traditional way, on paper.

See also “Polish case law on e-access to public information“.

Categories: Art. 1(1) API | Art. 6 API | Art. 61 Constitution | e-access | e-documents | e-proceedings | Polish Act on Access to Public Information | Polish Constitution | public information | Voivodeship Administrative Court.

E-access to public information, case II SAB/ Wa 57/09

February 18th, 2010, Tomasz Rychlicki

In 2008, the Polish media reported a story on the Polish Post which allegedly tested a system that scans envelopes and parcels. There were rumours that information gathered by such scanning could be used by the Internal Security Agency (ABW). ABW denied, but the Inspector General for Personal Data Protection has decided to investigate how the collected data are processed during the scan. Roman P. has requested the GIODO to make available the results of the investigation. Since Roman P. filed his request by phone and then by e-mail, the GIODO informed that it will consider the request only after it receives personal data of Roman P.

The GIODO based its opinion on the provisions of Article 63 § 3 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

§ 1. Applications (requests, explanations, appeals, complaints) may be filed in writing or by telegram, telex, fax, email or by using the form available on the website of the competent public administration, allowing data entry into the communications system of the body, as well as verbally to the protocol.

§ 2 The application shall include at least an indication of the person from whom it comes, its address and it shall satisfy other requirements stipulated in the special regulations.

§ 3 The application submitted in writing or orally to the protocol shall be signed by the applicant, and also by an employee who made the protocol. When the application is filed by a person who can not or do not know how to make a signature, the application or a protocol is signed by other person authorized, by making a reference next to the signature.

The GIODO decided that the application filed by Roman P. shall indicate the person from whom it derives, its address and the scope of the request, otherwise, the request will not be examined.

Roman P. brought a complaint against this decisopn. The Voivodeship Administrative Court in Warsaw in its judgment case file II SAB/ Wa 57/09 ruled that the GIODO failed to act and ordered the Inspector General for Personal Data Protection to examine Roman P. request within 14 days because information he demanded, is deemed as the public information as defined in Article 5(2) 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. The Court also ruled that arguments and findings to leave the application without further examination, because it was sent by e-mail, have no support in the APC.

See also “Polish case law on e-access to public information“.

Categories: Art. 5(2) API | Art. 63 APC | computer law | e-access | e-documents | e-proceedings | Polish Act on Access to Public Information | Polish Administrative Proceedings Code | Polish courts | Polish law | public information | Voivodeship Administrative Court.

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