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Archive for: Art. 16 API

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.

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.

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.

Copyright law, case I OSK 678/11

November 3rd, 2011, Tomasz Rychlicki

This is the continuation of the story described in “Copyright law, case II SAB/Łd 53/10“. The Supreme Administrative Court in its judgment of 21 July 2011 case file I OSK 678/11 ruled that copyrighted works in the form of test questions, if they are used for the state exam, become official documents, and the unused questions, which are the so-called “pool of questions” are deemed as documentary material for the purposes of Article 4(2) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

Art. 4. The following shall not be protected by copyright:
(1) normative texts and the drafts thereof,
(2) official documents, documentary material, devices and symbols,
(3) descriptions of patents and other protection titles,
(4) mere news items.

The court emphasized that different types of materials that are in the possession of the public bodies are not public information, because their content (intellectual property content) is not used or was not used in dealing with any of the public cases, and thus such material did not acquire the characteristics of official documents. Therefore, the argument raised in the cassation complaint that a particular set of questions or a single question from the pool of questions, that was not used in the state exam should be disclosed, was completely groundless.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case II SAB/Łd 53/10

June 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 20 December 2010 case file II SAB/Łd 53/10 ruled that the fact that different authors created questions from different fields of medicine for the National Specialist Examination, and these questions are copyrightable works within the meaning of the Article 1(1) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments, does not exclude the possibility that the Authority could create, on the basis of these works, the examination test that will be used to carry out the National Specialist Examination.

Article 1(1). The subject matter of copyright is any expression of creative activity having individual character and manifested in any material form, regardless of the value, intended purpose and manner of expression thereof (work).

Art. 4. The following shall not be protected by copyright:
(1) normative texts and the drafts thereof,
(2) official documents, documentary material, devices and symbols,

Therefore, the works used for the state examination are deemed as official documents and the unused questions which are known as the “pool of questions” are official documentary materials within the meaning of Article 4(2) of the ARNR.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

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.

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“.