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Archive for: Art. 4(1) API

Access to public information, case I OSK 2093/14

November 9th, 2015, Tomasz Rychlicki

The ePaństwo Foundation requested the President of the Supreme Court to disclose information on agreements entered between the Supreme Court and the commercial publishers of case-law of the Supreme Court. First, the President refused to initiate proceedings in this case. The Foundation filed a complaint against such order. The Voivodeship Administrative Court in its judgment of 10 January 2012 case file II SA/Wa 2259/11 repealed it, and the President filed a cassation complaint that was dismissed by the Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 916/12. The First President of the Supreme Court in its letter of 6 December 2012 informed the Foundation that the requested information is not public. The Foundation filed a complaint against the inactivity of the President. The Voivodeship Administrative Court in its judgment of 19 February 2014 case file II SAB/Wa 443/13 obliged the President to consider the request. The President filed a cassation comaplaint.

The Supreme Administrative Court in its judgment of 30 September 2015 case file I OSK 2093/14 dismissed it and ruled that the First President of the Polish Supreme Court has to disclose the requested information. In the meantime, someone else has obtained all the requested agreements and made their copies available online.

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“.

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.

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.

Access to public information, case III SAB/ Lu 1/09

May 13th, 2011, Tomasz Rychlicki

A Polish citizen requested the President of one of the Regional courts to disclose the calendar of causes that concerned his case. The President informed that the calendar of causes cannot be disclosed, because the regulation on the work of common courts does not permit for such disclosure after the calendar is deposited in the court’s records. Jan H. filed a complaint for failure to act, claiming President’s inaction in his case.

The Voivodeship Administrative Court in Lublin in its judgment of 2 July 2009 case file III SAB/Lu 1/09 held that the regional court is a public authority under the 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, and is therefore obliged to provide public information. Jan H. has the right to request the disclosure of public information, because everyone has that right, and what’s more important, the person exercising the right to public information is not required to demonstrate his or her legal or factual interest. The calendar of cases and dockets includes a list of cases that are heard in a given day by a court in a particular composition, and as such is deemed as public information, that concerns the work and operation of a public authority, which in this case, was the Regional court. Thus, the citizen’s request has to be considered in terms of request for public information. The VAC noted that internal regulations on the office work cannot be the basis on deciding on civil rights.

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.

Polish Patent Office, case II SAB/Wa 99/06

November 25th, 2006, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 24 November 2006, case file II SAB/Wa 99/06, ruled that the public authorities or other bodies performing public functions, in particular the public offices and departments, are required to make public information available in accordance with provisions of article 4(1) point 1 of of the 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 later amendments.

Therefore, there was no doubt for the VAC that in the light of the aforementioned regulation, the Polish Patent Office is the entity obliged to follow the provisions of the API. However, it was also undisputed, that the rules and the procedure on the access to documents including trade mark applications are governed by the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments, served as the basis for the decision to refuse to grant a right of protection.. The provisions of the IPL will constitute lex specialis in relation to the API.