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Archive for: Art. 61 Constitution

Personal data protection, I CSK 190/12

August 29th, 2013, Tomasz Rychlicki

The Supreme Court in its judgment of 8 November 2012 case file I CSK 190/12 held that without a doubt, the first name and surname constitute personal data of the individual, therefore, the important question arose, whether they belong to the scope of the individual’s privacy as understood in the provisions of 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.

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.

Previous opinions of the Supreme Court on the relationship between the right to protect of personal data and the right to privacy are not clear. They were formulated mainly from the point of view of the protection of personal interests as defined in Articles 23 and 24 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.

Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.

The Supreme Court in its judgment of 15 February 2008 case file I CSK 358/07 (published in OSNC 2009, no. 4, item 63) ruled that legal commentators and case law of the Constitutional Court agree that the right to protect of personal data is derived directly from personal rights such as human dignity and the right to privacy, citing judgments of the Polish Constitutional Tribunal of 19 February 2002 case file U 3/01 (published in OTK-A 2002, no. 1, item 3) and of 12 November 2002 case file SK 40/01 (published in OTK-A 2002, no. 6, item 81). Nowadays, the collection and processing of the personal data is technically relatively simple, therefore it is necessary to protect a person against uncontrolled collection and use of his or her personal data, often without the contribution or even awareness of the person concerned. For these reasons, the legislator specifically regulated the issues of data collection, processing, use and protection of personal data in the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. While interpreting its provisions, one cannot ignore the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and its preamble that explicitly states that data-processing systems are designed to serve man, whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy. The Supreme Court in its judgment of 28 April 2004 III CK 442/02 (unpublished) stressed that when assessing whether there has been the breach of privacy protected by the law, this concept cannot be absolutized due to the degree of its generality, it requires interpretation, taking into account the specific circumstances of the situation. Events and circumstances that form the personal and family life can be classified as private sphere of life. The special nature of this area of man’s life justify the grant of its strong legal protection. However, this does not mean that any reference to a particular person was information in the field of his or her personal life. The regime of protection of privacy and personal data protection regime are therefore independent. Undoubtedly, when it comes to the relationships and the impact of these regimes, because in certain situations, the actual processing of personal data may result in a violation of personal interests in the form of the right to privacy, or protection of the right to privacy will required the objection to the use of personal data. It is difficult to unequivocally determine whether the disclosure of the first name and the surname of an individual by a local government violates his or her right to privacy. This problem can be resolved only while assessing particular circumstances of each case. In this case, the city was requested to disclose the names of individuals with whom it has entered into a contract of mandate and contract of work. One of these contracts concerned preparation and delivery of a lecture. It was difficult for the Court to accept that anonymization and hiding of the surname of a person giving such a lecture would have any meaning. Other agreements related to use of the electronic system of sociological analysis and organization of the conference. They were entered by specific individuals with a public body, which was the city. These people had to reckon with the fact that their personal data will not remain anonymous. For a person requesting access to public information related contracts entered by a local authority, names of parties to such agreements are often more important than the content, and it is understandable for obvious reasons. It would be difficult in this case to defend the view that the disclosure of names of people in the present context would be deemed as a limitation on the exercise of constitutional freedoms and rights of these persons. It had therefore to be assumed, that the disclosure of the names of persons entering civil contracts with a local authority does not affect the right to privacy of those persons referred to in Article 5(2) of the API.

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.

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“.

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 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.

E-access to public information, case I OSK 190/06

September 4th, 2009, Tomasz Rychlicki

On 6 June 2004, the editor in chief of one of the Polish magazines requested the Minister of Internal Affairs and Administration for access and disclosure of the list of entrepreneurs who have been authorized to carry out business activity in the detectives and investigation services. The spokesman of the Minister replied that the registry of companies to whom such permits and licenses have been granted, as a whole, constitutes a database within the meaning of Article 2(1) point 1 of the Polish of 27 July 2001 on Protection of Databases – APD – (in Polish: Ustawa o ochronie baz danych), published in Journal of Laws (Dziennik Ustaw) No. 128, item 1402 with subsequent amendments. The whole structure of the registry is subject to legal protection and the its individual availability must be understood as the possibility to receive information about a specific item of the database. There are no procedural obstacles that the interested parties may receive information or data about a particular entrepreneur to whom the permit has been issued. So, as a general rule, the access to information contained in the registry is open, it does not mean, however, that the entire database should be disclosed – as a legal structure. The magazine filed a complaint on failure to act. The case went through all instances.

The Supreme Administrative Court in its judgment of 14 March 2006 case file I OSK 190/06 dismissed it the cassation complaint filed by the editorial team of the magazine.

Access to public information, case II GSK 459/07

August 7th, 2008, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 20 March 2008 case file II GSK 459/07 held at the begining of judgment’s justification that administrative decisions are public information within the meaning of article 1(1) of the API and may be disclosed, in accordance with 6(1) pt 4 letter a, first tiret of the API. According to the SAC, after completion of the application proceedings, including any inter partes proceedings, article 251 of the IPL will no longer be applicable, and access to case files will be based on the general provisions of the API. Pursuant to article2(2) of the API, the Authority cannot require to prove legitemate or factual interest from the person entitled to a right to public information.

The Court also held that not all documents from the case file should be considered public information. Such nature have only official documents. Pursuant to article 6(2) of the API, an official document within the meaning of the Act is the content of the declaration of will or knowledge, recorded and signed, in any form by a public official under the provisions of the Penal Code, within its competence, that is addressed to another entity or put to the file.