Making public information available as a form of protection of the entities’ legal interest in the light of the regulations concerning the promulgation of normative acts and other selected legal acts

Access to public information is a prerequisite for the existence of civil society and the premise of the existence of a democratic state of law. As one of the forms of social control performed by entities interested in information, it constitutes a category serving to protect the legal interest of the individual. The subject of this control is the proper functioning of public authority entities and implementation of tasks aimed at satisfying the collective needs of citizens resulting from the coexistence of people in society. What is important in the context of widely understood notion of public affairs also includes the category of data on existing law, that is the content yet not in force and applicable legal regulations. A detailed indication of the legal basis, the permissible forms and methods of making information public is the subject of this paper.

From the freedom to receive and impart information to the right  to (public) information. The evolution of the case law of the European  Court of Human Right in the field of art. 10 of the Convention  for the Protection of Human Rights and Fundamental Freedoms

The text presents an analysis of the case law of the European Court of Human Rights concerning art. 10 paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. On the basis of selected judgments of the Court relating to article. 10 paragraph. 1 of the Convention in so far as guaranteed in the provision of “freedom to receive and impart information without interference by public authority”, this article presents the evolution of the case law of the Strasbourg Court. These considerations led to reconstruct jurisprudence standard of the European Court of Human Rights regarding the right to public information. The authors referre to the standard of protection of the right to public information guaranteed by the Polish Constitution and conclude that it cannot justify the thesis that the standard of protection of the right to information is higher in the Polish Constitution.

The analysis contained in the subject matter article focuses on two linked matters, which is the detailed description of the entitled one to perfom the constiutional right to access public information and the evaluation of the judgement of the Constitutional Tribunal of December 2nd (SK 36/14), in which it claimed that the constitutional protection of the right to access public information (article 61 of the Polish Constitution) is exclusively reserved for the benefit of citizens. 

Obtaining judgments of common and administrative courts under the law on access to public information

The purpose of this article is to examine, whether the amendment to the law on access to public information, dated on November 7 th , 2014, directly recognizing the content of judgments for public information, is in accordance with the existing line of case law and views of doctrine. At the same time the article is an invitation to discussion under what circumstances and in what form a refusal to provide the court judgment is allowed, especially for the sake of protection of privacy of individuals or in the case of request for processed information. This research is conducted with the use of legal dogmatic and descriptive method. The key assumption of this article is to state that the content of judgments is an example of simple (unprocessed) public information. Access to public information is not an absolute right, ergo it is subject to restrictions, among which the Author devotes special attention to the protection of privacy. Finally, it should be noted that in some cases, even anonymization of content of the judgment or refusal to make it available may in fact make the protection of privacy only illusory. It is therefore desirable to clarify by the legislator or case law the procedure for access to content of court judgments.

Constitutional Right to Access Public Information

One of the key elements determining modern democracies and interchangeably bound with their functioning is the guaranteed access to public information. This right might be pursued in various ways, often differently in identical factual and legal states of affairs. Therefore, it is indispensable to expressly determine the spectrum of units that are obliged to make certain data available, as well as indicate the exact scope of information that shall be available. The enforcement of precise provisions concerning the access to information is essential as it allows the implementation of a constitutional principle of a democratic state founded on the rule of law, as well as evokes the consciousness raising and civic attitude in society.

Implementation of the protection of the information interest of the entity as part of access to public information in the light of the draft law on transparency of public life

The right to gain public knowledge has recently become a matter of keen concern. Reasons of that state of affairs should be read into actions in establishment new regulations (The Openness of Public Life act) which are going to replace current act from 6 September 2018 Access to Public Information act. Negatively assessed project about “Openness of Public Life act” implements array of adjustments of current regulations which guarantee obtaining information about public affairs. It also implements new institutions and creates grounds for the occurrence of new “access methods” (more or less directed on broadening the implementation of the information protection interest of the unit). The study is devoted to isolate mentioned above and their judgment.

The right to access to public information in the  verdicts of administrative courts

The access to public information plays very important role in democratic society. He provides access to information about very important public matters, about activities of organs of public authority, public duties. The right to access to public information has been developed in Polen as a constitutional right only to the Constitution in 1997. Until the adoption and entry into force of the Act on access to public information, the Article 61 of Constitution was basic regulation which guaranteed access to public information. The right to access to public information was and is still developed in the verdicts of administrative courts. The administrative courts played very important role in configuration limits of protection this right.

Openness of Public Life as the Constitutional Rule of Access to Public Information and the Re-Use of Public Sector Information

The economic right to reuse public sector information derives from the entity’s fundamental right to acquire and disseminate information. It should be assumed that the Act on the re-use of public sector information is such a regulation that allows not only access to information but also the use of the public good for commercial and non-commercial purposes, which is the public information resource. However, the issue of the reuse of public sector information is also related to the principle of openness of public life expressed in constitutional provisions. The rights associated with this principle should be analyzed in the context of public subjective rights. This is also how the right applies to access to public information, but also the right to re-use public sector information, especially where public sector information meets the conditions of public information. The article undertakes an analysis of similarities and differences in the terms public information and public sector information.

The adoption of the UE Directive on Open Data and Re-use of Public Sector Information gives rise to necessity of its implementation by the Member States of the European Union. The process of implementing the Directive in Poland has also a significant constitutional value, because - according to the authors of this article - its content is realization of the principle of the common good (Article 1 of the Constitution of the Republic of Poland: “The Republic of Poland shall be the common good of all its citizens”). This is because data sharing has not only economic value, allowing the entity using access to public information to achieve a financial benefit, but also in other areas, where, in principle, both parties (a person and public authority) benefit from such action. Therefore, the role of public authorities should be to ensure the widest possible access to public sector information in order to implement the constitutional principle of the common good.

Access to public information in Poland is most typically discussed in the legal and political contexts. However, it is not consciously discussed as a possibility for political scholars to exercise their right of access to public information. This paper, which is of postulatory nature, identifies the benefits for those political scholars who decide to use, in the process of data collection, their right of access to public information as a data collection technique. The proposed technic of data collection may be used by scholars – political scientists around the world.

Gloss to the Judgment of the Supreme Administrative Court of 7 April 2022, file ref. no. III OSK 4374/21

In the commented judgment, the Supreme Administrative Court (hereinafter: the Supreme Administrative Court) made a significant confirmation of the effectiveness of sending applications by electronic means (ordinary e-mail) to entities obliged under the provisions of the Act on Access to Public Information, even when such an application (e-mail) does not go directly to the mailbox address or to the e-mail address of a specific person indicated as competent to accept them on behalf of the obligated party, but to spam, or other various defined folders in the IT system used by the obligated party. The author emphasizes the legitimacy of not only the ruling of the Supreme Administrative Court, but also its substantive justification.

Gloss on the Judgment of the Supreme Administrative Court of December 16, 2022, file ref. no. III OSK 5482/21

In the commented judgment, the Supreme Administrative Court (hereinafter: the Supreme Administrative Court) made a significant confirmation that a coalition agreement concluded by political parties constitutes public information within the meaning of the Constitution. The author emphasizes the legitimacy of the Supreme Administrative Court’s ruling but raises some contentious and questionable issues.