Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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A Regional Court of Appeal in Hungary held that the Ministry of Defense, as an organ performing state functions, was obliged to disclose a list of Swedish investments in Hungarian companies which were required in the framework of a lease agreement between the two countries. Gergely, a journalist, requested information on the investments which the Ministry of Defense rejected, denying the public nature of the information requested and relying on the commercial secrets exemption. The Court found that, pursuant to the RTI Act, the requested information qualified as “public information” and the Ministry as a “data controller” because the agreement was funded by public monies. The Court, further rejecting the Ministry’s arguments, determined the requested information concerned already approved and final decisions and therefore was not eligible for any related exemptions.
This case analysis was contributed by Right2Info.org.
In 2001, the Hungarian Air Force decided to lease Swedish Gripen-jets in the framework of an offset agreement. According to this agreement, Swedish companies had to make investments in Hungary in the amount of 800 million euros in exchange for the lease. Dr. Zsófia Gergely, a journalist, requested a list of the offsets approved by the Gripen Offset Committee, but the Hungarian Ministry for Development and Economy rejected her request, denying the public nature of the information requested and referring to the commercial secrets exemption.
The first instance court held that the requested list constituted public information, did not harm commercial interests, and ordered disclosure. The court also ruled that it could judge the case solely on those arguments that the Ministry enumerated in the rejection letter. The Ministry appealed.
The Regional Court of Appeal agreed with the Ministry that during appeals proceedings over the denial of an information request, the court needs to examine not only the reasons enumerated in the rejection letter but also all the arguments the defendant presented during court proceedings. It also held that the burden of proof lies with the organ handling the information.
The Court noted that the lease agreement for the Gripen-jets was signed by the Ministry of Defense (representing the Hungarian government) as well as a Swedish state-run company (representing the Swedish government). The Court found that, pursuant to the RTI Act, the requested information qualified as “public information” and the Ministry as a “data controller” because (a) the offset agreement was directly related to the lease agreement, which was funded by public money, and (b) the Ministry clearly is an organ that performs state functions.
Moreover, the Court rejected the Ministry’s claim that the requested documents comprised preparatory documents created during the decision-making process, in which case the RTI Act would have permitted their non-disclosure for up to 10 years or their release solely on a discretionary basis. The Court noted that the information the journalist requested was related to already approved and final decisions—in several cases fulfilled deliverables—not preparatory documents. The fact that the overall offset procedure had not been finalized did not mean that no final decisions had been made in cases of already approved offsets. As a result, disclosure of the requested information could not be discretionary.
Lastly, the Court was not receptive to the Ministry’s argument that the deliverables were based on agreements between private parties and therefore contained commercial secrets. It held that the fact that the parties agreed on non-disclosure did not in itself make the withholding of information lawful.
In these circumstances the Court found that the Ministry failed to prove that the rejection of information was lawful and well-founded and it ordered disclosure accordingly.
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