Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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Hungary’s Constitutional Court upheld a provision of the State Secrets Act defining an official secret but found that Act LXIII pertaining to the Disclosure of Information of Public Interest lacked certain guarantees necessary to protect the right of access to information. The States Secret Acts was found to be constitutional because it was limited in scope, applied only to a narrow category of official secrets with sufficient procedural guarantees in place to prevent arbitrary classification; and because a substantial judicial review of a non-disclosure decision was available. The Court, however, found Act LXIII to be subject to abuse because it permits the arbitrary denial of access to public information relating to internal government decision making processes for up to 20 years. Therefore, the Court required the legislature to adopt changes to ensure that access to the classified deliberations should not be restricted after a decision has been made, there must be an opportunity to challenge a decision to withhold information on the merits as well as on procedural grounds, that the period for restriction must be limited and the law must clearly define the restricted category of information.
This case analysis was contributed by Right2Info.org.
The petitioner requested the annulment of two provisions of law on the grounds that they violated Article 61(1) of the Hungarian Constitution, which guarantees the right to “distribute information of public interest”; and Article 8(2), which provides that a law “may not restrict the basic meaning and content of fundamental rights”.
The petitioner asserted that: (1) Section 4(1) of Act LXV of 1995 on State Secrets and Official Secrets, which defines an official secret as “information that has been classified as such by those [bodies] with the authority to do so,” makes classification discretionary and does not provide sufficient guarantees to prevent unjustified restrictions on the freedom of information; and (2) Section 19(5) of Act LXIII of 1992 on Disclosure of Information of Public Interest which states that “any data for internal use or that is related to the decision-making process” is not to be disclosed for twenty years “from the date it is processed” unless the head of the respective agency authorizes access to the piece of information within the 20-years period could be used to prevent the publication of any information and that the time restriction on publicity was unjustifiably excessive.
The Hungarian Constitutional Court rejected the petition to declare the provisions unconstitutional and annul them.
Referring to its own case-law, the Court reiterated that when it comes to public information it is not up to the citizen to justify his or her right to access public data, but up to the relevant state agency to prove that the law allows it to deny access (section III, para. 1). It also affirmed the proportionality test to be employed when balancing competing interests, namely, that the importance of the objective to be achieved must be proportionate to the restriction of the fundamental right concerned. It then went on to distinguish the two provisions by the type of data each protects: (1) official secrets and (2) automatic classification (of information underlying a decision) (section III, para. 3).
The Court said that the reason the law allows for official secrets is to guarantee that proceedings of state bodies are uninterrupted and free from external influence. The Court said that the lack of classification of such information would violate the interests of the state but it emphasized that data falling under this provision must be identified narrowly and limited to the most justified cases. The Court found Section 4(1) of Act LXV constitutional because it was limited in scope, applying only to a narrow category of official secrets with sufficient procedural guarantees in place to prevent arbitrary classification by any one agency; and that a substantial judicial review of a non-disclosure decision was available (section III, para. 3.2).
However, the Court found that Act LXIII lacked certain guarantees necessary to protect the right of access to information and therefore called on the legislature to remedy the situation by adding new provisions to the law.
The Court found the legitimate aim of automatic classification is to protect the quality and effectiveness of public service. As the Court had previously stated, if every piece of information underlying a decision in the public sphere was to be individually classified, public agencies would suffer under an excessive burden of administration which would affect the efficiency of their workflow. Therefore, according to the Court, such automatic classification can be constitutional “under appropriate (constitutional) statutory conditions” as a proportionate restriction of freedom of information (section III, para. 3.1.).
However, the Court found that this provision lacked sufficient guarantees against abuse in four ways. First, it unnecessarily restricts a fundamental right of freedom of information as it provides an opportunity to refuse access to information after a decision has already been made. After the decision is made, the reasons justifying the non-disclosure of the data are no longer valid. The 20-years’ time frame for classification makes it possible for public authorities to withhold information that no longer serves any future decision-making purpose and therefore lacks the constitutional basis for restricting freedom of information. Second, the provision does not provide a sufficient mechanism for a legal remedy because judicial review only permits review of procedural, and not substantive, issues. Third, the provision improperly provides for an indefinite restriction, because storing information constitutes the “processing of data” under the law and the impugned provision forbids disclosure for twenty years “following processing.” Finally, the conceptual vagueness of the information subject to restrictions – “information created for internal use and in connection with the preparation of decisions” – permits the arbitrary denial of access to public information (section IV, para. 2).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by requiring the amendment of legislation to enable greater access to data held by state agencies.
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