Access to Public Information
Rob Evans v. Information Commissioner
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The Constitutional Court of Hungary ruled that the government is obligated to keep minutes of its sessions, and that its lack of established procedures directly and seriously restricted the right of access to public information. The Court repeatedly emphasized that one of the most important aspects of democratic governance is the transparency of its decision-making processes. It further held that parliament was obliged under the constitution to pass legislation requiring the keeping of records of governmental sessions. The Constitutional Court therefore summoned parliament to fulfill its legislative duty before 31 December 2006.
This analysis was contributed by Right2Info.org.
Two petitions to the Hungarian Constitutional Court challenged the constitutionality of provisions on record keeping of governmental sessions. One of the petitioners asked for a declaration of unconstitutionality based on the omission of such record keeping, because parliament did not prescribe the duty of basic record keeping of governmental sessions, and thus violated the right of access to public information secured in Article 61.1 of the Constitution. The other petition questioned the related provisions of Act LXV of 1995 on state and official secrets. Among others, the petitioner argued that any data created in the preparation of a decision, for use in-house, relating to the operation of a body formed by the government and based on its rules of procedure as well as any summary, memento or record pertaining thereto, can be made a state secret.
Before making a decision, the judges of the Constitutional Court reviewed the relevant regulations of several European countries. The Judges found that individual states have different practices and the Hungarian procedure, namely that the Constitution delegates the elaboration of minor provisions concerning the operation of the Government to the Government itself, is similar to regulations of several other European countries. After this international review, the judges of the Constitutional Court examined the development of regulations concerning the record keeping of governmental sessions. They stated that this question was addressed in governmental resolutions setting out the rules of procedure of the Government, but no coherent practice was developed in this field. Individual governments changed their regulations time and again, according to their own conceptions. In this way, regulations have varied over the past sixteen years, from compulsory word-to-word recording to the almost complete lack of record keeping. According to the current rules of procedure, a recording is made of governmental sessions, which serves as word-to-word minutes of sessions.
In its decision, the Constitutional Court found that record keeping (and especially the lack of it) of governmental sessions concerns more than one fundamental right, among others the right of access to public information, referred to by the petitioners. The judges of the Constitutional Court repeatedly emphasized that one of the most important aspects of democratic governance is the transparency of its decision-making processes. Current regulations give a relatively broad margin for the Government in this respect. Naturally, when deciding its rules of procedure, the Government is compelled to respect the fundamental right of access to public information; otherwise the provisions of the rules of procedure can be annulled by the Constitutional Court. It is obvious however, that a decision of the Constitutional Court can only prevent future legal injuries, which is not enough. The Court was of the opinion that the Government is under the obligation to keep records for public information, whether for a short or a long period of time, because it would otherwise directly and seriously restrict the right of access to public information. Article 8.2 of the Constitution states that an Act is needed to set out the rules concerning fundamental rights and duties. Thus, the regulation on record keeping regarding governmental sessions is also in the legislative domain. With respect to the above, the Constitutional Court held that parliament, by omitting to provide for the obligation to keep records of governmental sessions, created a situation of unconstitutionality. The Constitutional Court therefore summoned parliament to fulfill its legislative duty before 31 December 2006.
Thereafter, the Court examined the petition concerning the Act on state secrets. Rendering secret statements made during governmental sessions is a direct and serious restriction of the right to access to public information. However, not all records of governmental sessions can be made secret, only data declared secret through a legal procedure indicating that their publicity or access by unauthorised persons directly violates or threatens protected interests, namely: national defence, national security, criminal prosecution, prevention of crime, central financial interests, foreign or international affairs or jurisdiction.
In addition, in the case of an unlawful declaration of secrecy, the Data Protection Ombudsman and courts provide an adequate forum for legal remedy. Therefore, the challenged provision cannot be viewed as an unreasonable restriction of the right of access to public information.
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