Another series of consultations on proposed law on transparency of public life – HFHR’s opinion and citizens-sponsored proposal of whistleblowers protection law

The second round of consultations on a proposed law on the transparency of public life has already started. Although the most worrying provisions were removed from the draft, the proposed measures still create serious risks. At the same time, the proposal fails to address any of the problems that currently appear in the areas that the proposed law seeks to regulate. The Helsinki Foundation for Human Rights has submitted a legal opinion on a recent version of the draft.

Moreover, responding to a call for concrete proposals made to the participants in the consultations by Minister Maciej Wąsik during the 6 November conference, the Stefan Batory Foundation, in collaboration with the Helsinki Foundation for Human Rights, the Trade Unions Forum and the Institute of Public Affairs, has presented a preliminary citizens’ proposal of the Whistleblowers Protection Act.

Access to public information – major obstacles removed but replaced by additional hurdles

Sponsors of the proposal abandoned the concept of introducing new grounds for limiting access to public information, such as “persistence” in filing applications. However, the proposed law still provides that in the case of processed information, an applicant is required to show a material public interest already upon the submission of a public access application. This is an incorrect solution as at this stage the nature of the information sought to be disclosed is not yet determined: it depends on an assessment made by an administrative body.

Lawmaking process less accessible to citizens

The proposed law still fails to address the worsening condition of the legislative process. In particular, it does not establish a single, uniform procedure of public consultations on legislative proposals sponsored by deputies, the Senate, Government or those submitted by the President. Currently, deputy-sponsored bills are exempt from the public consultation requirement, which makes it perfectly possible to submit a proposal and have it adopted in the same week. The measures proposed in the draft law, if enacted, will lead to the situation in which public bodies are under no obligation to consult proposed laws while citizens must comply with disproportionately strict lobbying requirements in order to merely express an opinion about such laws. Even more worryingly, any mistake on the part of interested members of the public, such as an outdated submission, is to result in criminal sanctions.

Whistleblowers without proper protection – better law proposed by citizens

Although the recent version of the proposed law decreases the arbitrariness of a prosecutor’s decision on awarding the whistleblower status, the proposal still enables law enforcement authorities to revoke such protection by a unilateral and unrestricted decision. The new law still grants enhanced protection only to those whistleblowers who have reported certain types of violations, such as corruption or money laundering.

In an attempt to address the absence of proper protection in the proposed piece of legislation, the Stefan Batory Foundation, in collaboration with the Helsinki Foundation for Human Rights, the Trade Unions Forum and the Institute of Public Affairs, has developed a working proposal of a law that actually protects insiders revealing abuses at their place of work. Though not a definitive version, the proposal is complete enough to be presented as part of the second round of the consultations.