Internal Security Agency ordered to disclose statistics on investigative methods

The Supreme Administrative Court dismissed the cassation complaint (case No. I OSK 1393/12) filed by the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego, ABW) against the March judgment of the Provincial Administrative Court in Warsaw (case No. II SA/Wa 2718/11). In the judgment the PAC ordered the Agency to disclose statistics on the number of the employed investigative methods, according to the disclosure request submitted by the Helsinki Foundation for Human Rights. The HFHR is represented by Artur Sidor and Beata Czechowicz, lawyers working pro bono.

The case has been pending since 2009, when the HFHR filed a motion for access to public information, namely the statistical data on the investigative methods employed by the Agency. The head of the Agency was refusing to disclose statistical data on investigative methods, arguing that they were protected as classified information and their disclosure might create a threat to the State’s security.

Agency’s counsel confirmed in open court that the Agency had the statistics requested in the HFHR’s motion. According to the Agency, their disclosure may create a threat to the State’s security because the data may be used to infer conclusions about certain activities conducted by the Agency. Counsel for the Agency argued that disclosure of the requested information will mean that the Agency will lose control over the data and that they may be later used for unknown purposes which may constitute a threat to the safety of the state. The Agency also cited article 10ea of the Prosecution Service Act which obliges the Prosecutor General to annually inform the Parliament on a total number of persons who were named in motions for, among other things, surveillance or wire taping orders. The Agency claimed that such collective statistics on investigative methods would better protect the interests of law enforcement services.

Ms Beata Czechowicz, attorney representing the HFHR, argued that article 10ea did not waive the Public Information Act. She also pointed to the fact that the catalogue of information accessible under the article did not conform to the scope of the 2009 HFHR’s motion. She added that the HFHR’s motion for access to public information covered solely historical data, hence did not pose any threat to the ongoing operations of the Agency. Ms Czechowicz also noted that the Agency failed to show any actual and identifiable threat that would result from the disclosure. She emphasised that the requested data related to Agency’s statutory duties, saying that law enforcement agencies “should not abuse their right to secrecy”.

Also Dr. Adam Bodnar, HFHR Deputy President, argued that the excessive length of time needed to obtain access to public information (over three years) was a key element of the case. He also noted that in its original motion the HFHR had requested only general information, and not the data on investigative methods used by the Agency in investigating specific types of crimes. Therefore, the argument concerning a threat to national security or public order is, in Dr. Bodnar’s opinion, nothing more than an unfounded hypothesis. Referring to article 10ea of the Prosecution Service Act, Dr. Bodnar said that the provision itself was an effect of the HFHR’s efforts made to obtain access to public information on the investigative methods employed by security and law enforcement agencies.

Counsel for Agency failed to confirm whether the statistics on investigative methods had been formally classified.

The Supreme Administrative Court dismissed the cassation complaint filed by the Agency. In the oral reasons for the judgement, judge rapporteur Małgorzata Jaśkowska stressed the fact that activities of public authorities, also those regarding classified information, are subject to judicial review. The Court subscribed to the view that the HFHR’s motion was general in its nature and noted that the Agency’s arguments for the refusal to disclose the requested data lacked adequate substantiation. According to the Supreme Administrative Court, the Agency failed to show that disclosure of the requested data posed any actual threat.

Also, the Court held that the Public Information Act may be waived only if a legal provision explicitly says so and describes in detail the extent of such a waiver. The SAC dismissed the argument that article 10ea of the Prosecution Service Act was a specific regulation that would derogate the general rules of the Public Information Act. This conclusion was based on the legal principle that exceptions should not be interpreted extensively. The Court further noted that the article in question concerns a different type of information than that requested in the 2009 HFHR motion for access to public information, and applies to a different entity than the one named in the motion. In consequence of the above, the SAC held that article 10ea of the Public Information Act did not preclude the right to request disclosure of public information.

The judgement is final.