Key issues related to draft law on public life transparency

Last week, the Government presented a draft law on the transparency of public life. Proposed provisions raise many doubts.  As part of a coalition of twenty non-governmental organisations, the HFHR presents the key problematic issues related to this legislative proposal.

Public information: persistent confidentiality

The draft law introduces yet another possibility of restricting the right to information: a public body may refuse to disclose information on the ground that the application has been filed “persistently” and that its admission would “materially hinder the operations of an entity obliged to disclose information”.

Public information: pay first, access later

The draft law provides for an opportunity to make a disclosure of public information conditional on the payment of a “preparation fee”. It is possible to request a fee for a disclosure of information under current law but a failure to pay or a challenge against the fee’s amount does not result in withholding disclosure. After the proposed changes enter into force, a request for the payment of the fee will be just another way to deny a disclosure application.

Property statements: full disclosure

The newly proposed law extends the category of persons who are legally obliged to submit property statements and requires that all statements (save for those submitted by officers of secret services) be published online. This rule is to apply not only to Sejm deputies or local government officials but also driving test examiners, municipal police officers, personnel of the National Labour Inspectorate or State Treasury Solicitors’ Office, professional civil servants, or even the firefighters and support staff of the National Fire and Rescue Service.

Administrative proceedings: privacy not protected

In accordance with the law currently in force, an administrative body may refuse to disclose public information due to the need to protect the privacy of a natural person. The proposed law limits this basis for a refusal in administrative proceedings. Under the new law, records of administrative proceedings, and especially administrative decisions will become public information accessible in the public information disclosure proceedings.

Legislation: lesser transparency and openness

The draft law does not introduce any new mechanisms for maintaining the transparency of the lawmaking process. To the contrary, it lowers currently applicable standards. For public consultations, the newly proposed law repeats the contents of the binding resolution on the works of the Council of Ministers. However, differently from the resolution, it does not designate a time limit for the submission of opinions or complaints. The CoM resolution mentions a 14-day period, which may be shortened in extraordinary circumstances. The draft law sets out no time limit whatsoever.

Lawmaking only for persistent

Following the footsteps of the currently applicable Lobbying Act, the draft law provides for two forms of citizens’ participation in lawmaking: lobbying and professional lobbying. However, differently from the current law, the draft imposes hefty disclosure obligations on certain entities, such as organisations, institutions or persons interested in legislated laws (but not companies of enterprises). A failure to make such disclosure is to be a criminal offence. The absence of any of such information invalidates the right to present an opinion statement.

 Whistleblowers: distortion of key concept

The draft law awards the status of a whistleblower only to persons who report a suspicion of a corruption offence to law enforcement authorities. This status is awarded and lifted by an arbitrary decision of a prosecutor, which means that a whistleblower’s fate is in the hands of a prosecutor only. If a prosecutor denies protection to a whistleblower, the latter has no legal option to appeal such a decision. The new law provides no protection for persons reporting threats that are not considered criminal offences such as safety at work risks, mobbing or sexual harassment.

Transparency law developed in nontransparent and confidential manner

The draft law, prepared by the coordinator of special services, having been worked on for months, without publication of any policy papers. It has not appeared on the official list of legislative works. It was revealed on 24 October 2017, public consultations are to take 6 working days, and the law is to enter into force already on 1 January 2018. Contrary to official announcements, public consultations are superficial, illusory and rushed.