Processed information vs. constitutional right to information about activities of public authorities

The HFHR, together with the Citizens Network Watchdog Poland, has filed an amicus curiae brief to the Constitutional Tribunal. The case concerns a constitutional review of the requirement contained in the Access to Public Information Act, according to which processed information can be obtained on matters which are especially important for the public interest.

The brief presented international standards and legal instruments that are crucial for the concept of processed information (Article 3 (1)(1) of the Access to Public Information Act). Documents quoted in the brief included the European Union Regulation on the public access to the documents of the European Parliament, Council and Commission. Although the regulation does not provide for any special categories of the “processed information”, it does state that in the case of requests for access to a very large number of documents or particularly long documents, the European institutions may confer with the applicant informally in order to find an optimal manner of examining the request. “Such an opportunity to reach an agreement with regard to the method of examining the request definitely increases the effectiveness and efficiency of the exercise of the right to obtain information possessed by the European institutions”, stated Katarzyna Wiśniewska, a lawyer working with the HFHR.

The amicus curiae brief discussed the definitions of the term “processed information” developed by the legal scholarship and jurisprudence. The brief noted that in practice the term is very broadly understood, which is contrary to the original intention of the legislator. “The concept of processed information was created in order to enable access to information which does not yet exist but may be specially prepared for the applicant in the result of undertaking intellectual work by an obliged entity. However, currently administrative courts frequently rule that not only an intellectual activity undertaken in order to develop new information may by a sign of “processing” information; other such indicators may also be the volume of a request or the amount of effort which may be required to execute the request”, said Bartosz Wilk, member of the board of the Citizens Network Watchdog Poland.

“We observe that extensively broad understanding of the term “processed information” is currently one of the most significant problems connected with the right to information”, adds Bartosz Wilk. The problem stems from the fact that processed information may only be shared in order to satisfy the condition of “particular importance for the public interest”. Courts tend to interpret this condition too narrowly. In practice it is almost impossible to prove it before an administrative court, which is demonstrated by the administrative proceedings that provides the cause for filing the constitutional complaint filed with the Tribunal.

In the document presented to the Constitutional Tribunal we highlighted the risks to the implementation of the constitutional right to information posed by the practice of application of the concept of processed information.