Prosecutor General erred in refusing HFHR information about third party disclosures of information on criminal proceedings

The Provincial Administrative Court in Warsaw has reversed the decision of the Prosecutor General that denied the HFHR’s motion for disclosure of public information about the communication of information on criminal proceedings to third parties.
Article 12(1) of the Prosecution Service Act authorises the Prosecutor General to provide information about specific cases conducted by prosecutors to third parties. Already at the stage of legislative works, this provision was criticised as posing a threat to the interests of criminal proceedings and violate the privacy of persons whose information are processed in the proceedings. The media speculated that this provision was designed as a means for legalising the provision of information about criminal proceedings to the leader of the ruling majority.

The Foundation submitted a motion to the Prosecutor General, requesting the disclosure of information about how many times this legal basis has been invoked to provide information, who the recipients of information were, when information was provided, in what cases and what the reasons of the provision were. The Prosecutor General refused to grant the motion, arguing that it applies to processed information that requires a substantial input of labour to be obtained. The Prosecution Service has no IT system that would enable the separation of information requested by the HFHR. The Prosecutor General also argues that the disclosure of such information to the HFHR would not be justified by any crucial public interest as the HFHR has no real capability to change the relevant law.

The HFHR challenged the Prosecutor General’s decision before the PAC. In the complaint and at the hearing before the PAC, the Foundation questioned both the reasonableness of the Prosecutor’s contention that this information was processed and the alleged absence of a crucial public interest in the disclosure. “We argued that the HFHR should be allowed to monitor the practice of application of art. 12 of the Public Prosecution Service Act due to the controversy surrounding this provision and possibility of its use for unconstitutional purposes”, noted Marcin Szwed, the lawyer representing the Foundation at the PAC hearing.

The Provincial Administrative Court in Warsaw agreed with the Foundation’s arguments and revoked the challenged decision. The Court held that the Prosecutor General had been unable to sufficiently show that the information requested by the Foundation was processed information, especially given that this information’s temporal scope was substantially limited. Moreover, the PAC argued, the characteristics of prosecution service’s IT system could not determine the nature of the information sought. PAC held that even on assumption that this was processed information, its disclosure would be justified by a crucial public interest. This assertion is based on the HFHR’s reputation and its track record of human rights protection activities in Poland and also on the controversial nature of the authority expressed in art. 12(1) of the Prosecution Service Act. The Court observed that this provision has been critically assessed not only in Poland but also abroad, most notably by the Venice Commission. Providing the Foundation with access to information about the provision’s application would be justified by a crucial public interest because this would enable the HFHR to determine whether this authority is or is not misused.