Lex Átlátszó reloaded and fired
After the previous veto of the President, the governing majority passed again the amendment of the Freedom of Information Act (Act CXII of 2011) but President János Áder still had the opportunity to put a veto on the amendments and request for the preliminary norm control of the Constitutional Court. According to the Fundamental Law, if the Parliament amends the Act returned due to any disagreement of the President, the examination of its conformity with the Fundamental Law may be requested in relation to the amended provisions.
Yet, such is the case, the new provisions interfere with the Fundamental Law and violate the right to freedom of information, effective remedy and fair trial. According to the amendment, in case of request for data in connection with the management of bodies performing public tasks if the requested data is “comprehensive”, “detailed” or involves data “on the level of accounts”, different provisions of special law shall be applied. If the request was refused by reference to the former provision, the National Authority for Data Protection and Freedom of Information should be notified as it is prescribed by Article 52 of the Freedom of Information Act. As we explained earlier, when this new norm was no more than a bill: just like the original text, these rules still make possible a notable amount of refusals, the methods may change but the results are exactly the same. In one respect, the situation became even worse: the new regulation which refers to the investigation of the Authority clearly aims the exclusion of judicial review.
Previously, when Áder had returned the early version of the amendment to the Parliament together with his comments, he had disagreed because the adopted norms could lead to the false conclusion that the possibility of judicial remedy was abolished. This time the restraint on the right is not only a possible result of false reading but a very real effect. All in all, President Áder would have had not only the opportunity but the serious reason for veto.
President János Áder signed the amendment of the Fredom of Information Act, the “Lex Átlátszó” on 21 June 2013, and ordered its publication. Memorable enough, the goal of the governing majority was to prevent improper requests for data.
The original bill would have excluded special rights defined by other legal provisions from the scope of the Freedom of Information Act, with this undermining the guarantees of the Act, especially the most important of them, the right to judicial remedy, and should have been applied with retroactive effect to pending cases. President Áder had not signed the amended provisions at first, but had returned them to the Parliament instead. The legislator – as we expected – modified its original conception but the retroactive effect and the regulations against improper requests for data – with somewhat different content – remained in the new version of the bill as well.
Although we asked the President to deny signing the amendment and request for the preliminary norm control of the Constitutional Court, he has fallen short to avail himself of this opportunity. In conclusion, the Act has been amended, and from the present time in case of refused request for “comprehensive” or “detailed” data or for information which involves data “on the level of accounts”, judicial action cannot be started but the National Authority for Data Protection and Freedom of Information should be notified instead, moreover, these provisions shall be applied in pending cases as well.
We are curious about what kind of interpretation will be given to these vague definitions by the practice, how the Authority will use its new scope and how the courts will decide on the current cases.