Freedom of information in court: the Register of Átlátszó’s Proceedings gets off to a flying start
As a result of our requests for public data we have more than a dozen pending proceedings and since the founding of Átlátszó, we have brought more than 50 suits in courts. Although litigation is still not an ultimate goal but rather the consequence of our activity, the Register of Átlátszó’s Proceedings supports this statement and aims to make public all the relevant information regarding our actions in courts. Decide on your own whether we misuse our rights or the data custodians act in bad faith.
With the Register, which will be kept up to date, our readers will have access to a transparent and comprehensive database about our lawsuits. The Register contains the texts of our requests for public data together with our petitions for judicial review. Their way can be followed until the decision of the court, or in case of appeal, until the decision of the court of second instance or even until the decision of the Constitutional Court. We also intend to help the citation in other cases by indicating the file numbers. Furthermore, we will publish those – recently received – decisions which in our news reports have only been summarized.
We believe that data speaks more candidly than words – that is the ultimate reason why we start actions to acquire them. That is why we prepared a detailed analysis, too, assuming that anybody (interested individual, lawyer, data custodian, or even an MP) who tries to deliver an opinion about our litigations will be able to establish it on the pure facts. But it is worth considering before any analysis, that (as obviously we are not our own enemies) we directly brought lawsuits in those particular cases where the denial of our requests seemed clearly unlawful and the problems at stake were thought important enough.
That is a false suggestion, therefore, that we are specialised in requesting large amounts of data which mean huge burdens on the data custodians: as the Register shows our requests usually include rather concrete datasets which hardly can be called extensive. If the data would be asked not by us but by the leader of a state agency, the request presumably could be compiled in half an hour. And in those cases where we really did ask for a wide range of documents (eg. for all the contracts of the MTVA’s 48 sub-contractors) we usually did so because those documents should have been publicized by the data custodian itself without any further request, according to the Act on Freedom of Information.
Our effectiveness (we are successful in more than two thirds of the cases) shows per se that usually we estimated our chances correctly, but the picture will be even clearer if we sort the closed cases as follows:
The first group contains those cases where the request was accomplished by the data controller during the judicial proceeding but before the decision of the court. This is the most favourable result for us, which we try to forward with our humble opportunities (eg. in these cases we never ask for expenses of litigation). In case of non-response we usually submit the petition just before the deadline, which means that one and a half months have already passed after the request. In sum, the reason behind the high number of these cases can rather be the result of the fact that the defendant either has not adopted a clear position about the request earlier or has refined it (namely, that there was no good reason behind the denial), and then there are simple bodokyistrative delays.
In the second and largest category can be found those cases which we won by judgement. Some of them results from the lack of the defendants’ cooperativeness. Mostly, the denial could only be proven effectively if the data custodian handed in the requested data for the court. The court should treat the information as confidential and we would not have access to them during the judicial proceedings. Nevertheless, only one defendant availed itself of this opportunity yet (partly successfully, to the satisfaction of both parties).
Lastly, let’s see what do our lost cases have in common. Judicial practice is more or less coherent in enforcing the guarantees of the Freedom of Information Act and the Civil Code. Rarely, but it still happens, that the courts guarantee the publicity of the requested data based on pure constitutional principles only. Consequently, if we lose important cases it often happens because courts use rules other than the Freedom of Information Act’s. For example in the court’s opinion, the loan agreements of the MFB (Magyar Fejlesztési Bank, Hungarian Development Bank) are confidential according to the norms of the Act on Credit Institutions and Financial Enterprises (Act CXII of 1996). To give another example, the income certificates of sport associations which confer entitlement to tax benefits (corporate tax) are confidential, based on the Act on the Rules of Taxation (Act XCII of 2003). Even against these decisions, we would like to make these data available to public. Thus, we usually exploit the extraordinary legal possibilities. Still, the results of these actions are not yet known: the Constitutional Court has only commenced to investigate our first constitutional complaint regarding the management reports of the State Opera House.
This article was published in Hungarian on 1 July 2013 here. The text was translated by atlatszo.hu volunteer Emese Szilágyi.