Government agencies have invented a new trick to conceal data of public interest

Some public authorities have “stepped up a gear” in recent months when it comes to data requests: they routinely refuse to release documents requested on the KiMitTud public FOI platform and suggest submitting a request for access to documents. Subsequently, the request for access to documents is also refused, but some documents are sent via citizens’ client gateway or e-mail. This procedure is a ‘clever’ way for the authorities to stall and avoid disclosure of documents – and in the process to obtain personal data of ‘nosy’ citizens.

For some time now, some government agencies have been using a new method to discourage citizens and journalists from filing freedom of information requests for data of public interest. The Pest county government office was the first to use the trick, but it is now being adopted by the Borsod and Tolna offices too, according to our experience.

Since the summer, the Pest County Government Office has given the following negative response to 16 data requests submitted to it via the KiMitTud data request portal operated by Átlátszó:

“Based on Section 27 (2) (g) of Paragraph 27 of the Information Law, it is not possible to fulfil your data request, taking into account the decision of the Curia published under No. 2024.9.208. Please submit your request for access to documents in accordance with the rules of Act CL of 2016 on General Administrative Procedure.”

This justification for refusing access is unlawful, say a legal expert we consulted.

The section of the Info Law that is referred to says that the right to access data of public interest may be restricted “with regard to judicial or administrative proceedings” – but we did not ask for documents of ongoing proceedings, but for decisions closing proceedings.

The reference to the case-law of the Curia, case-law no BH 2023.9.214, is also incorrect: this decision states that the President of the Court’s criminal reports do not have to be released – which has nothing to do with our freedom of information requests.

They propose request for personal access, than reject it

Request of personal acccess means that instead of procuring copies of files of public interest, one can only look at them in person and at best take notes. However, this procedure is not used for the releasing of data of public interest. According to Act CL of 2016 (Act on Administrative Procedures) referred to by the Government Office, it is primarily the clients (i.e. the parties concerned by the case) who may exercise the right of access to documents in administrative or judicial proceedings.

In addition, the Act states:

Section 33 (3) A third person may have access to a document containing personal data or protected data if he or she proves that access to the data is necessary for the exercise of his or her rights or for the performance of an obligation based on a statutory provision or a court or administrative decision.Article 33 (5) Unless the law restricts or excludes the publicity of the decision, after the conclusion of the proceedings, the final decision not containing personal data and protected data, as well as the order annulling the decision of first instance and ordering the authority that issued the decision of first instance to initiate new proceedings, may be inspected by any person without any restriction.

We did not, of course, submit the requests as a client, but as a third party, and we did not request protected data. And if necessary, the authority can send copies of the requested documents with sensitive data redacted.

Requests for personal access can be submitted through the citizens’ client gateway, a portal for official administration (ie. for requesting ID cards, drivers’ licences, reporting residence etc.) Following the government offices’ reply, we used this portal to request a building permit for the expansion of the battery factory in Göd, which should be publicly available on the Government Office’s website.

However, our request for access to the file was also rejected by the Pest County Government Office. In their reasoning, they said that since we are not clients, but a third party, we have no basis for such a request – exactly why we said that it makes no sense to recommend an acces request through the client gateway instead of a freedom of information request.

However, it was noted that the document we wished to inspect could be sent in “anonymised form”, so the requested building permit was attached to the refusal of the request for inspection.

In other words, we eventually received the document through a client portal, which could have been sent in the same way through Átlátszó’s KiMitTud data request interface.

Another journalist of Átlátszó, whose data request was also rejected on the same grounds, finally received some documents by e-mail.

The requested document is issued, but not made public

This completely absurd procedure achieves only one thing: stalling the release of important information. In addition, the document sent through the client gateway cannot be seen by the public on the Kimittud data request portal, so the information it contains cannot be accessed by others unless it is disclosed by the data requester.

In addition, while a freedom of information request can be filed anonymously in an email, or through our KiMitTud data request portal, if requesters are forced to use the citizen’s client gateway, they must share their personal information with the authorities.

The Pest county government office seems to have started a trend, as other authorities have recently also refused to release data in the traditional way

and have called for a request for access to documents.

This is how the Pest County Disaster Management Authority, the Tolna County and the Borsod-Abaúj Zemplén Country Government Office recently reacted to one of our requests for public data.

Following these refusals, we have contacted the National Authority for Data Protection and Freedom of Information (NAIH) and requested its investigation. We consider the refusal, as well as the order to submit access request through the client portal unjustified. The NAIH investigations have not yet been concluded.

In any case, we will continue to try to obtain the documents we need to know in a number of ways and, as usual, we will bring legal action if we cannot obtain important information otherwise.  However, we consider it equally important that the data we and citizens request remain available to the public on the KiMitTud platform hosted by Atlatszo – which already allows you to freely browse through more than 26,000 public interest requests and request public data with just a few clicks.