Protection of Fundamental Rights in the Light of Freedom of Information in Hungary
by Attila PETERFALVI, President of the National Authority for Data Protection and Freedom of Information, Hungary.
Information is the currency of democracy – This phrase is
often attributed to US President Thomas Jefferson (although there is no
evidence that Jefferson has ever used this phrase, rather, the quote first
appeared in 1971 connected to Jefferson in a speech by US consumer advocate
Ralph Nader.)
Within the modern state administration concepts of good
governance and fair administration the transparency of the public sphere is an
essential element. The free flow of information is based on the right to
freedom of information. Why is it important? Freedom of information (FOI) is
not only a democratic demand but also an important tool against corruption.
That’s why all the knowledge and practical impact of this constitutional right
has to find its place in the legislation, public administration and education
of the civil servants and other decision makers since they will be the
responsible persons making decisions on whether to open or shut the door in
front of the requests for the disclosure of public information.
The protection of fundamental rights in the light of freedom
of information in Hungary attracts great attention at international level
nowadays.
The totalitarian communist regime followed the policy of “no
transparent government and transparent citizen”. The
Hungarian democratic constitutional Revolution in 1989-1990 was characterized
by the fact that FOI and data protection played a crucial role in the
democratization of the legal system. So was the policy transformed to “transparent
government and no transparent citizen”.
In 1991, the Hungarian Constitutional Court declared the
division of information power as a constitutional principle and adopted
important decisions for example the prohibition of the use of the all-purpose
personal identification number[1].
The Court also clearly stated that:
“The Freedom of Information is closely linked to
freedom of expression, which is the basic ‘mother right’ of communication
rights and part of the fundamental values of a democratic society in Hungary.
These two fundamental rights guarantee freedom of discussion of public affairs,
collectively allow an individual to participate in social and political
processes... Without being monitored by its citizens, the state becomes an
unaccountable and unpredictable machine, and this is especially dangerous
because a non-transparent state represents an increased threat to
constitutional rights”[2].
Thus, FOI
is one of the most sensitive rights because the political forces always like to
follow their own trend to communicate their vices and virtues. They urge a
larger publicity, whereas as governing force they prefer to communicate
according to their own perceptions.
Since 1989, there were two governmental periods in Hungary
when the legislation opened more transparency on national assets: the first one
was in 2003 when the left-wing coalition adopted the “Glass Pocket Law”, the
second one was the right-wing coalition in 2012, when through a constitutional
revolution, the Fundamental Law itself decrees the transparency on national
assets. The new Hungarian Constitution in its preamble – called National
Commitment and Belief – proclaims that “true
democracy exists only where the State serves it citizens and administers their
affairs justly and without abuse or bias”.
In 2011, the new Privacy and FOI Act was created and the new
DPA – National Authority for Data Protection and Freedom of Information (NAIH)[3] –
was set up. The NAIH has a dual set of tools, ombudsman and authority-like. The
ombudsman-like tools are carrying out investigations, providing legislative
opinions, intervening or participating in court proceedings, annual reports,
issuing non-binding recommendations and strong international representation
functions.
As an authority on the cases of serious infringements the Authority
initiates data protection administrative proceedings, imposes sanctions e.g.
administrative fines, may initiate special administrative proceedings for the
control of classified data (“State Secrets”) and maintains a data protection
register.
The Hungarian Privacy and
Freedom of Information Act (FOIA) guarantees relatively wide transparency
regarding the government, the local governments, as well as public finances.
The FOI Act obligates all public body to disclose a wide list of public
information on their home pages and to provide information in reply to a
request.
The Act does not specify the types of public duties but
obligates to process public information to any request. A cornerstone of
creating the publicity in Hungary has always been the task of defining the
circle of organs performing public duties. However, there are institutions by
which the categorization is predominantly questionable; these include typically
companies established, directly or indirectly, by public funds.
In the case of state-owned companies, the Act on State
Property clarified the situation: all data that relates to management and
disposition of State property, other than public information, shall be treated
as information of public interest. A government which
is quite active in the business sector, mostly in the public service sector,
has to provide information on the use of the national assets as part of the
state-owned companies. In my opinion, this legislative solution was a radical
step towards the real transparency of national funds, but in the meantime,
these state-owned companies need to face the challenge of publicity of all of
their management even if they get in a competitive disadvantage.
According to the Hungarian legal background, with the help
of the Constitutional Court’s interpretation, a body or person that is vested
with powers to manage or control State property shall be treated as a person or
body exercising public functions pursuant to the act on access to information of
public interest.
The main dilemma we have to deal with is how far can FOI go
without harming justifiable interests? Here you find some problematic areas:
– State actors with
market functions e.g. state-owned companies, funds: public duty and
profit-oriented activity. However, if legitimate economic interest can be
proved FOI might be proportionally restricted.
– Business secret:
the basically civil-law instrument seems inappropriate to be interpreted and
used by these actors. The same applies to the information related to
decision-making process in the private sphere.
– Political parties
(transparency of the financial management) but from legal point of view
they are not bodies with public service functions! A 1994 Constitutional Court
decision says that parties, which have reached 1 percent of the votes in the
elections may receive financial support because their activities are linked to
the representation of the people, based on the expression of popular will. So,
it is clear that some of the tasks which are closely linked
to political parties are related to public interest and public services.
According to the current regulatory environment, classification of political
parties as bodies with public service functions does not seem feasible. This
affects the financial management of political parties in such a way, that this
data cannot be made available as data of public interest. However, using other
legal solution for the sake of accessibility of the information is the
determination of data public on grounds of public interest.
In Article 39 the new Fundamental Law states that:
“every
organization managing public funds shall publicly account for the management of
those funds. Public funds and national assets shall be managed according to the
principles of transparency and of corruption-free public life. Data relating to
public funds or to national assets shall be recognized as data of public
interest.”
However,
transparency of public funds shall be weighed against other legitimate
interest. This means that in certain instances information concerning the
management of these funds may not be disclosed. In some instances, the
limitation of FOI is regulated by legislative acts. However, in relation to its
constitutional duties, the Authority may issue soft-law documents discussing
certain legitimate interests of public bodies that need to be balanced against
FOI. Specific examples are the following:
– A separate act
regulating the restriction of publicity (e.g. Act on the investment related
to the maintenance of capacity of the Paks Nuclear
Power Plant, or Act on the public services)
– Detailed FOI
regulation built in the relevant act (e.g. in the Act on the Transparency
of Public Finances)
– Issuing and
following specific NAIH recommendations. Our main message is that only
those state-owned companies could recall on business secret against transparency,
whose activity or function is a traditional profit-oriented business activity,
and has no public duties provided for by the relevant legislation. If these
market players can prove legitimate economic or market interest, within narrow
limits (ex. preliminary documents, business plan), FOI can be proportionally
restricted.
The wide interpretation of public body motivated our
Authority to issue a recommendation on the borders of business secret and
freedom of information. The conclusion was that these state-owned business
players – within strict conditions – could justify the secrecy of their
management data, but they have to provide enough data to the public to control
the use of the national assets.
The main rule is the transparency of every data in
connection with public functions and public funds. Nevertheless, in each case,
in every law-making process we have to face the same questions: the
transparency of managing public funds and “the moral and economic purpose
according to the common sense and public good” should stay in balance. Based on
the already developed constitutional cornerstones we recommend the application
of a public interest test, which corresponds to the protection of legitimate
and fair market interests, but does not make effectiveness of the basic legal
requirement of management of public funds impossible, and it reflects the
constitutional requirement, which is set out in Section 30 (5) of the Privacy
and FOI Act.