Citizen
Participation Facing the Transparency Challenge
by Dr. Attila Péterfalvi, President
of the National Authority for Data Protection and Freedom of Information
(Hungary).
In Hungary, one of the most important purposes of the 1989 rule of law
revolution was to guarantee the right of everyone to exercise control over
their personal data and to have access to public data. As regards the latest Hungarian constitutional reform, the
legislature left informational rights basically unchanged, and only the
institutional background was transformed.
The
Hungarian National Authority for Data Protection and Freedom of Information, as
the defender of two human rights, is responsible for supervising
and defending the right to the protection of personal data and to freedom of
information. Its responsibilities include both the state and the business
sector.
Freedom of information guarantees transparency regarding the activities
of public authorities and the spending of public funds. Citizens can only be active participants if they are informed –
appropriate information is fundamental to freedom of opinion. As clearly stated
by the Hungarian Constitutional Court: ‘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’.
Freedom of information is one of the most
sensitive rights in a democracy because the political forces always try to
control the flow of information. When in opposition, politicians seek greater
openness and transparency. When they are in power, they like to control the
flow of information to their own advantage.
In the field of data protection,
the Hungarian DP&FOI Commission controls both the public and private sector
since 1995. However, the obligation to safeguard FOI applies to the entire
state administration from the municipalities to highest state organs. From the
beginning, there was a gap in enforcement regarding publicity of public funds,
because, for example, the contracting private party did not have to assure the
publicity of the contractual relationship.
One eternal challenge involves transparency in the public sector and the
management of conflicts of interest. The initial case involved the list of teachers
who work as public servants. Under
Hungarian law, any information that is not personal in nature and is controlled
by a state or local government authority must be considered data of public
interest. Access to data of public interest is not subject to any restrictions
except for certain legally defined categories that can be kept secret.
In the broadest sense, one can
consider data to be of public interest if it is controlled by anyone carrying
out public duties. This includes acts, decisions, orders, proposals,
statistics, public tenders, contracts, photos, videos, and personal or business
information that have been made public by law.
According to
the law, all data, that is not
personal data, processed by a person or body exercising public
functions, are considered public information irrespective of their disclosability. Consequently, not all
public information can be disclosed.
Other categories
of information that are accessible by anyone is ‘information of public
interest’. This category includes data, other than public information, that are prescribed by law
to be published, made available or otherwise disclosed for the benefit of the
general public. Personal data in general cannot be considered to be of public
interest. However, there are narrow circumstances, precisely defined in the
law, when personal data may be made
public on grounds of being in the public interest.
The law
requires that the agency’s response include the name of the person undertaking tasks
within the scope of responsibilities and authority of the body undertaking public
duties, as well as their scope of responsibilities, scope of work, executive mandate
and other personal data relevant to the provision of their responsibilities to
which access must be ensured by law, qualify as data of public interest.
This data may
be disseminated in compliance with the principle of purpose limitation.
Provisions on the disclosure of data of public interest can be found in
Appendix 1 of the Freedom of Information Act (the public disclosure list), and
the specific laws relating to the status of the person undertaking public
duties.
In the
Hungarian public sector, there are specific laws governing the various types of
legal status of employees. For instance, there are separate regulations
regarding public service employees, civil servants (teachers, doctors), public
servants, and workers of armed bodies. These specific laws – on the basis of
the DP&FOI Law – declare that certain types of personal data of employees
can be accessed by anyone.
These types of
public personal data are regulated by the DP&FOI Act. Accessible
information includes: the name, the
job description and responsibilities, the title and all other personal data that may be of interest relating
to the public function, as well as all other personal data that is to be made
public by law.
An example
regarding the declarations of assets illustrates the idea.
Local
representatives and members of the Hungarian Parliament must publicly declare
all their assets. Their spouses, common-law spouses and their children
living in the same household are also required to declare their assets, but
their declarations are not made public.
These documents include – among others – all information pertaining
to their assets, real estate, chattels of great value (vehicles, works of art),
savings, liabilities, income, economic interest, souvenirs, subsidies.
So, since all of this data is considered to be in the public interest,
anyone is entitled to access it. However, there are exceptions for example
relating to protection of the privacy of teachers.
Listing personal information regarding a
whole profession may affect inequality in
the labor market. Therefore, the Authority must effect a
balance between protecting the privacy of teachers and the public’s right to
know. The goal of freedom of information is not to provide the public with a
complete database regarding personal information, but to allow them to be
informed about public affairs and the expenditure of public funds.
The next challenge relating to openness regarding the expenditure of
public funds involves a gap in the enforcement of FOI: State-owned enterprises
behave like private business entities in the enforcement of FOI.
According to the 2007 CVI Act on State Ownership, the
State may acquire (or dispose of) assets in order to: (1) execute State
functions; (2) fulfill societal needs; and (3) realise government economic
policy goals. In practice, some rationales for state ownership that have been
put forward, in addition to the “general public interest” have included energy
security, delivering country-wide, affordable mail services (the Hungarian
Postal Service Co.) or fulfilling cultural facilitation functions (the
Hungarian National Film Fund). State-Owned Enterprises fill this important gap in society. 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 in terms of access to
information of public interest.
Since the constitutional revolution of 1989, there have been two periods
when legislation provided for greater transparency regarding national assets:
in 2003 when the “Glass pocket Law” was adopted, and in 2012 when the
Fundamental Law, following the constitutional revolution, decreed transparency
regarding national assets.
The new Hungarian Fundamental Law in its
preamble – entitled 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”. The new Constitution provides a
strong basis of freedom of information: the Fundamental Law declares that the
right to know is a fundamental right; and it creates the national
constitutional foundation for transparency regarding public funds and public
property.
In Article 39, the 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.”
The Hungarian Freedom of Information Act (FOIA) guarantees wide
transparency regarding the government, local governments, and public finances.
The FOI Act obligates all public body to disclose a wide range of public
information on their home pages and to reveal information in response to
requests.
The Hungarian FOI Act does not specify the requirements for ensuring the
publicity of actions and assets, but obligates to process public officials to
release information regarding any request. A fundamental question in Hungary
involves the need to define entities that are regarded as performing public
duties. The law is relatively clear regarding certain persons and institutions
that are covered by the law. However,
there are institutions about which there is uncertainty regarding the law’s
application; these include companies established, directly or indirectly, by
public funds.
In the case of state-owned companies, the Act on State Property
clarified the law’s application: all data that relates to the management and
disposition of State property, other than public information, shall be treated
as information of public interest. A government which is active in the business
sector, mostly in the public service sector, must provide information on the
use of national assets on the part of state-owned companies. In my opinion,
this legislative solution was a radical step towards promoting real transparency
regarding the use of national funds, but these state-owned companies must face
the challenge of publicity regarding their management even if they suffer a
competitive disadvantage.
This broad definition of the term “public body” motivated that Hungarian
Authorities give guidance regarding the borders of the meaning of “business
secrets” and “freedom of information.” Our conclusion was that these
state-owned business players – within strict conditions – could justify keeping
management data secret, but they must still provide enough data so that the
public can monitor and control the use of the national assets.
Given 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.